Criminal DUI Proceedings in St. Petersburg, Clearwater, and Tampa
In many instances, DUI is an "opinion" crime in that the decision
to arrest is based on the opinion of the investigating officer (following
certain purported observations of impairment). In some states, DUI is
called "OUI" or "DWI", which are acronyms for "Operating
While Intoxicated" or "Driving While Intoxicated". In Florida,
DUI means "Driving While
Impaired". Thus, a person does not have to be
intoxicated to be arrested for DUI: if the officer is of the opinion that the driver
is under the influence of alcohol (or drugs) to the extent that his or
her normal faculties are impaired, an arrest will almost assuredly ensue.
The flip side of that coin is that it is not illegal to take a drink and
then drive in Florida. Just as "Driving While
Intoxicated" is not a recognized crime in this state, neither is "Drinking
and Driving". What is proscribed, to reiterate, is drinking to the point of
impairment, and then driving. In a jury trial setting, the prosecutor will usually
go to great lengths to ensure that potential jurors understand the distinction
between driving while
intoxicated, and driving while
impaired. As a St. Petersburg DUI attorney, it is my job to ensure that jurors
also understand (1) the distinction between drinking and driving; and
drinking to the point of impairment and driving; and (2) that while the
latter is illegal, the former is not. However it is done, this is a concept that
must be effectively conveyed.
In formulating his or her opinion of impairment by drugs or alcohol, the
arresting officer will take into account the accused person's driving
pattern, which usually forms the basis for the initial stop. Was the person
driving at an unreasonably excessive speed (too fast for conditions)?
Was the person driving at an unreasonably slow speed? Was he or she weaving
within the lane of travel? Was he or she failing to maintain a single
lane? Was the driver involved in an accident? The officer will also look
for additional clues of impairment upon making initial contact with the
driver. Is there an odor of alcohol emanating from the interior of the
vehicle or from the driver? Does the odor of alcohol become stronger as
the driver speaks? Is the driver slurring his or her words or otherwise
having difficulty with pronunciation? Are the driver's eyes bloodshot,
watery, and/or glassy? Does the driver have difficulty locating and producing
requesting documents (usually the driver's license, vehicle registration,
and proof of insurance)? Does the driver have difficulty exiting the vehicle?
Does the driver have difficulty walking from the vehicle to the roadside
area where further questioning and (possibly) field sobriety exercises
will be performed? Does the driver admit to drinking or ingesting drugs?
If the driver agrees to perform field sobriety exercises, are there issues
with physical coordination that suggest impairment? All of these observations
(or lack of observations, as the case may be), will factor into the officer's
opinion of impairment and, ultimately, whether he or she has
probable cause to make an arrest. As a former Pinellas County state prosecutor, and St.
Petersburg DUI attorney, I have seen remarkably few instances where a
person suspected of DUI was not placed under arrest for DUI.
Following the arrest, the driver will be asked to submit to some form of
test of his or her blood, breath, or urine. If the officer is not of the
opinion that the driver is impaired by alcohol, but rather, a chemical
or controlled substance, he or she will usually ask for a urine sample.
If the officer is of the opinion that the person is impaired by alcohol,
the officer will usually ask the person to submit to a breath test. Florida
law limits the circumstances under which law enforcement can seek a blood
sample, or compel one by force. These circumstances are detailed in the
"Defenses" subsection herein but, suffice to say at this point,
it usually requires that the administration of a breath test is impossible
or impractical, or the DUI case involves serious bodily injury to the
accused or some other person.
If the person refuses to submit to the required test, the officer will
read something called "implied consent warnings". These warnings
essentially state that in the event of a refusal, the driver will be subject
to a license suspension for a certain period of time. If the driver persists
in refusing, the refusal is used as evidence against him or her in the
subsequent criminal proceeding and, to a greater extent, in a trial situation
should the accused person elect to go that route. If the person is asked
to submit to a breath test, and the results are above a 0.08, the offense
becomes less of an opinion crime because there is now some hard empirical
data from which jurors may presume impairment. The same can be said for
a blood test which produces the same result. If the results are below
the threshold at which Florida law presumes impairment (0.08), the prosecutor's
job becomes very difficult. While the state can still prove impairment
based on other evidence (the officer's opinion regarding impairment
and the basis of that opinion, a video recording of FSTs performance,
and any inculpatory statements of the accused regarding alcohol consumption
and its effects), most jurors are highly disinclined to convict with a
breath or blood test below a 0.08. You should know that a
urine test is a qualitative test, and not a quantitative test. In other words,
the test can show a positive result for a specified chemical or controlled
substance, but cannot establish when the substance was ingested and, perhaps
more importantly, how much was ingested. Here again, the state will look
to other evidence, in conjunction with the positive result, to establish
impairment (the officer's opinions based on observations made during
the course of the DUI investigation, video recording(s), and inculpatory
statements of the accused). If the urine results come back with no evidence
of controlled substances, and there is no breath or blood test above a
0.08, the prosecution has got a problem. In most instances, the state
will reduce the charge and, in some, may outright drop it.
These are the circumstances upon which a criminal proceeding is initiated.
What follows is an overview of what the state is required to prove, the
presumptions of impairment (or lack of impairment) created by Florida
law in DUI cases, and how you can expect the criminal side of your DUI
case to progress, which will depend on where you were arrested (Pinellas
or Hillsborough County) and the offense level (misdemeanor or felony).
Once again, this is an overview. Specific questions should be directed
to an experienced Tampa Bay area DUI lawyer.
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What The State is Required to Prove
In Florida, the state can prove DUI two ways. In either scenario, however,
the state is required to prove that the accused person was driving a motor
vehicle or was in actual physical control of a motor vehicle at the time
of the alleged offense. According to the Florida Standard Jury Instructions
on DUI, "actual physical control of a vehicle" means that "the
defendant must be physically in or on the vehicle and have the capability
to operate the vehicle, regardless of whether he or she is actually operating
the vehicle at the time". Thus, if you decide to "sleep it off"
in your car, and the keys are in your pocket, contact with a law enforcement
officer may very well result in a DUI investigation and an arrest. Your
vehicle does not have to be moving, or even started, for a DUI arrest to occur.
So what are the two ways DUI can be proven? Either (1) driving (or being
in actual physical control of a motor vehicle) while under the influence
of alcohol or chemical or controlled substances to extent your normal
faculties are impaired; or (2) driving (or being in actual physical control
of a motor vehicle) with an unlawful balance (0.08 or higher). The Florida
Standard Jury Instruction on DUI reads as follows:
- To prove the crime of driving under the influence, the State must prove
the following two elements beyond a reasonable doubt:
- The defendant drove or was in actual physical control of a motor vehicle.
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While driving or in actual physical control of the vehicle, the defendant:
a. was under the influence of [alcoholic beverages][a chemical substance][a
controlled substance] to the extent that [his][her] normal faculties were impaired
or
b. had a [blood][breath] alcohol level of 0.08 or more grams of alcohol
per [100 milliliters of blood][210 liters of breath].
Why is it necessary to afford the state two methods of proving DUI? Because
not every one is going to agree to submit to a breath test or, where appropriate,
a blood test. Many people refuse these tests for a variety of reasons,
regardless of the potential license suspension implications a refusal
carries. Where the state has a breath or blood test with results that
exceed 0.08 grams of alcohol per 210 liters of breath or 100 milliliters
of blood (as the case may be) the state will obviously seek to have this
evidence admitted. In addition to introducing evidence that the defendant's
breath or blood alcohol levels exceed the threshold at which Florida law
presumes impairment, the state will also have the investigating officer
testify as to his or her observations of impairment, any inculpatory statements
made by the defendant during the course of the DUI investigation, and
introduce a video recording of the defendant's field sobriety test
performance, assuming one exists. Where there is a breath or blood test
with results of 0.08 or higher, it will be the crux of the state's case.
Where the defendant refused the breath or blood test, the state will attempt
to prove its case using the second avenue: impairment of "normal
faculties". What are normal faculties? According to the standard
jury instruction for DUI offenses in Florida, normal faculties "include,
but are not limited to, the ability to see, hear, walk, talk, judge distances,
drive an automobile, make judgments, act in emergencies and, in general,
to normally perform the many mental and physical acts of our daily lives".
Here again, the state will rely on the testimony of the arresting officer
regarding purported signs of impairment, the accused's statements,
and any video recordings of field sobriety test performance. The state
will really emphasize the more punitive implications of a refusal for
the accused person's driver's license. The periods of suspension
for a refusal is always longer and the opportunity for a hardship license
can be squashed where there is more than one refusal (e.g. a refusal in
a prior DUI as well). The state will argue that the only reason a person
would refuse to submit to the test, given the harsh driver license implications,
is a consciousness of guilt. As a St. Petersburg DUI defense attorney,
it is my job to set forth reasonable, plausible explanations for the client's
refusal that are unrelated to consciousness of guilt. The reasons are
plenary. Many people simply don't trust the reliability of these machines.
Many have been told you should never blow no matter what. The client is
usually told they are going to jail whether they blow or refuse, even
if the results are below a 0.08 (which is true). Jurors are usually open
to considering reasons for a refusal other than consciousness of guilt.
Whether the state proceeds under an "unlawful balance" theory
(0.08 or higher) or an "impairment of normal faculties" theory,
its burden of proof is "beyond a reasonable doubt". This is
the state's burden of proof in
any criminal proceeding, whether the charge is murder, grand theft, or DUI.
It is the highest burden of proof in the American legal system. Also,
each element of the offense must be proven beyond a reasonable doubt.
It is not enough to prove that the person's breath or blood alcohol
level exceeded a 0.08 or that his or her normal faculties were impaired.
The state must also prove that the accused person was driving or in actual
physical control of a motor vehicle at the time. As a former Pinellas
County state prosecutor and St. Petersburg DUI lawyer, I can tell you
that it is quite common to have a DUI case wherein the issue is whether
the accused was driving or in actual physical control of a vehicle, as
opposed to impairment. These scenarios can lead to some hotly contested
jury trials.
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"Presumptions of Impairment" in Florida DUI Cases
In DUI cases with a breath or blood test result, there are certain presumptions
that will apply, pursuant to Florida Statutes section 316.1934(2)(a),
(2)(b), and (2)(c). In such cases, where requested, the jury will be instructed
as follows (Fla. Standard Jury Instruction 28.1):
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If you find from the evidence that while driving or in actual physical
control of a motor vehicle, the defendant had a blood or breath alcohol
level of .05 or less, you shall
presume [emphasis added] that the defendant was not under the influence of alcoholic
beverages to the extent that [his][her] normal faculties were impaired; but this
presumption [emphasis added] may be overcome by other evidence demonstrating that
the defendant was under the influence of alcoholic beverages to the extent
that [his][her] normal faculties were impaired.
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If you find from the evidence that while driving or in actual physical
control of a motor vehicle, the defendant had a blood or breath alcohol
level in excess of .05 but less than .08, that fact does not give rise to any
presumption [emphasis added] that the defendant was or was not under the influence
of alcoholic beverages to the extent [his][her] normal faculties were
impaired. In such cases, you may consider that evidence along with other
evidence in determining whether the defendant was under the influence
of alcoholic beverages to the extent to the extent that [his][her] normal
faculties were impaired.
- If you find from the evidence that while driving or in actual physical
control of a motor vehicle, the defendant had a blood or breath alcohol
level of .08 or more, that evidence would be sufficient by itself to establish
that the defendant was under the influence of alcoholic beverages to the
extent that [his][her] normal faculties were impaired. But this evidence
may be contradicted or rebutted by other evidence demonstrating that the
defendant was not under the influence of alcoholic beverages to the extent
that [his][her] normal faculties were impaired.
You will notice that words "presume" and "presumption"
are in paragraphs one and two, but there is no such verbiage in paragraph
three (where there is evidence of a breath or blood test above a 0.08).
This is not by accident.
In
Wilhelm v. State of Florida, 568 So.2d 1 (Fla. 1990), the defendant was charged with vehicular homicide,
DUI Manslaughter, and Manslaughter after his vehicle struck two others
and a child occupant of the station wagon was killed. At trial, the state
introduced evidence of a chemical test which showed the defendant's
blood alcohol level to be .20. The defendant testified that all he has
consumed was one beer and some Nyquil. The judge instructed the jury as
follows: "If you find from the evidence that the defendant had point
zero one percent or more by weight of alcohol in his blood, it is a prima
facie case that the defendant was under influence of alcoholic beverages
to the extent his normal faculties were impaired". He was convicted
of DUI Manslaughter but was acquitted of the other two charges. On appeal,
the defendant argued that the instruction impermissibly shifted the burden
of proof to him on the element if intoxication, in violation of his due
process rights, by requiring the jury to find intoxication if they found
that he had the requisite blood alcohol level. The Florida Supreme Court
agreed and reversed the conviction and remanded the case for a new trial.
In its opinion, the Supreme Court noted that the absence of any language
in the instruction stating that the defendant could rebut the evidence
of blood-alcohol content as it related to intoxication, made it possible
that the jury understood the instruction not only as a mandatory presumption,
but one which is irrebuttable.
Here is the takeaway: where there is a breath or blood test at or below
a 0.05, the defendant is presumed not to be impaired. If there is a blood
or breath test over a 0.05 and below a 0.08, there is no presumption either
way. A breath or blood test at or over 0.08 is
evidence of impairment. That evidence is sufficient by itself to establish the
defendant was under the influence of alcohol to the extent his or her
normal faculties were impaired. If the defendant so chooses (remember,
in a criminal case the defendant does not have to prove or disprove anything),
he or she may present evidence to rebut the state's blood or breath
test as it relates to the issue of impairment. Just because you are above
a 0.08, does not mean you are impaired and this argument can be made to
the jury. It is especially effective where there is evidence that the
breath test machine was faulty in some way or had not been properly maintained.
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How a DUI Charge Progresses in St. Petersburg, Clearwater, and Tampa
If you are arrested for DUI in Pinellas County, you will be brought to
the Pinellas County Jail. If you are arrested in Hillsborough County,
you will be brought to either the Orient Road or Falkneberg facilities.
Under Florida law, you must be brought before a judge within 24 hours
of your arrest, so that the judge can advise you of your charge(s), determine
whether sufficient probable cause exists to hold you in lieu of bond,
assess the propriety of the bond that has been set in your DUI case, and
conduct a brief financial inquiry to determine whether you qualify (provisionally)
for the services of the public defender. This is called a "first
appearance" or an "advisory" hearing.
In Florida, you are entitled to a bond unless the offense is a capital
or life felony and certain additional criteria are met. DUI offenses are
not going to qualify for a no-bond status. For most DUI offenses, the
bond will be pre-set set at around $500.00. If you post the bond before
your advisory hearing, then you will, obviously, not be in attendance.
This is not a "mandatory" hearing in the sense that your absence
will result in the issuance of a warrant. When the judge calls your name,
the clerk will announce "bonded" and the court will move on
to the next case. Because Florida law requires a person to remain in custody
for eight hours following a DUI arrest, you may not be in a position to
bond out before the hearing. My experience over the years has been that
most judges will release you on your own recognizance if this is a first
time DUI offense. You will not likely be ROR'd if this is a second
or subsequent DUI, there was an accident, or you have a history of failing
to appear for court dates. The court can set conditions of your release
as well. These can include a "no alcohol" provision and in some
cases, the court will require you to wear a SCRAM monitor to ensure compliance
with its order. A SCRAM monitor is worn around the ankle and measures
the alcohol content of your sweat. A positive result will land you back
in front of the judge and, possibly, back in jail. Again, most first time
DUI offenders do not need to be concerned with higher bond amounts, no
alcohol conditions or SCRAM monitoring.
The next court date in a DUI case is the arraignment date. If arrested
in Pinellas County, the arraignment date will be printed at the bottom
of your DUI citation. If the arrest occurred in the St. Petersburg area
(south of Ulmerton Road), your arraignment will be set in South County
Traffic Court. If your arrest occurred in Clearwater (north of Ulmerton
Road) your case will be set in North County Traffic Court. If you arrested
in Hillsborough County, the arraignment date may be printed along the
bottom or you may be required to contact the traffic court clerk to schedule
your arraignment within a certain period of time. The purpose of an arraignment
is to have the accused person advised of the formal charges pending against
him or her, and have that person enter a plea of some sort. There are
three options: guilty, no contest, or not guilty.
Ordinarily, a person is not formally charged with a crime unless and until
the state prosecutor files a charging document with the clerk of court,
called an "Information". It is only if an Information is filed
that an arraignment date is set. Traffic charges, at least at the misdemeanor
level, are formally charged bycitation. This means that once the arresting officer files your DUI citation with
the clerk of court, you are formally charged with DUI. There is no review
process by a prosecutor, in misdemeanor DUI cases, prior to formal charges
being filed against you. This puts the accused at a bit of a disadvantage
because the DUI defense attorney is not in a position to point out potential
problems with the state's case, prior to the filing of the formal
charge, in an effort to negotiate the filing of a lesser charge, or none
at all. In non-traffic criminal cases, this can certainly be done on a
client's behalf and most prosecutors are willing to consider mitigating
information from a criminal defense attorney before making a formal charging
decision. As a Pinellas County state prosecutor, I
always was. For further reading on this subject, see the "Affecting the Filing Decision" section of our website.
If you have an attorney, either court appointed or privately retained,
that person will file, with the clerk of court, what is called a "Notice
of Appearance" on your behalf. This lets the judge and the state
know that you have a lawyer and who your lawyer is. If you were appointed
an attorney, and thereafter hire private counsel, the public defender
will usually move to withdraw (orally) at the first court date. The "Notice
of Appearance" will almost always include a "Written Plea of
Not Guilty", a "Demand For Discovery", and a demand for
any and all exculpatory evidence against you, pursuant to
Brady v. Maryland. Exculpatory evidence is evidence that tends to negate your guilt. The prosecutor
is required by law to disclose all such evidence in his or her possession,
whether you elect to participate in formal discovery or not. The effect
of the "Written Plea of Not Guilty" is that neither you nor
your attorney need to appear for the arraignment. Upon the filing of the
written not guilty plea, the arraignment will be reset by the clerk of
court for what is called a "Pre-trial Conference" hearing (in
Pinellas County) or a "Disposition" hearing (in Hillsborough
County). If you do not have an attorney, you must attend the arraignment.
Failing to appear for the arraignment will result in a warrant being issued
for your arrest.
There is one caveat to the non-appearance rule where a written plea of
not guilty has been entered. If you were arrested for a DUI in Pinellas
County, and you were also arrested for a felony drug charge
as part of the same episode, there is a likelihood that the drug charge will end up in drug court
(Division N). The felony will be charged by Information and the DUI will,
in all likelihood, be charged as count two (even though the citation was
previously filed in traffic court by the arresting officer). You must
attend the drug court arraignment whether you have an attorney or not,
and whether the attorney has entered a written plea of not guilty or not.
For more information, see the "Drug Court" and "Pinellas County Drug Court" sections of our website.
The next court date after the arraignment, is called a "pre-trial
conference hearing" (in Pinellas County) or a "disposition hearing"
(in Hillsborough County). In most instances, your appearance will not
be required, unless you are going to resolve your case. Your DUI defense
attorney will have you sign a waiver of your appearance at these hearings
and he or she will attend on your behalf. You should be aware that there
are some judges, particularly in felony court, that prefer the client
to be present whether a waiver of appearance is filed nor not (unless
the client resides outside the jurisdiction of the court). This is yet
another example of where it pays to know your judge. The court will usually
allow three to four pre-trial conferences before setting the matter for
trial. During this time period, the discovery process is being completed
and any pre-trial motions that need to be litigated, such as a motion
to suppress, are filed and calendared for hearing. For more information,
see the "Defensive Motions" section of our website. If there is a basis to seek a reduction
in charge, it is during this time that those types negotiations ensue.
On the defense side, it can take awhile to obtain all of the evidence
in the case, draft a letter, and get an approval from the state (or not).
As long as the case is moving toward resolution, the court will usually
give you the time you need before setting the matter for trial.
If you are charged with a misdemeanor DUI, and you reside out of state,
your attendance will not be required to enter a plea, if that is what
you intend to do. Your DUI defense attorney will mail you what is called
a "plea in absentia" and a fingerprint card. The plea in absentia
will list all of the rights you have, and the rights you are giving up,
by entering a plea of guilty or no contest (as opposed to taking the case
to trial). You will be required to sign the pleading in the presence of
a notary, and take the print card to a local law enforcement agency for
fingerprinting. The cost for rolling your prints is typically around $15.00.
Once that is complete, you mail the executed plea in absentia, fingerprint
card, and a check (payable to the clerk of court to cover the applicable
fines and costs), to your attorney who will file it in open court at a
pre-trial or disposition hearing. You can report to probation by mail
and, if all conditions of your DUI charge are complete by the time the
PIA is filed, you may be allowed to terminate supervision immediately.
You should know that this option does not apply to a felony DUI charge.
If you are charged with a felony DUI offense, and you intend to enter
a plea, you must be present in court to do that.
In most instances, DUI constitutes a misdemeanor offense. However, a DUI
offense is a felony, under Florida law if (1) the accused person has three
prior convictions for DUI (anywhere or at any time); (2) the offense results
in serious bodily injury to another; or (3) the offense results in a death.
The state may also prosecute a DUI offense as a felony if the accused
person has two prior DUI convictions, at least one of which occurred within
the past ten years. With regard to felony DUI charges based on priors,
the relevant time frames are conviction to offense. Thus, if you have
two prior DUIs, the date
offense for the most recent prior DUI is outside of ten years, but the date of
conviction for that prior offense is within ten years, the state may prosecute your
charge as a felony.
Unlike a misdemeanor DUI, which is charged by citation, a felony DUI will
ultimately be charged by Information (even though a citation is issued
as the time of arrest). Because it is charged by information, there is
room for pre-file negotiations with the prosecutor, which is something
your St. Petersburg DUI attorney will want to actively engage in. Sometimes,
the prior convictions are so old that no meaningful record conviction
exists (i.e. a judgment and sentence form, filed with the clerk, with
fingerprint cards). In a felony DUI prosecution, the trial is bifurcated,
which means the jury will first consider whether the state has proven
the elements of DUI beyond a reasonable doubt. During this phase of the
trial, the jury is not made aware of the prior convictions. It is only
if the jury finds the defendant guilty that the second phase of the proceeding
ensues. It is during this phase that the state must prove up the prior
convictions. If there is insufficient evidence of the requisite priors,
and your St. Petersburg DUI defense attorney can point that out, the state
may be willing to file what would otherwise be a felony as a misdemeanor.
For a person with no prior felony convictions, this can be of tremendous
benefit as diversion programs are not offered for DUI offenses in Pinellas
and Hillsborough Counties, and withholding adjudication of guilt in a
DUI case is prohibited under Florida law. You should also be aware that
the prior pleas must have been "counseled" if they are to be
used to enhance a pending DUI from a misdemeanor to a felony. This means
that the accused person must have been represented by counsel at the time
the prior plea was entered (either by a private attorney or a public defender).
In situations involving serious bodily injury, it may be that the injuries
sustained by the other driver were not severe enough to meet the statutory
definition of serious bodily injury. In DUI cases involving serious bodily
injury, the state will usually provide the alleged victim's medical
records as part of discovery. If not, your St. Petersburg DUI attorney
will want to take steps to obtain these records through other means. If
the injuries do not rise to the level of "serious bodily injury"
your attorney will be a better position to negotiate a more favorable
resolution.
As with all felony offenses in Florida, the court will take into account
the accused person's sentencing guideline score in fashioning an appropriate
(and legal) sentence. Unlike the federal system, sentencing guidelines
in Florida are not "advisory" - there are a limited number of
bases upon which the court can depart from the guidelines where the accused
person is scoring mandatory prison. A person charged with a third DUI
within ten years (remember, only one of the two prior convictions must
be within ten years here), or a fourth DUI in a lifetime will not score
mandatory prison unless he or she has other felony charges before the
court for sentencing, or a significant prior record. Felony DUI charges
based on priors constitute third degree felonies in Florida, which means
that the maximum penalty that can be lawfully imposed is five years in
the Florida Department of Corrections. DUI with serious bodily injury
is also a third degree felony, but it will, in and of itself, score mandatory
prison time. DUI manslaughter is a second degree felony, which means it
is punishable by up to fifteen years in state prison. This offense will
also score mandatory prison time, regardless of whether there are other
offenses before the court for sentencing, and whether the person has a
prior criminal history.
In all cases, the accused person will be required to complete DUI School,
undergo an alcohol evaluation, and complete treatment if recommended.
These conditions are requirements of probation and are also conditions
precedent to obtaining a hardship license following the inevitable license
suspension that will result at the time a plea is entered (remember, there
are always two license suspensions to contend with in a DUI case - the
administrative suspension, and the court imposed suspension). The length
of the license suspension will depend on the number of prior DUI convictions
the accuse person has. The greater the number of prior DUI convictions,
the longer the period of suspension. The first time DUI offender will
be eligible for a hardship license, with regard to the court imposed suspension,
immediately after the conviction is entered as long as that person has
completed the DUI school, the alcohol evaluation, and at least enrolled
in treatment if is was recommended by the evaluator. In St. Petersburg,
Clearwater, and Tampa traffic court, the judge will usually allow your
probation to terminate as soon as all conditions of your DUI sentence
are complete. Thus, there is often a double benefit to completing the
DUI School, alcohol evaluation, and treatment before the plea is entered:
(1) you can get a hardship license immediately (again, if you are a first
time offender); and (2) you can get off probation almost immediately as
well. As a St. Petersburg DUI attorney, I have my clients enroll in DUI
School and undergo an alcohol evaluation immediately upon being retained.
You should be aware that, generally, there is no provision for a hardship
license for a second or subsequent DUI
court imposed suspension. If the period of suspension is five years or longer (where,
for example, you have two DUI convictions with five years), there may
be some options. An experienced Tampa Bay area DUI attorney can provide
additional details.
Unless this is your first DUI conviction with a breath or blood alcohol
level below a .15, you will also be required to have an ignition interlock
device installed in your car. The length of time you will be requited
to maintain an interlock device will depend on the number of prior DUI
convictions you have. This requirement, like the DUI school, alcohol evaluation,
and treatment, will usually be imposed as a condition of probation (there
are exceptions which, again, a qualified St. Petersburg DUI attorney can
explain) and will always be a condition precedent to the issuance of a
hardship license and or full license reinstatement.
There will be instances wherein the DUI case cannot be resolved through
plea negotiations or through pre-trial motions, such as a motion to suppress
the traffic stop and/or other evidence (for more information, see the "Defensive Motions" section of our website). In these in instances, the case will proceed
to trial. An accused person has the right to a trial by jury, which he
or she may waive and proceed to trial with the judge as the sole finder
of fact (with the consent of the state). Unless the only reason you are
proceeding to trial is to preserve an issue for appeal, I cannot think
of any good reason you would want to waive your right to a jury trial.
A DUI case, whether felony or misdemeanor, will be tried by a jury of
six. A thorough and effective examination of the prospective jurors is
critical in any criminal case, but this is especially so in a DUI case.
There will, in all likelihood, be members of the panel who have been affected
by a "drunk" driver or know someone who has. Some of them may
be affiliated with anti drunk driving organizations such as MADD or SADD.
Some may know police officers, prosecutors and/or probation officers on
a personal level and may be inclined to allow those relationships to play
a role in their deliberations. Fortunately, most prospective jurors are
quite candid about the existence of these relationships and the extent
to which they may affect that juror's ability to fairly and impartially
determine the facts and apply the law as the judge instructs.
Once the jury is selected, the state and the defense will make an opening
statement (if they so choose), which is meant to provide the jury with
an overview of what they expect the evidence to show. In Pinellas county,
opening statements will commence immediately after jury selection. In
Hillsborough and Pasco counties, jury selection will usually be on one
day, and opening statements will commence later in the week. The state
will put its case on first which involves calling a number of witnesses
(such as the officer who conducted the traffic stop, the officer who conducted
the DUI investigation (which may be someone other than the stop officer),
the breath test administrator (where applicable) and breath test maintenance
personnel (again, where applicable)). Through these witnesses, the state
will seek to introduce tangible evidence, including video recordings of
the stop, video recordings of the accused person's performance on
field sobriety exercises, and sometimes, the person's interaction
with the breath test operator following the arrest. If breath or blood
samples were obtained, the state will seek to introduce the results of
the associated chemical tests. Where a urine sample was submitted, and
chemical or controlled substances were detected, the state will seek to
admit this type of evidence as well, and may call expert witnesses to
testify on issues related to the impairing effects of such controlled
substance and how they interact with each other and/or with alcohol. Of
course the defense will have the opportunity to confront and cross examine
each and every witness that the state calls as part of its case-in-chief.
Following the state's presentation of witness testimony and other evidence,
the defense will have the opportunity to call witnesses, including the
defendant himself or herself, and to present evidence. Remember, however,
that in any criminal case, the accused person has no burden of proof whatsoever;
he or she is not required to prove or disprove anything. The burden is
on the state and that burden does not shift. In any criminal case, the
state is required to prove each element of each charge beyond a reasonable
doubt, and a DUI case is no different. It is the highest burden of proof
in the American legal system. If the defense elects to call witnesses,
then the state will have the same opportunity to cross examine those witnesses.
The decision to call witnesses (especially the defendant) and to present
evidence is one that must be carefully considered and thoroughly discussed
between the attorney and the client. Following the defendant's case
in chief (if the defense elects to put on a case) both the state and the
defense will have an opportunity to make a closing argument. Closing arguments
are an opportunity for the state and the defense to present an overview
of what they beleive the evidence has shown, and to apply the evidence
and testimony to the applicable law. Closing arguments are not evidence
and cannot be considered as such by the jury. In Florida, the state has
the opportunity to make the its closing argument first. The defense goes
second and, thereafter, the state will be entitled to present a rebuttal
argument to the jury. The state always goes first and always goes last,
with the defense presentation in between. For more information, see the
Trial section of our website.
DUI law is complicated. There are many components to it, and a thorough
working knowledge of both Florida DUI law and local courtroom practice is
essential to successfully navigating the DUI mine field. If you have been arrested
for a DUI in St. Petersburg, Clearwater, or Tampa, The Kilfin Law Firm,
P.C. can help. St. Petersburg DUI attorney Donald J. Kilfin has handled
hundreds of DUI cases as both a Pinellas County state prosecutor and Tampa
Bay area criminal defense attorney.