If you found this page, chances are you or a loved one has been charged with a DUI in Florida. While a DUI is one of the most common criminal charges in Tampa, a conviction can carry serious consequences, even for first-time offenders.
Fortunately, there are often strong defenses in DUI cases, and these cases are much more complicated than they might seem at first glance. As you begin your search for a DUI defense attorney please consider contacting Jonathan Drake. I’m a Tampa DUI defense lawyer with nearly a decade of experience defending clients against serious criminal charges.
First, let’s take a look at the relevant Florida’s DUI laws and how Drake Law has successfully defended clients in countless DUI cases over the years.
Florida DUI Laws
In Florida, a driver can get a DUI for driving a vehicle while “under the influence,” or with a blood alcohol concentration (BAC) of .08% or higher. A driver who was pulled over for a moving violation and is clearly impaired is considered to be “under the influence”. However, any driver with a BAC of .08% of greater could be found guilty of a “per se” DUI, even if that driver isn’t obviously under the influence.
“Per se” DUI charges are based on chemical test results rather than proof of impairment. Implied consent laws require all drivers lawfully arrested for a DUI to take a BAC test if asked to do so by law enforcement. Sometimes BAC test results make it easy for the prosecution to prove a DUI charge. But in other cases, an experienced defense attorney will find flaws in the prosecution’s evidence. Often we find problems with the testing equipment or procedures.
Reasons to Fight the DUI Charges
Hiring an experienced lawyer to fight your case may help you avoid a conviction which may save you thousands of dollars in fines, court costs, expenses for DUI school, vehicle impound, time and energy to complete 50 hours of community service, and drastically increased insurance premiums.
The penalties for a DUI in Florida largely depend on the circumstances and whether or not the defendant has prior DUI convictions. Even for a first offense, a judge can assign fines, revoke your license, put you on probation and/or give you jail time.
First offense
The possible consequences of a first-offense DUI conviction in Florida could include fines, license suspension, vehicle impoundment, having to install an ignition interlock device (IID), and jail time. Enhanced penalties can apply where the driver’s BAC is over .15%, there was a minor in the car, or the accident resulted in injuries or property damage.
Generally, a driver with a BAC of .08% or higher will have their license suspended for six months. That time doubles if the driver refused to submit to chemical testing.
If your license is suspended for a DUI, you can usually get a hardship license, which allows you to drive to and from work, school, church, and medical appointments. You become more eligible for a hardship license after completing 30 days of the suspension.
Jail time – Florida does not impose mandatory minimum jail time for most first-offense DUIs. The sentence depends on the circumstances of the case. A driver with a BAC over .08% but under .15% could face up to six months. If the accident resulted in “serious bodily injury,” you could be looking at felony charges and up to five years in prison.
Fines – A standard first-offense DUI carries fines from $500 to $1000. As with criminal penalties, the amount of fines you could be facing increases along with the presence of minors, a BAC higher than .15%, or an accident resulting in serious injuries.
Probation and community service – Florida judges must place all DUI first-offenders on probation for a period of less than one year. As a condition of probation, DUI first-offenders are also required to complete 50 hours of community service.
License suspension – As we touched on above, first-offense DUI convictions result in a license suspension ranging for 6 months to a year.
Ignition interlock devices – Most first-time offenders aren’t required to have IIDs. An IID becomes mandatory with a BAC of .15% or higher or if a minor was in the car.
Vehicle impoundment – Most DUI first-offenders have their vehicles impounded for ten days.
Second offense
If a driver is convicted of a second DUI within five years of the first conviction, the judge will order a minimum 10 days in jail, a 5-year license revocation, and 30-day vehicle impoundment. If the second offense involves a minor passenger or a BAC of .15% or higher, the judge can order up to 12 months jail and a fine of $2,000 to $4,000.
Third offense
A third DUI conviction within 10 years of the two priors can be charged as a felony. A felony will require 30 days to five years in jail, a 90-day vehicle impoundment, and a 10-year driver’s license revocation. As mentioned above, DUIs that result in serious bodily injury or the death of another person are considered felony offenses.
Pre-Trial Motions in DUI Cases
Many DUI cases are won through the use of pre-trial motions. Evidence can be “suppressed” when the police have failed to follow the rules and regulations surrounding DUI law. When the results of a breath or blood test was not obtained legally, it cannot be used against you.
First, the police must have probable cause of a moving violation or reasonable suspicion of criminal activity when they pull you over. This is not always the case. An experienced DUI lawyer can get the results of a blood or breath test and even an officer’s observations excluded if he can show that the police did not have a legitimate basis for the stop.
Your attorney also challenge the placement of checkpoints. The police often fail to follow the laws stipulating where checkpoints can be placed.
Another pretrial motion involves the way the police conduct BAC tests. The police must administer the breath test within two hours of seeing you driving, and they must also observe you for 20 minutes before administering the test. That’s to ensure the defendant doesn’t consume any other type of alcohol (such as mouthwash), which could influence the test results.
The police department must also follow strict protocols regarding the calibration of the breath testing equipment. If they violate any of these rules, it could be possible to have the evidence excluded and the case dismissed. There are warning that the police must read to motorists before a blood draw. These warnings have changed recently, and could be helpful to your case.
Common Defenses in DUI Cases
The most common way to avoid a DUI conviction occurs when the prosecutor agrees to amend the charge to “reckless driving.”
If the officer’s decision to stop the vehicle was unreasonable under the Fourth Amendment, then the court will exclude evidence in the case. The suppression of that evidence might lead to the charges being dropped entirely.
Evidence obtained by chemical tests can be suppressed in the following scenarios:
Breathalzyer Tests
Breathalyzer testing can be performed immediately, at the point where the driver was stopped by the police. However, it only gives a BAC based on how much alcohol is in the breath, not how much alcohol is in the blood. Substances other than alcoholic beverages that contain alcohol, such as mouthwash or toothache medicine, can produce a false high reading. Even a burp just before or while blowing into the breathalyzer can cause a false spike. Breathalyzers have also been known to malfunction. These devices must be frequently calibrated, with police department records indicating how often the device has been calibrated, tested, and used. If they are not, the results may be considered invalid.
Blood Tests
Generally, having a high BAC is bad news for a person charged with a DUI. But when breath tests reveal a high BAC it doesn’t always mean the motorist was over the limit at the time they were driving. That’s because blood alcohol concentration is constantly changing. It could be rising or falling, depending on the circumstances. Hence, the rising-blood-alcohol defense.
DUI blood tests are the most accurate means of measuring the amount of alcohol or drugs in a person’s body. But a good defense lawyer can often find problems with blood test results. In some cases, blood samples can sit around for a long time before being analyzed, which can lead to a false high reading. The laboratories that analyze blood or urine samples can also make mistakes, especially if they are disorganized and don’t follow proper sample handling protocols.
The Rising-Blood-Alcohol Defense
Here’s how the rising-blood-alcohol defense typically goes: The driver’s BAC was below .08% when they began driving. By the time the person is pulled over, questioned, investigated, arrested, processed, and brought to a breath alcohol testing facility, the BAC at the time of the test may be higher than it was at the time of the stop. It takes some time for alcohol to reach a person’s bloodstream and increase the person’s BAC. With the rising-blood-alcohol defense, we convince the jury that you were driving before the BAC spike happened.
The results of breath tests themselves can also play into a DUI defendant’s favor. When a person gives a breath test, in order for it to be legally admissible in court, there must be two samples and two valid test results obtained from those samples. They’re usually administered 5 to 10 minutes apart. If those two numbers show a rising trend, the defendant can argue that the amount of alcohol was actually rising at the time rather than going down.
The rising-blood-alcohol defense benefits from expert testimony. A witness who’s an expert on how alcohol is metabolized can explain to the jury how the process works. This can sometimes be accomplished through cross-examination of a prosecution witness.
When Test Results Are Suppressed, Excluded or Limited
If a defendant is charged with a DUI based only on the observations of the officer and test results have been suppressed, the prosecution will have a difficult time proving beyond a reasonable doubt that the defendant was incapable of safe driving. If the officer did not observe significant moving violations or evidence of reckless driving, then the mere fact that the defendant smelled like alcohol will not be enough. The prosecution must prove that the defendant could not drive safely, which is a high burden to meet in the absence of evidence that the defendant caused or nearly caused an accident.
You attorney can also show, through cross examination, that the signs the prosecution suggests are evidence of intoxication are simply due to nervousness caused by a police encounter, or a medical condition. In other cases, we are able to use inconsistencies in the police paperwork to challenge the credibility of the police officer as to whether the defendant was really exhibiting any signs of impairment.
Should I Go to Trial or Seek a Plea Bargain in my DUI Case?
Florida is a state that allows you to enter into a plea agreement in some DUI cases. You can’t plea bargain for a lesser charge if your BAC was .15% or higher, or if the incident resulted in property damage, injuries, or the death of another person.
Assuming no one was injured, the answer to the question of whether it’s better to go to trial or seek a plea bargain depends on the strength of the evidence against you, whether you have prior convictions (especially DUI convictions), and your tolerance for risk.
A DUI plea bargain lets you avoid the risks of a trial. The advantage of pleading guilty to a DUI is knowing what the sentence will be in advance. Depending on the charge, a reduction could result in no suspension of your license, lower fines, and no jail time.
If the prosecution’s case is exceptionally weak, an experienced DUI defense lawyer may be able to negotiate a reduction to public drunkenness, drinking alcohol in a vehicle, or a moving violation.
Diversionary programs for first time offenders may be an option if the incident occured in Hillsborough County, through the Reducing Impaired Driving Recidivism (RIDR) program. RIDR became effective on March 1, 2018.
Talk to an Attorney
If you’ve been arrested for driving under the influence, talk to an experienced Tampa DUI attorney right away. Time is of the essence. We can help you protect your driving privileges by demanding a “Formal Review Hearing” at the DHSMV within 10 days after your arrest. If it has been over ten days since your arrest, do not hesitate to give us a call. There is still much work to do in protecting your driving privilege and securing your future.
At Drake Law, Jonathan Drake personally handles every case from start to finish. Give us a call today at 813-509-2426 to discuss the best strategies for fighting your charges.