Winston Law PA

Driving Under the Influence (DUI) and Traffic Crimes

If you have been arrested for DUI or other traffic crime, it is extremely important to hire a knowledgeable, skilled and compassionate attorney as soon as possible to help protect your rights.

Driving Under the Influence (DUI). To prove the crime of DUI, the State of Florida must prove, beyond a reasonable doubt that:

  • The defendant was in actual physical control of a vehicle; or
  • While driving or in actual physical control of a vehicle, the defendant was under the influence of alcohol, a controlled substance or a chemical substance to the extent that his normal faculties were impaired ; or
  • The defendant had a blood or breath alcohol level of .08 or higher.

If you are arrested for DUI you are facing several potential risks including possible jail time, criminal conviction on your record, loss of driving privileges, and fines.

There are many types of DUI offenses including the following:

  • Boating Under the Influence (BUI).  Operating a boat while under the influence carries the same penalties as driving a motor vehicle under the influence.
  • Driving Under the Influence Causing Property Damage or Injury.  If there is property damage or bodily injury as a result of a DUI the State may charge a defendant with this enhancement and increase the standard DUI penalties.
  • Felony DUI.  DUI can be charged as a felony if the defendant has three or more convictions for DUI within a 10 year period or four DUI’s in a lifetime.  Felony DUI is punishable by up to 5 years in prison.
  • DUI resulting in serious bodily injury.  Also a felony, if there is serious bodily injury as a result of a DUI the State can charge a defendant with a third-degree felony, punishable but up to 5 years in prison.
  • DUI Manslaughter.  If a DUI results in death the crime is charged as a second-degree felony punishable by up to 15 years in prison with a minimum sentence of 4 years.

In addition to there being several types of DUI crimes, the State of Florida enhances DUI penalties based on the blood or breath alcohol content of the defendant and the number of DUI’s a defendant has been convicted of within a certain amount of time.

DUI Investigation Process.

Before beginning a DUI investigation, law enforcement must have reasonable suspicion to stop a motor vehicle.  Reasonable suspicion can come from erratic driving, swerving or the commission of a traffic violation (i.e. speeding, running a stop sign, changing lanes without a signal).   Once a vehicle is stopped, police officers look for other signs of driver impairment including the odor of alcohol, red glassy eyes and erratic behavior.  If the officer believes a driver is intoxicated, the officer will ask the driver to perform field sobriety tests.  These include the walk and turn test, finger to nose test, the one legged stand test and the horizontal gaze nystagmus test.  The first three tests are divided attention tasks that require a person to balance while counting or doing other tasks.  The horizontal gaze nystagmus test looks for involuntary jerking in the eyes.  Often these tests are inaccurate and poor results can be the cause of something other than intoxication.  Depending on the results of the road side tests, the police officer will arrest the driver and transport him or her to the breath alcohol testing (BAT) center.

At the breath alcohol testing center, the driver will be observed for 20 minutes before breath testing.  The driver will then be asked to consent to the breath alcohol testing.  If the driver refuses, he or she will be read the “implied consent” law outlining that refusal to submit to breath alcohol testing results in a one year driver’s license suspension.

In Florida, breath testing is the most widely used form of alcohol testing.  Blood testing is permissible (but rarely used) if agreed to by the driver.  In situation where a DUI results in great bodily harm or death a blood alcohol test is mandatory.  A blood alcohol test directly measures the blood alcohol content (BAC) by taking a blood sample, mixing it with a preservative and sending the sample for analysis.  Blood alcohol tests can be administered incorrectly, and mishandled before and during testing.

An alternative to blood testing, a breathalyzer test measures the driver’s breath alcohol content (BAC) by taking a breath sample and measuring the breath alcohol content per liter of breath. The breathalyzer is a machine that is subject to malfunctions, improper calibrations and incorrect readings.  The legal blood or breath alcohol content for driving in Florida is below .08%.

Upon arrest for DUI, or refusal to submit to a breath test, your driver’s license will be suspended.  Your DUI citation will act as a temporary driver’s license for 10 days.  You will have 10 days to file the necessary paperwork with the DMV to challenge your suspension.  Failure to request a hearing within the 10 days results in an automatic driver’s license suspension.  If you schedule a DMV hearing, you will be eligible to drive on a temporary license up to 45 days or until the DMV hearing.  The DMV hearing is called an administrative review hearing.  It is conducted by a hearing officer that works for the department of highway and safety motor vehicles and its purpose is to determine whether your license will be suspended as a result of a DUI arrest.  At the administrative hearing, the arresting officer will testify and present evidence and your attorney will have an opportunity to cross examine him or her.  Your attorney will also have an opportunity to present evidence on your behalf.

Driving Under Suspended License (DUS).  In Florida, driving is considered a privilege.  It is required that a person have a valid driver’s license in order to operate a motor vehicle.  If you are found operating a motor vehicle without a valid driver’s license or using a suspended driver’s license you could be facing jail time, fines and further revocation of your license.  A driver’s license can be suspended for several reasons including too many points, failure to pay child support, failure to pay fines, and from a DUI suspension.  Driving under a suspended license is a first degree misdemeanor punishable by up to one year in the county jail.  If you have 3 or more driving under suspended license convictions, your next arrest can be enhanced and charged as a third degree felony punishable by up to 5 years in prison.

Reckless Driving.  To prove the crime of reckless driving, the State must prove, beyond a reasonable doubt that:

  • the defendant drove a motor vehicle and
  • did so with a willful disregard for the safety of persons or property.

Reckless driving is a first degree misdemeanor punishable by up to one year in the county jail.

Fleeing and Eluding a Law Enforcement Officer.  To prove the crime of fleeing and eluding the State must prove, beyond a reasonable doubt, that:

  • the defendant was operating a motor vehicle upon a street or highway,
  • a duly authorized law enforcement officer ordered the defendant to stop or remain stopped, and
  • the defendant knowingly had been directed to stop, willfully refused to comply, or made an attempt to elude the officer.

Fleeing and eluding a police officer is a third degree felony punishable by up to 5 years in prison.  If the fleeing occurs and results in a high speed chase, the crime is a second degree felony punishable by up to 15 years in prison.

Leaving the Scene of an Accident.  To prove the crime of leaving the scene of an accident the State must prove, beyond a reasonable doubt, that:

  • the defendant was the driver of a vehicle involved in a crash resulting in injury or death of any person,
  • the defendant knew or should have known the he or she was involved in a crash, and
  • the defendant willfully failed to stop at the scene of the crash or as close as possible and remain there to give identifying information or,
  • the defendant willfully failed to render reasonable assistance to the injured person.

If the accident caused injury to a person the crime is a third degree felony punishable by up to 5 years in prison.  If the caused the death of a person, the crime is a first degree felony punishable by up to 30 years in prison.

Winston Law, P.A. will fight to protect your rights by reviewing all aspects of your case including the arrest procedure, blood or breath alcohol testing procedure, and the testing device to find any errors made by law enforcement that can be used on your behalf.

If you or a loved one has been charged with Driving Under the Influence or other traffic crime, please contact Winston Law, P.A. at (561) 670-9375 or [email protected] for your initial consultation.


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