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Jan 9, 202312 min read

Impaired Driving (DUI)

Updated: May 7, 2023

According to the FBI uniform crime report there was a total of 29,073 DUI arrest in Florida in 2020. There is no denying that getting arrested for DUI can be life changing and stressful. Even if you avoid physical injury to your person or damage to property, DUI conviction can negatively impact your insurance, your driving license, your career, and not to mention the economic cost, etc. Here are a few things you need to know about DUI charge in Florida.



What You Should Know If You Are Charged With A First DUI Offense In Florida

Under Florida law (Florida statute 316.193(1) and (2)(a), to prove the crime of driving under the influence of alcoholic or controlled substance (DUI), the State/Prosecutor must prove the following two elements beyond a reasonable doubt:

1) Drives a vehicle or is found to be in actual physical control of a vehicle, within the state of Florida.

2)And the person is either:

A) Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

B) Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.


Actual physical control means a person must be physically in or in the case of a motorcycle, on the vehicle and have the capability to operate the vehicle, regardless of whether the person is operating the vehicle at the time.


Penalty/Punishment For First DUI Conviction

The first DUI offense is a second-degree misdemeanor in Florida but carries standardized DUI penalties that are more severe than a traditional second-degree misdemeanor, here are the standard DUI Penalties are:


1) Up to 6 months in jail or

2) Up to 12 months of reporting probation.

3) Minimum of 6 months driver license revocation, but up to twelve (12) months.

4) Minimum fine of $500, but no more than $1,000.

5) 10 days impoundment or immobilization of the vehicle used in the DUI.

6) 50 hours of community service.

7) Completion of a 12-hour DUI substance abuse course.


Enhanced DUI Offense

Under Florida law (Florida statutes316.193(4),to prove the crime of enhanced driving under the influence of alcoholic or controlled substance, the State/Prosecutor must prove the following three elements beyond a reasonable doubt:


1) Defendant drove or was in actual physical control of a vehicle.

2) While driving or in actual physical control of the vehicle,

3) Defendant was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired or

1) Defendant Had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath] or

2) Defendant Had a breath or blood alcohol level of .15 or higher; or

3) Defendant was accompanied in the vehicle by a person under the age of 18.



Penalty/Punishment for First Enhanced DUI Offense

1) Up to 12 months of probation.

2) Minimum 6-month driver license revocation, but up to 12 months.

3) Minimum fine of $1,000, but no more than $2,000.

4) 10-day impoundment or immobilization of the vehicle used in the DUI.

5) 50 hours of community service.

6) Complete 12-hour DUI Substance Abuse Course.

7) Mandatory placement of an ignition interlock device upon all vehicles used, owned, or routinely operated by the convicted person for not less than 6 continuous months, but up to 1 year.


Second DUI Offense in Florida

Under Florida law (Florida statute 316.193(1) and (2)(a), to prove the crime of 2nd DUI offense the State/Prosecutor must prove the following three elements beyond a reasonable doubt:


1) Drives a vehicle or is found to be in actual physical control of a vehicle, within the state of Florida.

2) And the person is either:


1) Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

2) Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

3) And has been convicted of a prior DUI or comparable out-of-state offense.


Penalty/Punishment for Second DUI Offense

The crime of second DUI offense is a second-degree misdemeanor in Florida but carries standardized DUI penalties that are more severe than a traditional second-degree misdemeanor. Additionally, enhanced penalties apply if the person had a breath or blood alcohol level of .15 or higher or was accompanied by a minor at the time of the offense. If convicted of a second DUI offense in Florida, there are the standard Penalties

  1. Up to 9 months in jail.

  2. Up to 12 months of probation.

  3. Minimum 6-month driver license revocation, but up to 12 months.

  4. Minimum fine of $1,000, but no more than $2,000.

  5. 10-day impoundment or immobilization of the vehicle used in the DUI.

  6. Mandatory placement of an ignition interlock device upon all vehicles owned, used, or routinely operated by the convicted driver for not less than one year.

  7. 50 hours of community service.

  8. Complete 21-hour DUI substance abuse course.

  9. Complete psychosocial evaluation to determine if Substance Abuse Treatment is required.

  10. Complete any recommended substance abuse treatment.


Penalties/ Punishment for Second Enhanced DUI Offense

A person convicted of a second DUI offense is subject to enhanced penalties if the person either:

Had a breath or blood alcohol level of .15 or higher; or

Was accompanied in the vehicle by a minor at the time of arrest.

In addition to the standard penalties, a judge must impose the following enhanced penalties if a person is convicted of a second DUI offense with a breath or blood alcohol level of .15 or higher:

  1. Up to 12 months in jail.

  2. Minimum fine of $2,000, but no more than $4,000.

  3. Mandatory placement of an ignition interlock device upon all vehicles used, owned, or routinely operated by the convicted person for not less than two years.


Second DUI Offense Within Five Years of Prior Conviction


Under Florida law (Florida statute 316.193(1), (2)(a), and (6)(b), to prove the crime of second DUI within five years of a Prior Conviction, the State must prove the following three elements beyond a reasonable doubt:


  1. Drives a vehicle or is found to be in actual physical control of a vehicle, within the state of Florida.

  2. Is either:

    1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

    2. Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

  3. And has been convicted of DUI within five years of the current DUI.


Penalty/Punishment for Second DUI within Five Years of Prior Conviction

The crime of second DUI within five (5) years of a Prior Conviction is a second-degree misdemeanor and carries standardized DUI penalties that are more severe than a traditional second-degree misdemeanor. Additionally, if the person had a breath or blood alcohol level of .15 or higher or was accompanied by a minor at the time of the offense, the enhanced penalties apply.

If convicted of second DUI within five years of prior conviction in Florida, a judge is required to impose the following penalties:

  1. Minimum 10 days in jail, but up to nine months in jail.

  2. Up to 12 months of reporting probation.

  3. Minimum 5-year driver license revocation.

  4. Minimum fine of $1,000, but no more than $2,000.

  5. 30 days impoundment or immobilization of all vehicles owned by the driver.

  6. Mandatory placement of an ignition interlock device upon all vehicles owned, used, or routinely operated by the convicted driver for not less than one (1) year.

  7. 50 hours of community service.

  8. Complete 21-hour DUI Substance Abuse Course.

  9. Complete any recommended substance abuse treatment.


Third DUI Offense In Florida

Under Florida law (Florida statute 316.193(1) and (2)(b)(2), to prove the crime of 3rd DUI, the State/Prosecutor must prove the following three elements:

  1. Drives a vehicle or is found to be in actual physical control of a vehicle, within the state of Florida.

  2. And the person is either:

    1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

    2. Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

  3. And has been convicted of two prior DUIs or comparable out-of-state offenses.


Penalty/Punishment for Third DUI Offense

The crime of third DUI offense is a second-degree Misdemeanor in Florida but carries standardized DUI penalties that are more severe than a traditional Second-Degree Misdemeanor.

Additionally, enhanced penalties apply if the person had a breath or blood alcohol level of .15 or higher or was accompanied by a minor at the time of the offense.

If convicted of a third DUI offense in Florida, a judge is required to impose the following penalties:

  1. Up to 12 months in jail.

  2. Up to 12 months of reporting probation.

  3. Minimum 6-month driver license revocation, but up to 12 months.

  4. Minimum fine of $2,000, but no more than $5,000.

  5. 10-day impoundment or immobilization of the vehicle used in the DUI.

  6. Mandatory placement of an ignition interlock device upon all vehicles owned, used, or routinely operated by the convicted driver for not less than two years

  7. 50 hours of community service.

  8. Complete of a 21-hour DUI Substance Abuse Course.

  9. Complete of any recommended substance abuse treatment.


Third DUI Offense Within Ten Years of Prior Conviction

Under Florida law (Florida statute 316.193(1), (2)(a) -(b), and (6)(c), to prove the crime of 3rd DUI within 10 years, the State/ Prosecutor must prove the following four elements beyond a reasonable doubt:

  1. Drives a vehicle, or is found to be in actual physical control of a vehicle, within the state of Florida; and

  2. Defendant Is either:

    1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

    2. Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

  3. And has been convicted of at least two prior DUIs.

  4. And at least one of the DUI convictions dates is within ten years of the current DUI arrest date.


Penalty/Punishment For Third DUI Within Ten Years of Prior Conviction

The crime of third DUI within ten years of a prior conviction is a third-degree felony and

If convicted a judge is required to impose the following penalties:

  1. Minimum 30 days in jail, but up to 5 years in prison.

  2. Up to 5 years of reporting probation.

  3. Minimum 10-year driver license revocation.

  4. Up to $5,000 in fines.

  5. 90-day impoundment or immobilization of all vehicles owned by the driver.

  6. Mandatory placement of an ignition interlock device upon all vehicles owned, used, or routinely operated by the convicted driver for not less than two years.

  7. 50 hours of community service.

  8. Complete 21-hour DUI substance abuse course.

  9. Complete any recommended substance abuse treatment.


Fourth DUI Offense in Florida

Under Florida law (Florida Statute 316.193(1)(2)(b)(3), to prove the crime of 4th DUI, the State/ Prosecutor must prove the following three elements beyond a reasonable doubt:

  1. Drives a vehicle, or is found to be in actual physical control of a vehicle, within the state of Florida; and

  2. Defendant either:

    1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

    2. Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

  3. And has been convicted of at least three prior DUIs.


Penalty/Punishment for Fourth DUI Offense

Any person who is convicted of a fourth or subsequent DUI, regardless of when any prior conviction for the DUI occurred commits a felony of the third degree, punishable by:

1, Up to 5 years in prison.

2, Up to 5 years of probation.

3, Permanent driver’s license revocation.

4, Minimum fine of $2,000, but no more than $5,000.

5, Impoundment or immobilization of all vehicles owned by the driver.

6, Mandatory placement of an ignition interlock device upon all vehicles owned, used, or routinely operated by the convicted driver for at least two years.

7, Community service

8, Completion of a 21-hour DUI Substance Abuse Course.

9, Completion of a psychosocial evaluation and substance abuse treatment.


DUI With Property Damage

Under Florida law (Florida statute 316.193(1) and (3)(c)(1), to prove the crime of DUI with property damage, the State/Prosecutor must prove the following three elements beyond reasonable doubt:

  1. Drives a vehicle or is found to be in actual physical control of a vehicle, within the State of Florida.

  2. And the person is either:

    1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

    2. Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

  3. And causes damage, directly or indirectly, to the property of another person.


Penalties/Punishment for DUI With Property Damage

The crime of DUI with property damage is a first-degree misdemeanor in Florida, and if convicted of DUI with property damage in Florida, a judge is required to impose the following penalties:

  1. Up to 12 months in jail or

  2. Up to 12 months of probation.

  3. Minimum 6-month driver license revocation, but up to twelve months.

  4. Minimum fine of $500, but no more than $1,000.

  5. 10-day impoundment or immobilization of the vehicle used in the DUI.

  6. 50 hours of community service.

  7. Complete 12-hour DUI Substance Abuse Course.

  8. Completion of a psychosocial evaluation to determine if Substance Abuse Treatment is required.

  9. Complete of any recommended substance abuse treatment.

DUI With Serious Bodily Injury

Under Florida law (Florida statute 316.193(1) and (3)(C)(2), to prove the crime of DUI with serious bodily injury the State/Prosecutor must prove the following three elements beyond a reasonable doubt:

  1. Drives a vehicle or is found to be in actual physical control of a vehicle, within the state of Florida.

  2. And the person is either

    1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

    2. Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

  3. And causes serious bodily injury, directly or indirectly to another person.


Serious bodily injury is defined as an injury to any person, except the driver which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.



Penalty/Punishments for DUI with Serious Bodily Injury

The crime of DUI with serious bodily injury is a third-degree felony and if convicted carries a minimum sentence of 51 months in prison in addition to the following penalties:

1, Up to 5 years in prison.

2, Up to 5 years of probation.

3, Up to $5,000 in fines.

4, 50 hours of community service.

5, Impoundment of the driver’s vehicle.

6, Complete DUI substance abuse course.

7, Complete psychosocial evaluation and substance abuse treatment.


DUI Manslaughter

DUI manslaughter means DUI that result in the death of any human being or unborn child.

Under Florida law (Florida statute 316.193(1) and (3)(c)(3), to prove the crime of DUI Manslaughter, the State/Prosecutor must prove the following three elements beyond a reasonable doubt:

  1. Drives a vehicle or is found to be in actual physical control of a vehicle, within the state of Florida.

  2. And the person is either:

    1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or

    2. Has a breath-alcohol level of 0.08 or higher; or has a blood-alcohol level of 0.08 or higher.

  3. And causes the death of another person, either directly or indirectly.


Penalty/Punishment for DUI Manslaughter

The crime of DUI Manslaughter is a second-degree felony and carries a mandatory-minimum sentence of 4 years in prison in addition to the following penalties:

  1. Up to 15 years in prison.

  2. Up to 15 years of probation.

  3. Up to $10,000 in fines.

  4. Permanent driver’s license revocation.

  5. Community service.

  6. Impoundment of the driver’s vehicle.

  7. Completion of a DUI Substance Abuse Course.

  8. Completion of a psychosocial evaluation and substance abuse treatment.


Common Defenses for DUI Cases

Illegal traffic stop: Police officers may only stop a vehicle for one of two reasons: If the officer has a reasonable suspicion that the driver is committing a traffic infraction or if the officer has probable cause that the driver committed a crime. If the stop is illegal, then evidence collected in the arrest can be suppressed.

Improper field sobriety exercise: In most DUI cases, police officer will administer field sobriety exercises before arresting the driver. The purpose of these exercises is to assist the police in determining whether a person is impaired. There are several avenues to challenging the officer's testimony about this exercise such as: (1) Is the officer familiar with the driver's true balance and coordination; (2) does the driver have any physical disabilities or injuries, such as a bad back or bad knees, which affect the driver's ability to perform the exercise thereby making them unreliable and inadmissible; (3) Is the officer qualified to perform the specific field sobriety exercises such as the HGN ( pen test).


Insufficient probable cause: In order to arrest a driver for DUI, an officer must have probable cause to believe that a driver was under the influence of alcoholic beverages or controlled substances to the extent that the driver's normal faculties were impaired. Suppose it can be shown that the officer's probable cause conclusion was based on insufficient evidence or an unreasonable conclusion. In that case, the driver's arrest can be deemed illegal, and any subsequent evidence can be suppressed, resulting in the prosecutor dismissing the DUI.


Inadmissible breath results: The Breathalyzer machines used by police officers are strictly regulated and subject to strict maintenance requirements to be deemed admissible. Additionally, the testing must be done in a very specific, standardized manner. The failure to either properly maintain the machines or to conduct the tests in accordance with required procedures can result in the breath alcohol results being ruled inadmissible, no matter how high the breath alcohol results were. Some common errors that can make the result inadmissible are; (1) did the officer conduct a 20-minute straight observation before administering the breath alcohol test; (2) did the officer instruct the driver to "keep blowing" during the breath test; (3)did the officer calibrate the machine properly before conducting the breath alcohol test.


Necessity: this defense is applicable in an emergency where the defendant has no other option but to drive e.g., taking someone to the hospital or trying to get police attention.


Duress: this applies in situation where you were forced to get behind the wheel.


Lack of wheel witness: this is applicable when the State/Prosecutor cannot show or prove that you were behind the wheel of the vehicle or where they have no testimony that you were the driver.


Inoperable vehicle: this applies when the vehicle is inoperable due to mechanical issues or where you do not possess the vehicle's keys.


Mistaken facts: this is where there is conflict as to the facts of the case.


Involuntary intoxication: this applies in situation where you did not ingest alcohol or drugs of your own free will.


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