Driving Under the Influence

Defense of Driving Under the Influence

Tama Beth Kudman is an experienced, knowledgeable and aggressive criminal defense attorney with offices in West Palm Beach and Palm Beach Gardens Florida and New York City, NY. She has extensive experience defending individuals in DUI offenses such as DUI Manslaughter.

Driving Under the Influence- An Overview

In Florida, Driving Under the Influence (DUI) (drunk driving) is defined as impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. Impairment can also result from the use of drugs, such as marijuana. Typically, a law enforcement officer attempts to determine if someone is under the influence of alcohol by administering a roadside sobriety test, followed by a blood alcohol (breathalyzer) test. DUI Offenses include:

  • DUI with Property Damage: Any person who causes property damage or personal injury to another while driving under the influence is guilty of a First Degree Misdemeanor, with a penalty of not more than $1,000 fine or one year imprisonment.
  • Subsequent DUI: Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony with a penalty of not more than $5,000 fine and/or five years imprisonment.
  • DUI Manslaughter: The death of any human being or unborn child commits DUI manslaughter, which is a Second Degree Felony with a penalty of not more than a $10,000 fine and/or 15 years imprisonment.
  • DUI Manslaughter/Leaving the Scene: A driver convicted of DUI Manslaughter who knew or should have known an accident occurred, and failed to give information or render aid, is guilty of a First Degree Felony, with a penalty of not more than $10,000 fine and/or 30 years imprisonment.

Standard DUI Penalties –

Imprisonment

At the court’s discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward the term of imprisonment.

  • First Conviction: Not more than 6 months, unless the Defendant is found to have had a BAC of .15 or higher or had a minor in the vehicle, in which case the sentence of imprisonment may be up to 9 months.
  • Second Conviction: Not more than 9 months. unless the Defendant is found to have had a BAC of .15 or higher or had a minor in the vehicle, in which case the sentence of imprisonment may be up to 12 months. If the second conviction is within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive.
  • Third Conviction: If a third conviction is within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If the third conviction is more than 10 years, imprisonment for not more than 12 months.
  • Fourth or Subsequent Conviction: Not more than 5 years or as provided in Florida Statute 775.084, as a habitual/violent offender.

Vehicle Impoundment/Immobilization

Unless one can prove true hardship, in that the family of someone convicted of a DUI offense has no other means of transportation, state law provides for the impoundment or immobilization of all of the offender’s vehicles, as follows:

  • First DUI conviction – 10 days
  • Second DUI conviction within 5 years – 30 days
  • Third DUI conviction within 10 years – 90 days
  • Fourth DUI conviction – 90 days

The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the revocation of the offender’s driver’s license.

Ignition Interlock

Ignition interlock devices attach to a car to ensure that the driver is not drinking while driving. Before the vehicle’s motor can be started, the driver must first give a breath sample by breathing into the device. If the driver has alcohol on his/her breath, the vehicle’s engine cannot be started.

Except for a first offense conviction (unless the BAC is .15 or over) ignition interlock devices are mandatory for all DUI convictions. The period for an ignition interlock is between six months to two years, depending upon the number of DUI offenses.

DUI School

DUI School is mandatory for every DUI conviction. Each offender must attend classes and evaluation to determine if there is a need for drug or alcohol counseling. If an offender’s BAC is over .15, counseling will be ordered for a period of 16 weeks. If the BAC is less than .15, there may be fewer sessions ordered. An offender has 90 days from the completion of a class to enroll in treatment.

Failing to complete DUI School and/or any recommended follow-up treatment will result in a hold being placed on the offender’s driver’s license record. He or she will not be able to re-instate his or her license until all requirements are met and reported.

Driver License Suspension/Revocation

In addition to any fines and penalties invoked for a DUI conviction, an offender’s driver’s license will be suspended or revoked according to the schedule specified in Florida Statute 322:

  • First Conviction: Minimum 180 days revocation, maximum one year.
  • Second Conviction Within 5 Years: minimum five years suspension to revocation. (May be eligible for hardship reinstatement after one year.)
  • Third Conviction Within 10 Years of the second conviction: minimum 10 years suspension to revocation. (May be eligible for a hardship reinstatement after two years.)
  • Fourth Conviction, regardless of when prior convictions occurred; and murder with a motor vehicle: mandatory, permanent revocation. (No hardship reinstatement allowed.)
  • DUI with Serious Bodily Injury: minimum three years to revocation.
  • DUI Manslaughter: mandatory, permanent revocation. (If no prior DUI related convictions, may be eligible for hardship reinstatement after five years.)

Exemptions from License Suspension/Revocation

You may be eligible for a “hardship” or “business purpose only” (BPO) license. A BPO license allows a convicted driver to drive to work, school, or court while his or her license is suspended. Certain conditions must be met, and BPOs are not usually issued until DUI School has been completed.

Diversion Programs and DUI Courts

Some jurisdictions in Florida maintain Diversion Programs for first time offenders. As long the program’s rules and requirements are met, the State may either dismiss the DUI charge or amend it to reckless driving. A qualified defense attorney can advise you as to your qualification for such diversion.

Persons Under the Age of 21

Florida law authorizes a law enforcement officer having probable cause to believe that a motor vehicle is being driven by a person under the age of 21 while under the influence of alcohol, to detain this person and request that he or she submit to a test to determine his or her BAL. This violation is not considered a criminal offense and the driver will not be arrested. However, the Statute requires the following administrative license suspension:

  • First Suspension for Persons Under the Age of 21 With An Alcohol Level .02 or above – 6 months.
  • Second or Subsequent Suspensions – 1 year.
  • First Suspension for Refusal to Submit to Breath Test – 1 year.
  • Second or Subsequent Suspensions for Refusal – 18 months.

The suspension is effective immediately. If the breath or blood alcohol level is .05 or higher the suspension shall remain in effect until completion of a substance abuse evaluation and course.

The Importance of Experienced Legal Help

No matter what type of criminal allegation you are facing, it is essential to retain experienced and knowledgeable criminal defense counsel.  Tama Beth Kudman has been representing individuals accused of committing state and federal crimes, including DUI and DUI Manslaughter, for nearly 20 years. Ms. Kudman brings this experience and knowledge to every case that she defends.

Contact Tama Beth Kudman, an experienced, knowledgeable and aggressive criminal defense attorney today for help if you are charged with any crime or if you believe you are under investigation.