Driving Under the Influence

Under Florida law, a DUI charge can be proven in one of two alternative ways:

1. The State can prove that one’s normal faculties were impaired, or

2. The State can prove that you drove with an unlawful blood alcohol or breath alcohol level of .08 or above such that one’s normal faculties were impaired.

DUI is typically a misdemeanor but aggravating factors and repeat offenses may result in a felony charge. Furthermore, a conviction for DUI carries social stigma, difficulty in obtaining certain types of employment and higher insurance rates. Therefore, it is extremely important that if faced with a DUI charge, whether a first or a subsequent charge, that every legal defense available be used by the defendant’s attorney.

After any DUI arrest in Florida, there is an administrative and a judicial process

1) In the judicial process, one has to answer to the criminal charge of DUI in the Florida State Court System. In most cases, the attorney will file motions to challenge the stop, breath test results and any additional evidence gathered by State. The goal of the defense attorney is to have the charges withdrawn by the state after a successful defense motion in which the State is barred from using evidence that was gathered in violation of the rights of the accused. If the State does not wish to withdraw the DUI charge, the defense counsel can also obtain a plea to a lesser offense to DUI. For instance, the State can offer a reckless driving plea to the accused in return for a plea of no contest.

However if the state refuses to withdraw the DUI charge or to reduce it to reckless driving, the case will then have to proceed to trial. At the Trial, the State will have to prove that the driver is guilty of DUI and provide testimony from the arresting officers, breath test technician and any other witnesses involved. The accused also can provide their own witnesses to argue that they were not driving in an impaired state.

2) The administrative process of DUI cases, occur after the arresting officer takes the defendant’s driver’s license and files paperwork with the Department of Highway Safety and Motor Vehicles to suspended their driving privileges because of a breath test of 0.08 or higher or any refusal to take a chemical test. It is important that an administrative review hearing is requested within 10 days of arrest to obtain a determination of the drivers license suspension. While the driver waits for their administrative review hearing, they can be issued a temporary driving permit so they may continue driving while the suspension is challenged. The review hearing typically occurs within 30-days after the hearing request.

The administrative review hearing is one of the most crucial court hearings in a DUI case. It allows the defendant’s lawyer to talk to the police officers about the issues surrounding the DUI arrest. It is very difficult for an attorney to overturn a driver’s license suspension but the information gathered can be very helpful in a subsequent DUI court case. Even if the driver’s license is suspended, the attorney can assist in obtaining a hardship license for their client so they can drive while the DUI court case proceeds.