DUI Offenses in the Tampa Bay Area
By The Kilfin Law Firm, PC, Florida
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In any Florida DUI case, there are two proceedings that an accused person must be aware of: one is administrative in nature, and the other is criminal. This article presents an overview of each proceeding, including the potential implications of each, and some of the defenses that may be raised.
1. The Administrative Proceeding
The Florida Department of Motor Vehicles, Bureau of Administrative Reviews, oversees the administrative proceeding. This is separate and apart from the criminal case, which proceeds through the court system and is overseen by the assigned judge. The only potential penalty in the administrative proceeding is the suspension of your driver's license for a prescribed period of time. The Department of Motor Vehicles does not have the authority to impose fines (although they may assess fees for hearings, license reinstatement, and things of that nature), they do not have the authority to incarcerate you, or to place you on probation. The imposition of fines, incarceration, probation, and other mandatory conditions is within the purview of the court system exclusively.
The length of your administrative license suspension will depend on whether you refused to submit to a breath test, whether your results were at least 0.08 if you did submit to a breath test, and whether you either refused or submitted samples of at least 0.08 in any prior DUI case(s). In cases where urine is collected to test for the presence of illegal substances, and there is neither a refusal or an unlawful blood or breath alcohol level, there is no administrative license suspension or proceeding.
Upon being arrested for DUI, the officer will usually confiscate your driver’s license and will issue you a citation. The citation acts as an unrestricted driver’s license for the ten days following your arrest. It is within this ten day period that you must take action, lest your license be suspended. The "clock" on the administrative suspension begins to tick on the date of your arrest so even though you are driving with the ticket, you are receiving "credit" nonetheless.
You have the right to a formal hearing wherein a hearing officer will review the propriety of any potential loss of your privilege to drive. The burden of proof is very low at these hearings and, for that reason, many administrative suspensions are upheld. At the time the hearing is requested, the Department will issue you a permit, so that you may continue to drive, pending a final determination by the Department as to the propriety of the suspension. The permit is usually valid for 40-45 days. With the permit, your driving privileges are restricted - you may only drive for work purposes, to go to church, to the doctor, to school, or to otherwise maintain a livelihood. You cannot drive for fun or leisure.
Often times, an attorney will scour the paperwork submitted by the arresting officer (which the Department of Motor Vehicles provides following the request for hearing) for technical defects or missing documents in an effort to invalidate the suspension. If there are no defects, and all of the requisite documents were submitted, the attorney may elect to subpoena the arresting officer and/or the breath test operator (they are often the same person, but not always). If either does not appear for the hearing, after being lawfully served with a subpoena, the suspension may be set aside.
If this is your first DUI arrest, and you submitted breath (or blood) samples of 0.08 BRAC or higher, the period of suspension is for 6 months. If your attorney succeeds in having the suspension set aside, then there is no administrative suspension and you can have your privilege to drive immediately re-instated. If your attorney is unsuccessful at the hearing, then the suspension remains in effect and you must also refrain from driving for 30 days following the expiration of your permit. At the end of the 30 day period, you can petition for a hardship license, which will allow you to drive for certain purposes, for the duration of the six month suspension.
If this is your first DUI, and you refused to submit breath samples (or blood, where the request is lawful), the same principles apply except that the period of suspension is for one year (not six months) and, in the event the suspension is upheld following a hearing, you will be subject to a hard suspension period of 90 days (not 30).
If you have previously been arrested for DUI, and this is the second time you have blown above a 0.08 BRAC, then the period of suspension is for one year. If you have previously been arrested for DUI, and this is the second time you have refused to submit breath samples, then the period of suspension is for 18 months. If your pending DUI is not your first, the Department of Motor Vehicles has the discretion to issue you a hardship license unless: (1) you have two or more prior DUI convictions; or (2) you refused to submit to a lawful test of your blood, breath or urine in your pending DUI case, and you refused to submit to a lawful test of your blood, breath or urine in a prior DUI case. Thus, if this is a second refusal, and you are unsuccessful at the administrative hearing, you will not be able to drive, for any purpose, for a period of 18 months.
After July 1st, 2013, first time DUI offenders in Florida were given the option of waiving their right to a formal review hearing and obtaining a hardship license for the duration of the applicable suspension. This option eliminates the possibility of a “hard” suspension (i.e. 30 days in the case of a first DUI with an unlawful balance and 90 days in the case of a first refusal), but before electing to go this route, you should discuss it with your attorney, if you have one.
If the administrative suspension is upheld, it can only be undone by a successful appeal or a finding of not guilty by a judge or jury in the criminal case. You should know that a nolle prosequi in the criminal case will have no impact on the administrative suspension. Also, the ruling on an appeal can sometimes take longer than the period of suspension itself, which is certainly something to consider in deciding whether to seek appellate review.
2. The Criminal Proceeding
In a Florida DUI case, the State is required to prove, beyond a reasonable doubt, that the accused person drove, or was in actual physical control of a motor vehicle, and (a) was under the influence of alcohol, or chemical or controlled substances, to the extent his or her normal faculties were impaired, or (b) had a blood or breath alcohol level of 0.08 grams (or more) of alcohol per 100 milliliters of blood or 210 liters of breath. Thus, there are two ways for the state to make its case. Where the breath or blood alcohol level is above that at which Florida law presumes impairment, the state will proceed under (b). Where there is no evidence of a breath or blood alcohol level at or above a 0.08 (because the person refused to submit to the requested test), the state will proceed under (a), and attempt to prove that the person is guilty of DUI because his or her normal faculties were impaired by alcohol or a controlled substance (or both).
The criminal proceeding is a little more intricate than the administrative proceeding. On the ticket you receive from the arresting officer, there will usually be a court date. This is your arraignment. The purpose of an arraignment is to have the court inform the accused person of his or her charges and require the person to enter a plea of guilty, no contest, or not guilty. In most instances, an attorney will enter a plea of not guilty on the accused person’s behalf which will result in the case being continued for what is called a pre-trial conference (in Pinellas County) or a disposition hearing (in Hillsborough County). Of course, if the person pleads guilty or no contest at the arraignment, he or she will be sentenced at that time. The case is, however usually continued for three or so pre-trial or disposition hearings so that the person's attorney can obtain and review discovery, provide reciprocal discovery to the state, file any applicable defensive motions, and evaluate whether the case should be tried. If there is to be no trial, these continuances will give the accused person time to complete all of the required DUI conditions prior to resolving the case. This is important for a couple of reasons. First, if your case is pending in St. Petersburg or Clearwater traffic court, it will allow you to significantly shorten the time you are on probation in most instances. Also, it will facilitate obtaining a hardship license once the criminal license suspension goes into effect (more on that below).
The penalties for a DUI are going to depend on your number of priors, and the results of your breath test (if any). In most cases, a breath test reading of .15 BRAC or higher will trigger an enhanced penalty (in the form of a higher fine amount, the potential for a longer period of incarceration, and a longer period with an ignition interlock device in your vehicle). In Florida, first and second time DUIs constitute misdemeanor offenses. A third DUI, where your most recent prior conviction was more than ten years before your current arrest, is also a misdemeanor. If this is your third DUI, and your most recent conviction was within ten years of your current date of offense, the charge may be prosecuted as a felony. A fourth time DUI in Florida constitutes a felony offense, regardless of your dates of prior conviction.
The potential penalties associated with a DUI offense, depending on blood alcohol content and priors, are too varied to detail in this article. An experienced St. Petersburg, Clearwater, or Tampa DUI attorney can provide you with what you need to know, depending on your particular circumstances.
Every DUI case will, however, involve the imposition of a fine which can range from $1,000.00 to over $3,000.00. In most instances, there will be a period of probation and a number of conditions that are required, by law, to be imposed as conditions thereof. These conditions include enrollment in DUI School, undergoing an alcohol evaluation, completing any recommended treatment, a vehicle impoundment, attending one or more victim impact panels, and the installation of an ignition interlock device (the court may not require this if it is your first DUI and there is no breath or blood test result at a 0.15 or higher). A first time DUI sentence will also involve the completion of 50 hours of community service. Depending on your prior record, and the timing of your prior convictions relative to the date of your current offense, you may be required to serve a period of time in the county jail. If you are being prosecuted for a felony DUI, your period of incarceration (if any) will be determined by the sentencing guidelines and may result in a prison sentence, particularly where the case involves serious bodily injury or death.
The criminal proceeding will also involve the suspension of your driver’s license for a certain period of time. This suspension is separate and apart from the administrative proceeding, if any. Depending on the length of each suspension, and the time your criminal case is resolved, there may be an “overlap” in the two suspensions (i.e. where they run at the same time). If this is your first DUI, you will be eligible for a hardship license on the criminal suspension if you have completed DUI school, undergone and alcohol evaluation and enrolled in treatment, if it was required. There is no provision for a hardship license on a multiple time DUI conviction (i.e. where you have at least one prior). The length of the criminal suspension can range from six months to life.
3. Potential Defenses
In any DUI case, the state is required to prove (in part) that the accused person was driving or in actual physical control of the motor vehicle. This cannot always be accomplished. In cases involving a single vehicle crashes, for example, the accused person may be out of the vehicle at the time law enforcement arrives and, if there are no witnesses who actually observed the accused person behind the wheel, the state could have a problem meeting its burden of proof. This is especially so when the person elects not to make any statements once the criminal portion of the investigation commences.
The officer may have lacked reasonable suspicion to have stopped your vehicle in the first place. To stop to your vehicle, the officer must have observed some sort of traffic or other law violation, or must have a good faith basis to believe that the driver is sick, injured or otherwise in need of assistance. If there was no lawful basis to have stopped the vehicle, any ensuing inculpatory evidence is suppressible.
If the officer lacked probable cause to place you under arrest following a valid stop, then the results of any subsequent breath test or evidence of a refusal may be suppressed (and therefore inadmissible at trial). If the evidence of impairment, prior to arrest, was insufficient to establish probable cause, and all post-arrest evidence is suppressed, it is highly unlikely that the state will be in a position to go forward.
In other instances, if the person refused to submit to a breath test, and either refused to perform field sobriety exercises or performed them relatively well, the state may have issues proving impairment. This could result in a reduction in charge to reckless driving or perhaps, in more rare instances, to careless driving.
In a DUI investigation, the officer is required to read Miranda warnings once you are in custody. If the officer fails to read your Miranda Warnings, any statements you made are suppressible, which could result in a more favorable outcome. If you refuse to submit to a breath test, and your implied consent warnings were not read (i.e. that your license will be suspended for certain period of time if you fail to comply with the officer’s request), evidence of the refusal may be suppressed which can also result in a more favorable outcome.
In cases where an independent blood test is requested, and reasonable accommodations by law enforcement are not made, the results of the breath test are suppressible. If the case involves a blood draw, and there was no lawful basis to have drawn blood (in lieu of requesting breath samples) the results may be suppressed.
DUI law can be very complicated and for non-lawyers, navigating a DUI case can be downright overwhelming. If you have been arrested for a DUI in the Tampa Bay area, you should consult with a local attorney who regularly handles these types of cases, and has plenty of past experience doing so.
ABOUT THE AUTHOR: Donald J. Kilfin, The Kilfin Law Firm, P.C.
Donald J. Kilfin is a former Pinellas County State prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.