Driving Under the Influence (DUI) in Florida
A comprehensive analysis of the DUI offense, from the initial stop and dual-track legal process to the full spectrum of penalties and defenses.
The DUI Offense in Florida
The cornerstone of Florida's DUI law is Florida Statute § 316.193. This statute establishes a single, unified offense of Driving Under the Influence but provides the prosecution with two distinct and independent methods to prove guilt. A person is guilty of DUI if they are driving or in "actual physical control" of a vehicle within the state and are either:
- Under the influence of alcoholic beverages, chemical substances, or controlled substances to the extent that their "normal faculties" are impaired; OR
- Have a blood-alcohol level (BAL) or breath-alcohol level (BrAC) of 0.08 or higher.
This dual-pronged structure gives prosecutors significant flexibility. If a driver refuses a chemical test, the state can proceed based on the officer's subjective observations of impairment. Conversely, if a driver has a high tolerance and does not appear impaired but their test result is at or above the legal limit, the state can secure a conviction under the objective "per se" prong.
Impairment of "Normal Faculties"
This path relies on demonstrating that the driver's ability to perform the many mental and physical acts of daily life—such as walking, talking, making judgments, and responding to emergencies—was impaired. Evidence typically includes the officer's testimony regarding the driving pattern (e.g., weaving, speeding, slow driving), physical appearance (e.g., bloodshot eyes, slurred speech, odor of alcohol), performance on Field Sobriety Tests, and any incriminating statements made by the driver.
Actual Physical Control (APC)
A person can be convicted of DUI even if the vehicle is not in motion. "Actual physical control" means the defendant was in or on the vehicle and had the capability to operate it. This prevents impaired individuals from sleeping in their cars to "sleep it off" and then driving later. Courts consider the totality of circumstances, including:
- The defendant's location in the vehicle (e.g., in the driver's seat).
- The location of the keys (e.g., in the ignition, on the seat, in a pocket).
- Whether the engine was running or the vehicle was operable.
The DUI Investigation: From Stop to Arrest
A DUI case begins long before an arrest is made. Every step of the investigation is governed by constitutional principles and procedural rules that can be challenged by the defense.
The Traffic Stop: Reasonable Suspicion
A law enforcement officer cannot stop a vehicle on a mere hunch. The Fourth Amendment requires the officer to have "reasonable suspicion" that the driver has committed, is committing, or is about to commit a crime or traffic infraction. This can be based on observed driving patterns (e.g., weaving, failing to maintain a single lane) or a non-moving violation (e.g., a broken taillight).
Field Sobriety Tests (FSTs)
If an officer suspects impairment after the initial stop, they will ask the driver to perform FSTs. In Florida, these tests are voluntary. A driver has the right to refuse without direct penalty, though the refusal can be used as evidence of consciousness of guilt at trial. The standardized tests validated by NHTSA and used in Florida are:
- Horizontal Gaze Nystagmus (HGN): An eye test where the officer looks for involuntary jerking of the eyes as they follow a stimulus.
- Walk-and-Turn: A divided-attention test requiring the subject to take nine heel-to-toe steps along a line, turn in a prescribed manner, and walk back.
- One-Leg Stand: A divided-attention test requiring the subject to stand on one leg, with the other foot raised six inches, and count aloud for 30 seconds.
The Arrest: Probable Cause
Based on the totality of the circumstances—including the initial reason for the stop, the driver's physical appearance and statements, and their performance on the FSTs—the officer must develop "probable cause" to believe the person is under the influence to make a lawful arrest.
Chemical Testing and Implied Consent
After a lawful arrest, the officer will request a chemical test to determine the driver's alcohol or drug concentration.
Florida's Implied Consent Law
Under Fla. Stat. § 316.1932, any person who accepts the privilege of driving in Florida is deemed to have consented to a chemical test of their breath, blood, or urine if lawfully arrested for DUI. Refusal to submit has serious consequences:
- First Refusal: A 1-year administrative license suspension (with a 90-day "hard" period with no driving).
- Second or Subsequent Refusal: An 18-month license suspension (with an 18-month "hard" period) and a separate first-degree misdemeanor criminal charge for the refusal itself.
Types of Chemical Tests
- Breath Test: The most common test, administered on an Intoxilyzer machine. The results are subject to challenge based on machine calibration, maintenance, and operator error.
- Urine Test: Typically requested if the officer suspects impairment by drugs. Urine tests are often challenged as unreliable for showing present impairment.
- Blood Test: A blood draw is mandatory in cases involving death or serious bodily injury. In other cases, an officer must obtain a warrant unless the driver gives free and voluntary consent.
The Dual-Track Legal Process
A DUI arrest in Florida triggers two separate and parallel legal proceedings: an administrative process with the Department of Highway Safety and Motor Vehicles (DHSMV) and a criminal court case. The outcome of one does not control the outcome of the other.
DHSMV Administrative Review: The 10-Day Rule
Upon arrest for a BAC of .08 or higher or for refusing a test, the officer seizes the driver's license and issues a citation that acts as a 10-day temporary permit. This triggers an immediate administrative license suspension. The driver has only 10 calendar days from the arrest to take action:
- Request a Formal Review Hearing: This is a mini-trial where the driver can challenge the suspension by subpoenaing the arresting officer and presenting evidence.
- Request an Informal Review: The hearing officer reviews only the documents submitted by law enforcement.
- Waive the Review Hearing: By waiving the right to a hearing, a first-time offender may be eligible for an immediate hardship license, but the suspension will be recorded on their driving record.
Failure to act within 10 days results in an automatic waiver of the right to a hearing and a "hard" suspension period during which no driving is permitted.
The Criminal Court Process
This is the longer process that determines guilt and imposes criminal penalties. It involves several stages:
- First Appearance: Within 24 hours, a judge determines if there was probable cause for the arrest and sets bond conditions.
- Arraignment: The defendant is formally charged and enters a plea of "guilty," "not guilty," or "no contest."
- Pretrial Phase: This is the longest phase, involving discovery (exchanging evidence), depositions, and the filing of pretrial motions, such as a Motion to Suppress evidence.
- Trial or Plea: The case is resolved either through a negotiated plea agreement or a jury trial.
- Sentencing: If found guilty, the judge imposes a sentence according to the mandatory minimums and maximums set by statute.
Criminal and Administrative Penalties
Penalties for a DUI conviction are severe and escalate dramatically based on prior offenses and aggravating factors.
Penalties for a First DUI Conviction
| Penalty | Standard First DUI | Enhanced First DUI (BAC ≥ .15 or Minor in Vehicle) |
|---|---|---|
| Fines | $500 - $1,000 | $1,000 - $2,000 |
| Imprisonment | Up to 6 months | Up to 9 months |
| Probation | Up to 1 year (total sanction of jail and probation cannot exceed 1 year) | Up to 1 year |
| License Revocation | 180 days to 1 year | 180 days to 1 year |
| Vehicle Impoundment | 10 days (mandatory) | 10 days (mandatory) |
| Ignition Interlock Device (IID) | Up to 6 months at court's discretion | Mandatory for at least 6 months |
| Community Service | Mandatory 50 hours | Mandatory 50 hours |
| DUI School | Level I (12 hours) | Level I (12 hours) |
Enhanced Penalties for Repeat Offenses
Florida uses "look-back" periods to determine mandatory minimum penalties for repeat offenders.
- Second Offense (within 5 years of a prior): Mandatory 10 days in jail, minimum 5-year license revocation, 30-day vehicle impoundment, and mandatory 1-year IID.
- Third Offense (within 10 years of a prior): This is a third-degree felony. Penalties include a mandatory 30 days in jail (up to 5 years prison), a minimum 10-year license revocation, 90-day vehicle impoundment, and mandatory 2-year IID.
- Fourth or Subsequent Offense: This is a third-degree felony regardless of when prior offenses occurred, with a mandatory permanent driver's license revocation.
DUI Causing Harm
- DUI with Property Damage: A first-degree misdemeanor, punishable by up to 1 year in jail.
- DUI with Serious Bodily Injury: A third-degree felony, punishable by up to 5 years in prison.
- DUI Manslaughter: A second-degree felony, with a 4-year mandatory minimum prison sentence. If the driver leaves the scene, it is elevated to a first-degree felony with a 4-year mandatory minimum.
Common DUI Defenses in Florida
A robust DUI defense involves a meticulous examination of the state's evidence and challenging any procedural errors or constitutional violations.
Pre-Trial Motions to Suppress Evidence
- Unlawful Stop: Arguing the officer lacked the required reasonable suspicion of a crime or traffic infraction to justify the initial traffic stop.
- Lack of Probable Cause for Arrest: Arguing the officer's observations, including FST performance, did not rise to the level of probable cause needed to make a lawful arrest.
- Involuntary Statements: Challenging the admissibility of any statements the defendant made in custody before being read their Miranda rights.
- Improper Administration of FSTs: Arguing the officer failed to conduct the Field Sobriety Tests in strict accordance with standardized procedures, rendering the results unreliable.
- Exclusion of Chemical Test Results: Challenging the admissibility of breath, blood, or urine tests based on non-compliance with FDLE regulations, machine malfunctions, improper collection or storage procedures, or an invalid warrant for a blood draw.
Trial Defenses
- Not in Actual Physical Control: Arguing the defendant was not in actual physical control of the vehicle (e.g., the vehicle was inoperable, the keys were not accessible).
- Involuntary Intoxication: A rare defense where the defendant can prove they unknowingly ingested an intoxicating substance.
- Necessity or Duress: Arguing the defendant had to drive to avoid a greater, imminent harm (e.g., fleeing a direct threat of violence).
- Challenging the "Impairment" evidence: Presenting alternative explanations for signs of impairment, such as fatigue, illness, physical disability, or nervousness.