South Florida DUI Defense Lawyer’s Reminders for a Happy New Year

December 31, 2008 by David S. Seltzer

It’s nearly New Year’s Eve, and for Florida drivers, that means an upswing in police DUI patrols and sobriety checkpoints. According to the South Florida Sun-Sentinel, Palm Beach County and Broward County are both increasing their patrols for the holiday, and other jurisdictions in Florida are likely to do the same. As an experienced criminal attorney in Miami, I know how tragic the consequences of drinking and driving can be. If you find yourself considering driving after a few drinks this year, consider calling a cab, getting a ride with a sober buddy or taking advantage of program’s like the AAA’s Tow to Go Program.

But as a South Florida DUI defense lawyer, I also see many clients whose misconceptions about drunk driving laws and penalties got them into trouble they could easily have avoided. So for this holiday, I’d like to take a moment to clear up some of those misconceptions and remind drivers about their rights, responsibilities and potential penalties under Florida DUI law.

The first thing to know is that technically, you can refuse DUI tests -- but it may not be a good idea. There are two types of tests used by law enforcement to spot a driver under the influence: field sobriety tests and chemical tests of your blood, breath or urine. In almost all cases, the officers will administer both tests.

Field sobriety tests are the physical tests officers give on the roadside: Walking a line, finger to nose, standing on one leg and horizontal gaze nystagmus (in which you follow an object with your eye and an officer checks the angle at which your eye starts to jerk). They are not considered very accurate, and in fact, a sober person might fail for any number of innocent reasons. You have the right to refuse a field sobriety test, but keep in mind that the officers will not like it very much. The officers can arrest you anyway if they feel there’s enough evidence to support a DUI charge.

Chemical tests are a different story. All drivers on Florida roads (including those with out-of-state licenses) have given “implied consent” to blood, breath or urine tests simply by using the roads. If you’re pulled over, you generally don’t get a choice of tests. In fact, officers may ask for more than one if the results aren’t clear, and they will insist on a blood or urine test if they think you’ve used drugs. If you refuse these tests, you will be penalized for it -- a first refusal doubles the time your license will be suspended (to a year) and can be used as evidence against you in a DUI court case. A second refusal is a criminal misdemeanor.

Another common misconception has to do with the automatic driver’s license suspension. Even a first DUI in Florida draws an automatic driver’s license suspension -- unless you fight it at an administrative hearing at the DMV. You don’t get this hearing automatically! You have to request it in writing, and you must make that request within ten days of your arrest, or your opportunity to protect your driving privilege is lost. You can, and should, have an attorney represent you at this hearing. Unfortunately, the administrative hearing is completely separate from your court case, which means winning one doesn’t help you win the other. As a Fort Lauderdale criminal lawyer, I handle both the hearing and the criminal case for DUI defendants, usually as part of the same defense strategy.

The penalties for driving under the influence of alcohol or drugs in Florida are harsh, even if it’s a first offense. First DUI offenders can expect:
• Up to eight hours in jail, until the police believe they’ve sobered up.
• Their vehicles to be impounded or immobilized for ten days, under most circumstances.
• Driver’s license suspension for at least six months -- a year if they refused to take a breath, blood or urine test.
• A fine of $500 to $1,000. The fine rises to $1,000 to $2,000 if there was a minor in the vehicle or the BAC measurement was 0.15 or higher.
• Fifty hours of mandatory community service.
• Twelve hours of mandatory DUI school.
• Possible court-ordered alcohol or drug addiction treatment.
• Up to a year of probation.
• At the judge’s discretion, six to nine months in jail.
• An immediate and sharp increase in their auto insurance rates.

As you can see in the Florida statutes, these penalties increase sharply for a second or third DUI conviction, and the defendant is no longer eligible for community service or probation. In addition, a subsequent conviction requires you to have an ignition interlock device (breathalyzer) installed in your vehicle. A third conviction within 10 years, or any fourth or subsequent conviction, will be charged as a third-degree felony.