St. Petersburg DUI Attorney Answers Frequently Asked Questions
How do I choose the best criminal defense attorney for my St. Petersburg, Clearwater, or Tampa DUI charge?
Let me start by saying that there are some exceptionally skilled DUI defense attorneys in this area. Many of them are good friends of mine, people I have worked with for many years now. There is not just one "right" lawyer among the many; there could be several.
A family member of mine was recently arrested for an out of state DUI (a state I am not licensed in) and I was tasked with trying to find the best DUI defense lawyer I could. I began with an Internet search of DUI lawyers in that area and spent considerable time looking at their websites and evaluating their qualifications. How long have they been practicing law? Do they practice in more than one area, or focus exclusively on criminal defense and DUI? Have they worked as a prosecutor in that jurisdiction? For how long? Have former clients reviewed them? What do their former clients say? Is there any indication of past discipline on the state bar website?
After narrowing my search to just a handful (based on the aforementioned criteria), I began making phone calls. How quickly did the attorney return my call (if at all)? Having practiced DUI law for almost seventeen years, and having done so in two states, I knew what questions needed to be answered. Did the attorney seem to know what they were talking about? Do they know who the judge will be? Are they before that judge on a regular basis, and familiar with his or her preferences and the courtroom's "culture"? What is that relationship like? Do they know who the assigned prosecutor will likely be? What is that relationship like? How many DUI cases do they typically handle at one time? Have many have they handled (approximately)? How many have they tried? What is their success rate? What are their fees like, compared to other qualified attorneys in the area? What options are available to help my family member through this difficult, stressful time? The attorney I chose ended up doing a superb job.
These are the "guidelines" I would suggest a person follow. Take your time. Take a few days if you need to. Meet face to face with those you believe are qualified to represent you. Ask lots of questions. Take notes. When I meet with a prospective client, I know they are scared. I know they are confused. I know they are worried about losing their license or going to jail. I always tell them to ask me as many questions as they want and I will answer them as many times as they need me to. My goal is to have that person leave the office with a much better understanding of their circumstances than when they walked in. Most quickly come to realize that while there is going to be some expense and inconvenience, everything is going to be just fine.
If you spend some time at it, I have no doubt that you will find a highly qualified attorney to get you through your DUI case with the least amount of stress and anxiety possible.
Is Pre-trial Intervention available in my DUI case?
In Pinellas and Pasco Counties, there is no form of DUI Pre-trial Intervention or diversion program available. As of March 1st, 2018, however, Hillsborough County now offers a form of DUI diversion through their "Reducing Impaired Driving Recidivism" program. In non-DUI cases, pre-trial intervention results in the filing of a dismissal or nolle prosse after certain conditions are met by the accused person. Diversion is essentially a contractual agreement between the defendant and the state attorney's office and requires successful completion of a probationary period while the conditions are being satisfied. The probationary period will last anywhere from nine to eighteen months depending on whether the charge is a misdemeanor or a felony. For more information, see the "Pre-Trial Diversion" section of our website.
Some Florida counties have offered a DUI diversion program for years. Unlike non-DUI diversion, however, successful completion of these programs doesn't result in a outright dismissal of the charge. Instead, the DUI charge is reduced to a Reckless Driving charge and adjudication of guilt is withheld. For the first time offender, this can be of tremendous benefit as Florida law does not permit the withholding of adjudication in a DUI case. As indicated above, Hillsborough has very recently joined the ranks of Florida's select few counties offering this type of program.
To be eligible for the RIDR program, the DUI offense must be a misdemeanor. If there was a minor in the vehicle at the time of the offense, if the BAC was .20 or higher, or if there was crash, the applicant will be disqualified. Also, the person cannot have a prior or pending DUI or other enumerated traffic offense (leaving the scene of an accident with injury or death, vehicular homicide, or alcohol related reckless driving). The state attorney's office will assign a sanction level to eligible DUI cases, as follows: (1) Level 1 - BAC at or below .15; (2) Level 2 - BAC above .15 or no breath sample (refusal cases); and (3) Level 3 - drug related DUIs. At the arraignment hearing, the accused person will waive his or her right to a speedy trial and the case will be reset for a disposition hearing (referred to as a pre-trial hearing in Pinellas and Pasco counties) approximately sixty days out.
Before the scheduled disposition hearing, the accused must complete the "pre-plea sanctions" and provide proof. At the hearing, he or she may accept the plea offer, enter a plea, and be sentenced in accordance with the RIDR program. There are certain pre-plea sanctions that are required of all offenders, regardless of sanction level. These include (1) remaining crime free; (2) completion of DUI school and the commencement of any recommended treatment; (3) attendance at a MADD victim impact panel; and (4) completion of 10 hours of community service. The Level 1 and Level 2 offender must further provide proof of installation of an ignition interlock device or a continuous alcohol monitoring device (e.g. a SCRAM monitor). The level 3 offender must further (1) not posses or consume alcohol, illegal drugs, or non-prescribed drugs; and (2) use PharmCheck Drugs of Abuse Patch with results provided to the SAO.
Upon successful completion of the pre-plea sanctions, DUI offenders will be offered a plea of reckless driving with the following sanctions: (1) withhold of adjudication; (2) twelve months of probation; (3) standard court costs and conditions of probation; (4) ten day vehicle impoundment; (5) no possession or consumption of alcohol, illegal drugs, or non-prescribed drugs during probation; and (5) successful completion of DUI school and any recommended treatment. Level 1 offenders must further complete fifty hours of community service and three months of ignition interlock alcohol monitoring or continuous alcohol monitoring. Level 2 offenders must further complete seventy-five hours of community service and six months of ignition interlock alcohol monitoring or continuous alcohol monitoring. Level 3 offenders must further complete fifty hours of community service and wear a PharmCheck Abuse Patch for three months with results provided to HCSO probation. The Hillsborough County State Attorneys Office will credit all DUI offenders for sanctions already completed at the time of sentencing. I don't know if Pinellas and Pasco Counties will implement similar DUI diversion programs but if so, I doubt it will be any time soon.
Can the Court withhold adjudication of guilt in my DUI case?
No. Florida statutes section 316.656(1) provides that no court may suspend, defer, or withhold adjudication of guilt or the imposition of sentence for a violation of 316.193 (Florida's DUI statute). For further reading, see the "Withholding of Adjudication" section of our website. In most instances where the state agrees to reduce the charge to reckless driving, an adjudication of guilt is part of the plea offer. The exception is Hillsborough County's newly implemented RIDR program for certain first time DUI offenses. There, the sanctions are somewhat more severe than they would otherwise be, but upon successful completion, the DUI charge is amended to a Reckless Driving charge and adjudication of guilty is withheld.
If your DUI case in pending in Pinellas or Pasco counties, a reduction to a Reckless Driving charge with a withhold of adjudication is highly unlikely, but it is not beyond the realm of possibility. If there are some significant proof issues with the case, for example, the state may agree to withhold adjudication of guilt on the amended charge of reckless driving. In a recent Pinellas County case, my client performed well on Field Sobriety exercises, blew a 0.079, and refused a urine test. His refusal was on account of his frustration at not being released after blowing below the legal limit. When he hired me the following day, I sent him to a lab for a drug test which yielded negative results. The state agreed to amend the charge to reckless driving, with a withhold of adjudication, and a small fine. My client opted for this in lieu of a jury trial. After nearly twenty years in the business, as a former Pinellas County state prosecutor and a St. Petersburg DUI attorney, I can say that this rarely happens however.
Should I enroll in DUI School Now?
Yes. In all likelihood, some action will be taken on your privilege to drive, whether it is administrative, court-imposed, or both. Completion of DUI School, undergoing an alcohol evaluation, and at least enrolling in treatment (if recommended) is a condition precedent to obtaining a hardship license (assuming you are otherwise eligible) and fully reinstating your privilege to drive once the revocation period has elapsed.
If this is your first DUI offense, for example, you will lose your privilege to drive within ten days of your arrest unless you either (1) request a formal review hearing with the Bureau of Administrative Reviews; or (2) waive your right to a formal hearing and request a review of your eligibility for an immediate hardship license. If you select option (1), and you win the formal review review hearing, there is no administrative suspension and you can immediately reinstate your driving privilege (unrestricted). If you do not win, your license will be suspended for 6 months if your breath or blood alcohol level was 0.08 or higher and 12 months if you refused. You can obtain a hardship license after thirty days for an unlawful balance, and after ninety days for a refusal. Either way, completion of DUI school is a condition precedent to obtaining a hardship license. If you select option (2), you must show proof of enrollment in DUI school before your request for review of eligibility will be considered. You should be aware that no hardship is available on an administrative suspension if you have refused a lawful test of your blood, breath, or urine two or more times. For more details, see the "Administrative Proceeding" section of our website.
In the event you resolve your St. Petersburg, Clearwater, Tampa DUI case by way of a negotiated plea, or you are found guilty by a jury, there will also be a court imposed suspension. For a first DUI offense, the court will typically suspend your license for 6 months but you will be immediately hardship eligible. Here again, however, you must complete DUI School as a condition precedent to obtaining a hardship license on the court imposed suspension (there will be other requirements as well, such as undergoing an alcohol evaluation, enrolling in treatment (if recommended), and installing an ignition interlock device in your car if your breath or blood alcohol level was at or above .15). You should be aware that the provisions for a hardship license for a second or subsequent DUI are limited. An experienced St. Petersburg DUI lawyer can explain this in greater detail. For more information, see the "Criminal Proceeding" section of our website.
Often times, I am asked by a client whether enrolling in DUI school before going to court will be construed by either the judge or the prosecutor as an admission of guilt. The answer is no. Even if you enroll in DUI school, you can always take your case to trial (if you choose) and evidence of your pro-active approach to DUI school to avoid the potential for adverse action on your driving privilege would not be admissible. The judge is not going to "check" this prior to the entry of your plea or the commencement of your trial and neither will the prosecutor. As a former Pinellas County DUI prosecutor, this not something I ever did.
Will I be required to complete alcohol treatment?
As part of your DUI School requirement, you will be required to undergo an alcohol evaluation. The evaluator will make a determination as to whether you will need to undergo alcohol counseling or treatment. If you were arrested for a DUI in Pinellas County (St. Petersburg, Clearwater, or a surrounding area) you will undergo the evaluation with the Suncoast Safety Council. If you were arrested for DUI in Hillsborough County (Tampa, Plant City or a surrounding area), you will undergo the evaluation with DUI Counterattack.
The evaluators are somewhat guarded about what will trigger a treatment requirement. Having practiced DUI defense in St. Petersburg for a number of years, I have noticed that my clients have been required to complete treatment in any one of the following four situations: (1) there is a blood or breath test result at or in excess of .15; (2) you have a prior DUI or drug related offense; (3) you have been arrested for a criminal offense in the past where drug or alcohol played a role (such as disorderly intoxication); or (4) you acknowledge that you have suffered adverse consequences in the past due to drug or alcohol use, yet you continued to drink and/or use. If this is your first DUI with a breath or blood test below a .15 (including a refusal) and there are no drug or alcohol related crimes (or other substance abuse issues) in your past, there is a fair likelihood that you will not be required to undergo treatment. The advantage is that you will not be required to pay for treatment and you will be in a position to resolve your case much sooner than you would be otherwise.
If treatment is recommended, you can expect to attend once a week for between twelve and sixteen weeks. You will be given a list of treatment providers in Pinellas or Hillsborough counties (as appropriate) and you will required to pick one. For my Pinellas county clients who have a felony drug charge along with the DUI, where both are pending in drug court, I will have them treat with Solutions Behavioral Health Care Consultants to take care of that requirement as to both charges.
You must complete treatment before your period of supervision can terminate. Failure to complete treatment, where it is required, will result in a probation violation and may also result in your driver's license being suspended or hardship privilege being revoked.
Am I going to Jail?
DUI is an enhanceable crime in Florida, which means the more prior DUI convictions you have, the more punitive the sanctions become. Some states have limited "look back" periods where, for example, if your prior was less than five years ago, your pending offense will be construed as a second time DUI but if the prior was more than five years ago, your pending offense will be construed as a first time DUI. Florida has no limitation on its look back period. Here, DUI offenses are divided into six broad categories for determining the applicable recidivist penalties, as follows:
- Second DUI within 5 years;
- Second DUI outside of 5years;
- Third DUI within 10 years;
- Third DUI outside of 10 years;
- Fourth or more in a lifetime.
The measuring period is conviction to offense. While Florida law allows for a jail term on any DUI offense, including a first, it is only mandatory if this is your second offense within five years or your third offense within ten years. In the former situation, the mandatory period of jail time is ten days; in the latter situation, the mandatory period of jail time is thirty days. You should also be aware that a third DUI within ten years can be prosecuted as a felony and a fourth DUI in a lifetime is prosecuted as a felony. In felony cases, Florida's sentencing guidelines apply. If you score mandatory prison, then the court must sentence you to prison, unless a viable guideline departure basis exists. For more information on this, see the "Sentencing" section of our website.
If this is a first time DUI offense in Pinellas or Hillsborough County, it is extremely unlikely that you will be required to serve jail time if your case is resolved by way of a plea. This is particularly the case where you come to court with most or all of your conditions completed, including DUI School, the alcohol evaluation, treatment (if required), community service hours, etc. (for more information on what is required, see the "DUI Penalties" section of our website). If you go to trial and are found guilty, the state will, in all likelihood, ask the judge to impose a jail term (whether it is required by law or not) and in many instances, the judge will do so.
If you are charged with a misdemeanor DUI where the statute requires a jail term (e.g. second offense within five years or third within ten years), the court has the authority to allow you to serve that time in a licensed substance abuse treatment facility. As a St. Petersburg DUI lawyer, I always have this worked out a head of time (in terms of acceptance into the facility, payment arrangements with the provider, etc.) and present my argument to the court at the time of the plea as to why I believe my client should be permitted to undergo residential treatment versus jail time. Unless there is something particularly aggravating about the case, I think it is unlikely that the court will not grant the request. Keep in mind though that it must be a residential treatment facility. Half-way houses and sober living facilities that allow you to come and go throughout the day probably will not cut it.
Another option may be to ask the state to amend the charge to either a lesser level of DUI (where jail time is not mandatory) or to a reckless driving. For example, in a recent case, my client was charged with a second DUI offense within five years and was facing a mandatory period of ten days in jail. The client had some bona fide medical issues with symptoms that mimicked impairment. After obtaining the his medical records and writing a detailed letter to the prosecutor, the charge was ultimately amended to a reckless driving and my client did not spend any time in jail. Please know that result does not happen in every case. Given the unique mitigating circumstances presented, however, it became an option for this particular individual. I have included the example to illustrate for you another potential avenue for avoiding jail time in a DUI case where it is otherwise required.
There are going to be cases where either the judge, the state, or both will not agree to a non-incarcerative sentence. Once again, it is very rare indeed that this will be the situation for a first time DUI offender; it usually occurs where the person has multiple priors. In a recent Pasco County DUI case, my client was charged with DUI and had two prior convictions from well over ten years ago. Because the offenses were outside of five (and also ten) years, jail time was not required. Regardless, the state was seeking 180 days in jail and the judge would not agree to anything less. For a criminal defense attorney, this is never a comfortable situation to be be in and for the client it can be devastating. Here, the state had some proof problems related to the issue of impairment. Given the issues, and the lengthy period of jail time that was being offered, we decided to go to trial. After a short period of deliberations, the client was found not guilty and walked out of the court house at my side, a free woman.
To minimize the chance of an incarcerative component, particularly where this is not your first offense, you should seriously consider hiring an experienced St. Petersburg DUI attorney. For additional reading on what a criminal defense lawyer can do to help you through your case, see our prior blog post entitled "Do I Need a St. Petersburg Criminal Defense Attorney?"
Will I have to have an ignition interlock device installed in my car?
Unless this is your first DUI conviction and you either (1) blew below a 0.15; (2) you refused a chemical test of your blood, breath or urine; or (3) your DUI involved drugs, you will be required to have the ignition interlock device installed in your car. The device measures your breath alcohol and will not allow the vehicle to start if you are over a 0.02. Most devices also have a camera to verify that it is in fact you that is blowing into the device.
The periods within which the device must be installed are a s follows:
- First DUI w/ BAC below .15: No interlock requirement.
- First DUI w/ BAC .15 or higher (or with person less than 18 years of age in the vehicle): 6 months.
- Second DUI within 5 years w/ BAC below .15: 1 year.
- Second DUI within 5 years w/ BAC .15 or higher: 2 years.
- Second DUI outside 5 years w/ BAC below / .15: 1 year.
- Second DUI outside 5 years w/ BAC .15 or higher (or with person less than 18 years of age in the vehicle: 2 years.
- Third DUI within 10 years w/ BAC below .15: 2 years.
- Third DUI within 10 years w/ BAC .15 or higher: 2 years.
- Third DUI outside of 10 years w/ BAC below .15: 2 years.
- Third DUI outside of 10 years w/ BAC .15 or higher: 2 years.
- Fourth DUI: 2 years.
If your case is resolved in county court (either Pinellas or Hillsborough), the court is limited to 12 months of probation. For some misdemeanor offenses, the ignition interlock requirement can be two years. Therefore, the court will order the device installed, but will not make it a specific condition of probation (you cannot fit a two year requirement into a year). Regardless, the department of motor vehicles will not authorize a permit following the conviction (assuming you are otherwise eligible) or allow you to fully reinstate your driving privilege once the period of suspension expires unless the device has been installed. Even if the court does not order it (which can happen due to oversight), DMV will still require it.
There is one exception to the first time DUI case, with a BAC level below a .15, that you should be aware of: Hillsborough County's newly implemented RIDR program (see above). If you qualify for the program, and elect to participate, you will be required to install an ignition interlock device in your vehicle for three months if your BAC was below a .15 six months if you refused. It appears, however, that you may substitute that requirement with a continuous alcohol monitoring device (e.g. a SCRAM monitor) for the same period of time. Once again, this program is not currently available in Pinellas and Pasco counties.
The device has to be installed in a car you own. For those that don't have a vehicle, getting a hardship license or reinstating your driving privilege could be delayed. You should also be aware that you will be required to operate only your vehicle. There are some exceptions for certain types of work vehicles (like a Coca-Cola truck for example) which the court must approve at the time of sentencing. More specific questions about the ignition interlock device should be directed to an experienced St. Petersburg DUI attorney.
I blew just above 0.08. Can my charge be reduced?
Possibly. In the state of Florida, it is illegal to drive with a blood or breath alcohol level at, or in excess of, 0.08. Just because a person was above a 0.08 at the time he or she blew into the intoxilyzer does not mean that he or she was above a 0.08 at the time of driving. Often times, there will be anywhere from an hour to two hours between the time of the traffic stop and the time the person is asked to submit breath samples. Following the traffic stop, the officer will ask you a series of preliminary questions. If the officer suspects impairment, based on odor of alcohol, bloodshot, watery eyes, slurred speech, etc., the officer will ask you to step from the vehicle to perform roadside sobriety tests. These tests are comprised of the walk and turn and one leg stand at a minimum, and may also include the Rhomberg alphabet tests and the finger to nose test. They take time to demonstrate and complete. If you are arrested (and you probably will be as these tests seem to be designed for failure), the officer will read you your Miranda warnings and ask you a series of more detailed questions. From there, you will be transported to the jail. You may be asked to perform field sobriety tests again. If you agree to submit to a breath test, the officer is required to observe you for a full twenty minutes prior to the submission of your first breath sample. This is to ensure that you don't burp or regurgitate. If so, the accuracy of the breath test result will be compromised as the machine will be reading mouth alcohol as opposed to deep lung air.
While all of this is taking place, your body is continuing to absorb the alcohol you have consumed. Depending on a number of factors, your breath/blood alcohol may have been less than a 0.08 at the time of driving even though it exceeded a 0.08 at the time of driving. These factors include: (1) what time you consumed your first drink; (2) what time you consumed your last drink; (3) what you drank; (4) how much you drank; (5) what you ate; (6) your gender, height, and weight. With this information, a "retrograde extrapolation" can be performed (either by a toxicologist or through less sophisticated means). Where it can be shown that you were not at or above the legal limit and the time of driving, the state may be inclined to reduce the charge. In making this assessment, the prosecutor will look to other evidence in the case (the basis for the stop, your performance on field sobriety tests, how you treated the officer, and whether you have any priors). As a former Pinellas county state prosecutor and St. Petersburg DUI defense attorney, I can tell you that you are not likely to get the benefit of the doubt if you were belligerent during the investigation or you have prior DUI charges.
You should also be aware that in Florida, a breath or blood test at or in excess will result in some enhanced penalties. For the first time DUI offender, it will mean the difference between having to have an ignition interlock device installed in your vehicle or not. For those cases with a blood or breath alcohol level in excess of .15, the fine amount is increased significantly. The same retrograde extrapolation process can also be used to show that the accused person was below a .15 at the time of driving even though he or she was at or above that level at the time samples were submitted. An experienced St. Petersburg DUI lawyer can provide additional information on retrograde extrapolations and whether it may be a viable defense in your Tampa Bay area DUI case.
Can the state reduce a DUI to a reckless driving where there is a blood or breath test above a .15?
No. Florida statutes section 316.656(2)(a) provides that no judge may accept a plea of guilty to a lesser offense from a person charged under the provisions of of this act who has been given a breath or blood test to determine blood or breath alcohol content, the results of which show a blood or breath alcohol content by weight of 0.15 percent or more. If there is there is a problem with the machine that calls into question the accuracy of the results, the accused person may want to consider taking the case to trial. If both sides (state and defense) decide that a negotiated plea to a lesser charge is in the best interests of both, the options are limited. The only work around I can think of would be to have the state nolle prosse the DUI and refile the charge as a reckless driving.
Can I do community service in lieu of paying the fines amount?
Yes. The fines associated with a DUI charge are steep. The amounts get progressively higher based on your number of prior convictions and whether you had a breath or blood alcohol level at or above a .15 (if so the fine is increased). The court will allow you to do community service in lieu of the fine at a rate of $8.10 per hour. If my client tells me that it is his or her intent to do community service in lieu of paying the fine, I will have the court expressly authorize this on the record at the time the plea is entered and ensure that it is reflected on the probation transmittal form (I think its just good practice). I will also advise the client to make sure that he or she does the hours at a 501(c)(3) non-profit organization. If the community service hours are to be performed prior to the plea, I will usually call probation ahead of time to be sure that (1) pre-plea hours will be honored; and (2) the place the client is to perform the hours will be recognized as legitimate. If the hours are to be performed post plea, I will impress upon the client that he or she confirm with his or her probation officer that the community service provider will be recognized (lest the client have to start again). I have a sheet that lists many community services providers throughout Clearwater and St. Petersburg which I hand to my DUI clients, but it always best, I find, to verify anyway.
You should be aware that under Florida law, fifty hours of community service is required for a first time DUI offense. If this is your first DUI, the initial fifty hours will not be credited toward the fine amount (only those hours completed over an above first fifty can be applied).
How long will I be on probation?
Perhaps a day or less. If you were arrested for a misdemeanor DUI, your charge will be filed in South County Traffic Court (if the offense occurred in the St. Petersburg area) or North County Traffic Court (if the offense occurred in Clearwater). If your case is pending in either court division, the judge will usually allow your probation to terminate immediately upon the successful completion of all conditions. As a St. Petersburg DUI lawyer, I have my clients complete all conditions of their sentence prior to the entry of a plea (unless, of course, the client would prefer to go to trial). If all requirements are complete, and the client can pay the fines and costs, the judge will order that probation terminate at intake. This is of tremendous benefit to a person as he or she will not have to pay the cost of supervision for a year and will not be in danger of having to deal with a probation violation for non-compliance).
If you demand a jury trial as part of your initial pleadings, your case will be transferred from county traffic court to the criminal justice center on 49th Street in Clearwater. There, in most instances, you will be requited to complete at least half or your court ordered term of probation. For a misdemeanor offense, the court cannot place you on probation for more than a year, so your minimum term (assuming you have completed all conditions and satisfied all outstanding financial obligations) will be six months. In Hillsborough County, my experience has been that most judges will allow an immediate termination of probation upon completion, like Pinellas' two satellite traffic court divisions.
Felonies are different. For most felony DUI charges, the court can impose up to five years of probation (or longer, in some instances). While your probation can still terminate early, you will almost always be requited to complete half the term. Most (if not all) felony court judges will require you to file a written motion and set a hearing before they will consider terminating your supervision (automatic terminations at the halfway point for a felony DUI are atypical).
Will probation inform my employer of my DUI arrest?
Maintaining lawful employment is a standard condition of probation (unless you are a full time student). As such, your probation officer will need to verify your employment status. Most times, this will entail placing a phone call to your employer. For some, this could result in the loss of employment for obvious reasons.
This is just another reason why you would want to complete all conditions of probation prior to going to court if your case is pending in Pinellas County traffic court. If you are not on supervision for more than a day, it is unlikely that the probation officer will verify employment. If you are going to be on probation for some time, there may be another way around it. For my clients who are in this situation, I will usually prepare an order for the judge to sign at the time of sentencing indicating that the client can verify his or her employment with probation by providing paycheck stubs. Most judges are receptive to allowing this. The only time you are sure to have an issue if the charge itself involved theft from an employer.
I live out of state. Now what?
At time of your arrest, the officer will take your driver's license and advise you that you have ten days to either request a formal review hearing or waive the hearing and request a review of eligibility for a hardship license. The officer will also tell you that your failure to do within ten days will result in your driver's license being suspended. For more information on this, see the Administrative Proceeding section of our website. You should know that the administrative suspension will not follow you home. I have never had a case where it did. In these instances, I don't take any action on the administrative suspension, and I advise my clients to obtain another license upon returning home.
As far as the criminal case is concerned, the associated driver's license suspension will, in all likelihood, be transmitted to your home state, which will result in your license being suspended there as well. Thus, you will have to satisfy the conditions for reinstatement in both states to clear the suspension. The good news is that most DUI schools and treatment providers that are recognized in your home state will also be recognized by Florida. You may be able to secure a hardship license in your home state. I usually suggest to my clients that they consider hiring an attorney in their home state (by the hour) to help ensure that they are not without a license or hardship any longer than is absolutely necessary.
I will also have my out of state clients sign what is called a waiver of appearance at pre-trial hearings so that they do not need to return to Florida to attend scheduled court dates (I go on their behalf). If you are facing a misdemeanor DUI charge, the rules of criminal procedure allow you to resolve your case by way of what is called a "plea in absentia". Here, I send my client's a document that outlines the sentence, and their rights with a fingerprint form. The client sends the form back to me (having signed it in the presence of a notary), along with the fingerprint card (with prints rolled), and a check payable to the clerk of court to cover the fines and costs. By filing this with clerk following the plea hearing, the client does not need to return to Florida to resolve the case. Probation may be terminated on intake if all conditions are complete and the matter is pending in Pinellas County traffic court (which requires a brief phone interview). Where the client is required to do probation, the court will usually authorize the out of state resident person to report by mail.
If you have been charged with a felony DUI, you will have to return to Florida to enter a plea (pleas in absentia are not allowed in felony cases). On the right set of facts, the state may amend the charge from a felony to a misdemeanor offense which would then allow for the P.I.A. In most instances where this , the prosecutor will amend the charge orally, at the plea hearing, just prior to the executed plea in absentia and fingerprint card being tendered to the court.
As a St. Petersburg criminal defense attorney, I have handled countless out of state client cases, DUI and otherwise. If you have been arrested Out of state cases are a bit more complicated, but they are certainly doable.
Can my DUI charge be expunged?
Possibly. Under Florida law, you cannot seal or expunge a charge if you were adjudicated guilty of that offense or you have a prior adjudication of guilt (i.e. an unrelated prior offense). In DUI cases, the court must adjudicate you guilty if you enter a plea of guilty or no contest, or you are found guilty after trial. If however, you are found not guilty after trial (either by a judge or jury), you can expunge the DUI arrest if you have no other criminal convictions (anywhere, any time, or any place). The same applies in instances where your DUI charge is "nolle prossed" by the state. This is rare, but given the right set of facts, it is not beyond the realm of possibility. Here again, however, you cannot have any other criminal convictions to expunge the DUI arrest. In other instances, the state may agree to amend the charge to reckless driving, and agree to a withhold of adjudication. This may also for the arrest record to be sealed. For more information, see the Sealing and Expunging section of our website. The expungement process can be complicated. An experienced St. Petersburg criminal defense attorney can answer more specific questions about your cases(s) and whether you qualify.
I received a letter from the State indicating that they will seek a subpoena for my medical records. What is this and what are my options?
This is typically referred to as a "10 day letter". If you've received a "10 day letter" from the state attorney's office, you were likely involved in a traffic accident and transported to a hospital or other medical facility for treatment. Law enforcement officers investigating the crash determined that you may be impaired based on their observations (e.g. bloodshot watery eyes, odor of alcohol, presence of open alcohol containers in the vehicle, slurred speech, etc.). Obviously, if you were taken to a hospital, the administration of a breath test is not going to be feasible. Law enforcement may or may not have asked you for a blood sample to determine the the presence of alcohol or controlled substances in your system. If they didn't, or if you denied their request, they will not have what is called "legal blood". Legal blood is obtained for the purpose of prosecution. In the absence of legal blood, the state will attempt to secure "medical blood" to prove that you were DUI at the time of the crash. Medical blood is taken by hospital staff for the purposes of diagnosis and treatment but can be obtained by the state and used to help make its case against you.
A person has a heightened expectation of privacy in his or her medical records as they will divulge contents found below the surface of the body. Before the state can issue a subpoena to the hospital for the purpose of obtaining your medical records, they are required by law to notice you, or your St. Petersburg criminal defense lawyer, of their intent to do so. The letter you received will state that you have 10 days to object, lest the subpoena be served and the records obtained.
When a client of mine receives a 10 day letter, I always file an objection, and send it to the assigned prosecutor via certified mail with return receipt requested. If, for some reason, the subpoena was served before the 10 day period (and before the objection was received), there may be a basis to have the records excluded or suppressed. In these situations, the blood test results are often the linchpin of the state's case and without them, it could be very difficult for the state to proceed with prosecution. The state may be afforded a second opportunity (by the court) to obtain your records where the first attempt violated the notice requirement. To get a second bite at the apple, the state will have to demonstrate that they did not act in bad faith in issuing the initial subpoena without first serving notice. An example may be where they were unable to locate the defendant despite a bona fide, diligent search.
Where an objection is made by the accused person (or his or her criminal defense attorney), the state will set the matter for a hearing. At that hearing, the court will make a determination as to whether the records are relevant to a criminal investigation. This is a very low burden for the state to meet (far less stringent than the "probable cause" standard that would be required for the issuance of a search warrant). The officer that conducted the DUI investigation will be at the hearing to testify as to his or her or her observations. Sometimes, the lack of observation of impairment can result in the subpoena request being denied. If the person was taken to a hospital, he or she would not have performed field sobriety exercises or even been asked to do them (so there would be no inference of impairment based on a refusal to do so). Evaluating a person's dexterity after a crash is difficult. Sometimes the person may be unconscious so the officer may not be in a position to observe certain "classic" signs of impairment such as blood shot watery eyes, or slurred speech. With regard to slurred speech, the same can also be said where the accused is conscious, but refuses to answer any questions. Odor of alcohol alone is probably not sufficient to establish relevance for the purpose of authorizing a medical blood subpoena.
In other instances, there may not be a witness who can place the defendant behind the wheel, and he or she may not have admitted to driving. If it cannot be established that the defendant was the driver, his or her level of impairment is not relevant and it is on this basis as well that the state's request to issue a subpoena for medical records could be denied by the court.
As a St. Petersburg DUI attorney, I make every conceivable effort to prevent a medical blood subpoena from issuing but, because of the low burden on the state in these instances, it usually does. This does not mean, however, that all is lost. There are a number of ways a DUI case can be effectively defended, at every stage of the prosecution, and this is but one. Even though the odds of prevailing on this particular issue are typically not in favor of the accused, the effort should always be made regardless.
What is an FR 44?
An FR 44 is a financial responsibility insurance certificate that is forwarded by your insurance company to the Department of Motor Vehicles proving that you have certain liability coverage minimums. It was introduced in the State of Florida in February of 2008. FR 44 insurance is required for three years following a DUI conviction. The driver must have coverage of $100,000.00 for bodily/death of one person; coverage of $300,000.00 for bodily injury/death of two or more persons; and coverage of $50,000.00 for property damage. Unfortunately, obtaining FR 44 insurance following a DUI conviction is a pre-requisite to license reinstatement. It is not cheap. You can expect to see your premiums increase significantly as your carrier will consider you to be a high risk driver based on the conviction.
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