What is Driving Under the Influence?
People often associate DUI with drunk driving, but Florida statutes say that a driver can be prosecuted for DUI if they drive or “are in actual physical control” of a vehicle while under the influence of alcohol or any chemical substance. That can include illegal street drugs, legally prescribed medications, and, in some cases, over-the-counter medications or other substances (such as “huffing” canned air).
Most Florida residents are familiar with the legal limit for blood alcohol levels (BAL), which is .08. But you do not have to have a BAL of .08 to be prosecuted for DUI. In court, the state just needs to prove that you were too impaired to safely operate a vehicle regardless of what your BAL was.
So Will I Be Prosecuted for a Felony?
In most cases, if this is a first offense or second offense charge for the defendant and there are no “aggravating factors” (like causing an accident or hurting someone), DUI is charged as a misdemeanor. First misdemeanor DUI penalties may include probation, education (DUI school), a fine of up to $1,000, up to six months in jail, and a six-month driver’s license suspension.
There are also four common ways that you can be charged with a DUI Florida felony:
- Third DUI Within Ten Years
The State of Florida takes DUI charges seriously, but a judge may show some leniency toward a defendant who has made a mistake for the first time. But a prosecutor may charge a defendant with a third-degree felony for their third DUI charge in ten years. This may be punishable by up to five years in prison and a fine of up to $5,000. A judge could choose to give the defendant a lighter sentence, but judges often have less patience for repeat offenders.
- Fourth DUI Offense
A person convicted of a fourth DUI in any time frame, even if the last infraction was more than a decade ago, may be found guilty of a third-degree felony.
- DUI Involving Serious Bodily Injury
If an impaired driver causes an accident that leads to serious bodily injury, they can be charged with a third-degree felony. This includes situations where a passenger in the impaired driver’s car is injured. Depending on the situation, there may be additional charges. For example, if the impaired driver strikes a pedestrian or another vehicle and keeps going, they can be charged with leaving the scene of an accident as well. In addition to the usual penalties for third degree felonies, the defendant may also be ordered to pay for the victim’s medical expenses (keep in mind that even if the judge orders the defendant to pay for the victim’s medical bills, the victim may still sue the defendant in civil court for additional funds for pain and suffering).
- DUI Manslaughter
When an impaired driver causes the death of another person, this is a DUI manslaughter offense. DUI manslaughter is a second-degree felony, and is punishable by up to fifteen years in prison and a fine of up to $10,000. The defendant may also have to pay for the victim’s funeral expenses and any medical bills that occurred before they died of their injuries.
Defenses to DUI Florida Felony Charges
There is a wide variety of possible defenses if you are facing a DUI felony charge. Some people tell us they think their case is hopeless because of things like a BAL test over .08, or other potential evidence the State might have. This is not necessarily the case. In many situations, there are solid legal strategies for fighting a DUI charge.
Even if you receive a light sentence, a DUI felony conviction will stay on your criminal record forever, and could cause you problems with finding employment, housing, or educational opportunities. It could also interfere with your ability to access government benefits programs. If you’ve been charged with a DUI felony in Florida, contact a Florida criminal defense attorney immediately.
Fourth Amendment Defenses
The Fourth Amendment protects people from illegal search and seizure procedures by the government. As a result, this is sometimes used as a defense in criminal court if the defendant believes their rights were violated during the criminal investigation.
Fourth Amendment defenses are common in DUI felony cases. There are many ways a person’s rights may be violated during a traffic stop. It’s possible that your rights were violated and you didn’t even realize it at the time. In fact, this is very common. Sometimes we talk to people about the circumstances of their arrest and realize there may have been errors in procedure that made the search or arrest illegal, and therefore inadmissible in court. The average person who isn’t a legal expert may not realize these things happened, or their significance. But an experienced Florida criminal defense attorney may be able to tell if their client’s rights have been violated by asking questions and examining the evidence.
There are many ways in which traffic stops for DUI may not be legal. For example, an officer needs to have probable cause to pull someone over. If you were not driving erratically at the time you were stopped, the stop itself may not have been legal. Even if someone reported a car that looked like yours swerving all over the road, that doesn’t give the officer probable cause to pull you over, unless they personally observe you committing a traffic infraction. Simply swerving within a lane also isn’t usually probable cause.
Many officers have dashcams in their police vehicles. In some cases, your attorney may be able to get the footage before your arrest to see how your driving appeared to the officer. If you did not appear to be driving dangerously or breaking any traffic laws, your lawyer may be able to argue the police did not have probable cause for the stop.
There may also be issues with “random” stops or blockades. These are popular during holidays or on Saturday nights when many people are drinking. In order to conduct “random” stops, the police need to have a plan for how this is done to ensure all stops really are random. For example, they could plan to stop every sixth car that passes a certain point. If they don’t have such a plan, or don’t stick to it, that could allow for potential biases in choosing who to stop. If your attorney can find evidence that stops were not conducted randomly at the time you were arrested, they may be able to argue that your stop was not legal.
There also may be issues with the evidence the prosecution is offering against you. For example, many people are arrested because of the results of a breathalyzer test that indicate their BAL is .08 or higher. However, as with stops, the police have many procedures they have to follow when conducting such tests.
Your attorney will probably ask you questions to determine if any of your rights were violated when you were given a breathalyzer or other test for blood alcohol levels. Did you consent to the test? Did you refuse? Did the officer tell you to “keep blowing” after the initial test? Did they observe you for at least twenty minutes before performing the test, to ensure you didn’t eat or drink anything?
Your lawyer may also look into other procedures. Was the breath testing equipment maintained properly by the department? Was the officer who conducted the test trained and qualified to do so? If the officers took blood samples, were these taken by a qualified professional? Was chain of custody followed appropriately, and were samples stored in accordance with procedures?
If there were problems with any of these situations, your attorney may be able to argue the evidence against you should be inadmissible.
Addiction and DUI Charges
Sometimes clients tell us that their DUI arrest was a wakeup call, alerting them to the fact that they have a problem with alcohol or drugs, and that they want to get help. Acknowledging you have a problem and seeking help is always a good thing. However, going to jail can complicate a person’s recovery from addiction. Many prisons have group meetings for addicts, but you may need more intensive treatment when you first begin trying to get sober. Often, prisons are low on resources and you may not have access to all the care you need as you begin your recovery journey. Prisons may also rife with contraband like drugs and alcohol, and these can be tempting for someone trying to get clean. The stress of life in prison may also contribute to the urge to drink or use drugs.
If you have been arrested for a DUI and want to deal with a drug or alcohol problem, your attorney may be able to work out a deal with the judge or prosecutor. There are diversionary programs available where participants are given education, counseling, rehabilitation services, and other opportunities to address their problem. These may involve community service, work requirements, curfews, or other restrictions. If you are able to meet all requirements, you may be able to avoid a conviction and permanent mark on your criminal record.
If you need assistance with your DUI case, or have questions about any potential criminal or civil legal matter, please contact Apfelbaum Law for a consultation. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.
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