It is not illegal to drink and drive in Florida. It only becomes illegal to drive when your normal faculties are impaired. Your normal faculties include the ability to see, hear, walk talk, drive a car, judge distances and make decisions in emergency situations. Not everyone’s normal faculties are impaired when their body’s blood alcohol content (BAC) is above a .08, however, that is the standard legal limit in the State of Florida. Most people think that the legal limit in Florida is .08 or higher – but that’s not necessarily true. Someone could have a BAC of .09 and be perfectly fine. The flip side is that someone with a very low BAC, say .04, could be guilty of DUI. The key question is whether the person’s normal faculties were impaired.
Drunk driving is wrong. No question about it. However, it is also wrong to convict a person of a DUI unless there is proof beyond all reasonable doubt that they are, in fact, guilty. The punishments for DUI in Florida are severe and a DUI conviction will follow you for a long, long time in part because it can never be expunged from your record. In addition to the criminal record it creates, the Department of Highway Safety and Motor Vehicles will initiate action against you, which is an entirely separate proceeding that can result in your license being suspended and/or requiring you to attend treatment and/or require you to install an ignition interlock device in your car. Finally, you should be aware that a DUI can never be sealed or expunged from your record. Judges are prohibited by statute from sealing or expunging your DUI.
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Crime Level: 1st degree misdemeanor
Most likely outcome*: Higher fine and court costs, perhaps a DWLS class on how to take alternative transportation if you cannot get a license.
Maximum Penalties: 1 year in jail or probation; $1,000 fine.
Collateral Consequences: Enhanceable to a felony if committed again.
Possible Diversion: No.
Defenses: No knowledge of license suspension, unlawful stop, no prior conviction.
Related Offenses: DUI, no valid driver’s license, DWLS HTO
* For Orange County, Florida, assuming no priors or aggravators. Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.
One way to “beat” a DUI charge is by getting the prosecutor to reduce the DUI to a reckless driving or reckless driving alcohol related. Reckless driving is still a criminal traffic offense, however, it will not require all the penalties that a DUI does. Furthermore, a reckless driving on your record should not affect your auto insurance nearly as much as a DUI conviction. Car insurance companies usually require special SR22 insurance, which can be very expensive. If you are able to beat the DUI by getting a reckless driving charge, many times that may be in a person’s best interest – however consult a lawyer first. Reckless driving is still a crime, which can have side effects or consequences you may not expect.
Getting a reduction from a DUI to a reckless driving may also not be in your best interests if you are offered DUI pretrial diversion. While it is true that a reckless driving plea may not require you to do the DUI counterattack school or community service, it is still a crime that may always be on your record. If you complete the DUI PTD program, the DUI is dismissed and there is no need to plead to anything. Employment applications frequently ask if you have ever been convicted of a crime or pleaded guilty or no contest to any crime. If you get a reckless driving, you may always have to answer yes to that question! Employers have options these days and there is no shortage of people looking for good jobs. One of the first things an employer may do to filter through applications for employment is throw out the applications with criminal records.
DUI is also an enhanceable offense – meaning the more times you are charged with DUI, the more severe the punishment becomes. A 2nd DUI will almost always cause a prosecutor or judge to include jail in any plea deal. In fact, a second DUI within 5 years of the first requires 10 days in jail (which can be substituted for 10 days of inpatient treatment at a facility). 3 DUIs within 10 years (which only requires that the third DUI occurs within 10 years of the second DUI) is a felony. A 4th DUI is usually charged as a felony. If any of your prior arrests were reduced to a reckless driving, that reduced charge cannot be used against you as a prior DUI for enhancement purposes.
If the State of Florida wishes to charge you with a second or greater DUI charge, the burden is on them to prove to the court that the priors are in fact yours. You, as a criminal defendant, will not be asked or required to answer whether you have priors. You have the right to remain silent.
Here are overviews of what DUIs convictions require. Please note that the below are the minimum required sentences – depending on the circumstances you can receive a harsher sentence, but never a lighter one. A terrific resource for looking up penalties is directly on the website of the Florida Department of Highway Safety and Motor Vehicles at http://www.flhsmv.gov/ddl/duilaws.html
Florida criminalizes a second DUI differently depending on when the second occurred in relation to the first. If the second DUI occurs within five years of the conviction of the first, it is treated more severely than if the second occurred more than five years after the first. So the key question to ask is whether the second DUI arrest occurred inside or outside of 5 years of the first DUI conviction. Contact us for a free consultation to learn more.
I have had clients seeking to seal or expunge a petit theft charge, where they pleaded no contest for whatever reason. Now they can’t get a job because employers see the criminal history on their record. They qualify for a seal or expunction but for a DUI they have. If they didn’t have the DUI conviction, they could have had the petit theft wiped off their record. So beware that if you plead to a DUI, that will prevent you from being able to ever seal or expunge anything else from your record.
If you have a DUI conviction, it will be reflected on your Florida Driving Record, which may in turn result in your insurance company dropping you or requiring you to obtain SR-22 insurance.
Employers do not like applicants with criminal history records. DUI is a crime and having a conviction for it will likely hurt your chances of obtaining employment.
Any criminal conviction precludes you from ever being allowed to seal or expunge anything on your records. The only way you might be able to get it off your record is to appeal to the Officer of the Governor for a pardon. Under the current law, no DUI can ever have the adjudication withheld. In other words, if you plead guilty or no contest to a DUI, you must be formally convicted of it and the judge must adjudicate you guilty.
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