It is against the law to be driving while impaired by alcohol or an illegal substance such as marijuana or cocaine. A blood alcohol content of .08 or higher is unlawful. However, a driver is still permitted to argue that he or she was not impaired.

There are two sets of penalties for a DUI arrest. The State charges the driver with a first degree misdemeanor and the Department of Motor Vehicles revokes the driver’s license.

If you are a Florida resident, take a look at your driver’s license, you might be surprised to find that the "Operation of a motor vehicle constitutes implied consent to any sobriety test required by law." Refusing a Breathalyzer test results in a twelve month suspension of your driver’s license by the Department, on the other hand, if the test is taken, revealing an excessive alcohol content, a six month suspension is mandated.

In the case of a suspension the only recourse the driver has is to request a review hearing by the Department. This request must be made within ten days of the arrest. This hearing is conducted by an employee of the Department, not a judge or lawyer, who will decide whether the suspension was valid according to certain considerations such as the probable cause behind the officers arrest, the lawfulness of his stop, the issue of whether the driver actually refused the test and whether the law of implied consent as was read to the driver.

This hearing has nothing to do with your criminal trial in any way. The Department can invalidate the suspension and restore a driver’s license but the driver can still lose at trial. Likewise, losing the Department’s hearing does not mean that the driver cannot win at trial.

The penalties for being convicted of DUI are determined by the Florida legislature. The Judge has no discretion other than as to the length of probation. If convicted, the driver must be adjudicated guilty, must enroll in and complete an approved DUI school, and must complete community service hours. As DUI is a first degree misdemeanor the driver may be punished by up to one year in jail. A second DUI conviction within five years carries mandatory jail time of ten days and increased penalties. A Judge will usually suspend the driver’s license for six months to a year. By attending DUI school the driver can, in some cases, qualify for a hardship permit which allows driving to and from work, but no other use of an automobile.

Remember that the crime of DUI is an opinion crime. It is not a crime to drink and drive but only to do so to the extent your normal faculties to judge distance, exercise physical reactions and operate a motor vehicle are impaired. You are not guilty of this until you elect to plead so or until an assistant State Attorney can convince six jurors beyond a reasonable doubt as to the truth of such a theory. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.