Driving Under the Influence is one of the most serious misdemeanor crimes in the State of Florida. A DUI conviction comes with a minimum fine of $500, restrictions on your ability to drive, and many other inconvenient sanctions. Here are 5 things you should know about DUI’s in Florida:

1. There are three different ways a person can be found guilty of a DUI.

A) Proof by Breath Test: The most commonly known way to convict a person of DUI in Florida is to prove a person is driving (or in actual physical control of) a vehicle within the State and has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

B) Proof by Blood Test: The second way to convict a person of DUI in Florida is to prove a person is driving (or in actual physical control of) a vehicle within the State and the person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood.

C) Proof without a Blood or Breath Test: The third—and perhaps most unknown—way to convict a person of DUI in Florida is to prove a person is driving (or in actual physical control of) a vehicle within the State and the person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under Chapter 893, when affected to the extent that the person’s normal faculties are impaired. This third way of proving DUI is very broad and gives prosecutors the opportunity to prove a person is guilty of DUI in the situation where there was no breath test or blood test taken by law enforcement. (Note: The standard of proof at criminal trials in Florida is beyond a reasonable doubt.)

For example, if a person is seen swerving heavily while driving their vehicle, cannot stand up without swaying or falling, has an open container of beer in their vehicle, and wreaks of alcohol, a jury may find that the person is guilty of DUI because they determined that the person was driving a vehicle when affected by alcoholic beverages to the extent that the person’s normal faculties were impaired.

A prosecutor can still prove a person is guilty of DUI even if there was no breath or blood test admitted into evidence. Therefore, you should hire an experienced DUI attorney to help you defend your case properly.

2. You can get a DUI even if you aren’t driving a car.

The first element of the DUI Statute in Florida (316.193) is a person must be driving or in actual physical control of a vehicle within the State. This is not as simple as it seems. Florida Statute 316.003(99) defines vehicle as “Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices and devices used exclusively upon stationary rails or tracks.” I have seen juries convict people of DUI for riding a bicycle while under the influence of alcohol to the extent that their normal faculties were impaired. The takeaway from this section is that riding a bicycle, a horse, or any other device that can transport you does not necessarily prevent you from being convicted of DUI in Florida.

3. You do not have to be driving to get a DUI.

When I was a prosecutor, I witnessed numerous defendants get convicted of DUI when they were merely asleep in their vehicle in a parking lot. The DUI Statute in Florida says the person must be driving or in actual physical control of a vehicle in order to be convicted. “Actual physical control” is defined as having the apparent ability to immediately operate the vehicle while under the influence. This definition is broad so it’s important to understand that a creative argument may be needed to defend your unique situation. Florida courts look at the location of the keys, the location of the vehicle, the condition of the vehicle, and the evidence of intoxication when determining if there was actual physical control. Some people believe that it is legal to sleep in their vehicle while intoxicated as long as their car key is not in the ignition, but that is not always correct. The judge and jury have the final say in determining if a person was in actual physical control of the vehicle and the broad definition of this term has led to many different outcomes because the specific facts of each case play an important role in making this determination.

4. You must be under arrest before law enforcement can ask you to submit to a breath test.

This is a crucial piece of knowledge for anyone living or visiting Florida because our State requires a law enforcement officer to place a person under arrest for DUI before they can ask that person to submit to a breath test, which is used to determine a person’s breath-alcohol level. Therefore, if you are under arrest and asked to submit to a breath test, law enforcement must be able to show that they had probable cause to determine you had already committed the offense of DUI. If a judge finds that there was not probable cause for the DUI arrest or you are asked to submit to a breath test before you were arrested, then a subsequent breath test would not be valid. This is a very important, and often overlooked, aspect of DUI cases in Florida.

5. Failure to submit to any lawful test of your breath will result in the suspension of your privilege to drive for a period of 1 year for a first refusal, or for a period of 18 months if your driving privilege has been previously suspended as a result of a refusal to submit to such a test.

This language is taken directly from Florida Statute 316.1932. If you refuse to submit to a lawful test of your breath, your license will be suspended by the Florida Department of Highway Safety and Motor Vehicles for 1 year or 18 months. However, if your driver’s license has been suspended for a refusal to submit to a breath test, you may be able to apply for a hardship license, which would enable you to drive in very specific situations, such as to and from work.

You do have a choice to make when you are asked to submit to a lawful breath test. If you decide to refuse that test, your license will be suspended by the Florida Department of Highway Safety and Motor Vehicles. However, you may be able to get a special kind of license to give you some driving privileges despite the original suspension. (*It is also important to note that when a person refuses to take a lawful breath, blood, or urine test, he or she commits a misdemeanor offense if that person’s license has already been suspended for a prior refusal to submit to a lawful test of their breath, blood, or urine.)

If you or someone you know is facing a DUI charge, call Landers & Sternberg PLLC at (407) 495-1893 or fill out the form below. We are here to help.

(words by M. Parker Landers, ESQ)