Getting arrested for Driving Under the Influence (DUI) can bring on difficult times, but with an experienced legal team on your side it can help mitigate some of your anxieties and fears. Our Orlando-based criminal defense firm has represented numerous DUI clients with the odds seemingly stacked against them and have received incredible results. We’re able to do this because we attack the case from all angles, poking holes in what seems like a strong set of facts. Additionally, if you allow our firm to represent you, you’re not just treated like another client—you’re treated like family. We can’t say the same for other firms that promise you the moon, and then ultimately don’t deliver. At Schisani Law Firm your mind can be put at ease knowing that you’re in good hands and that we will do everything we can to aggressively fight your DUI to get a favorable result.
Below are some commonly asked questions regarding Driving Under the Influence (DUI):
What must the State prove to get a conviction for Driving Under the Influence?
The State must prove two independent elements beyond a reasonable doubt to sustain a conviction: (1) The defendant drove or was in actual physical control of a vehicle; and (2) While driving or in actual physical control of the vehicle, the defendant was under the influence of alcohol or drugs to the extent that his or her normal faculties were impaired.
Diving into the first element of the crime, the State must prove that the accused drove a vehicle, which is defined as “every devise, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.” Simply put, that you were driving a car, truck, semi-truck, van, motorcycle, etc. on a roadway. Alternatively, the first element can be satisfied just by the person being in “actual physical control” of a vehicle, meaning that the person doesn’t even need to be driving. It’s enough to satisfy this element by the person being in or on the vehicle and simply having the capability to operate the vehicle. For example, even if your keys are not in the ignition and you are parked in a parking spot, you are still considered to be in actual physical control of your vehicle, and thus, satisfy the first element of the crime.
Moving on to the second element, it’s a common misconception that having a few drinks and getting behind the wheel makes a person guilty of DUI—which is far from the truth. The State must prove that the person was under the influence of alcohol or drugs to the extent that their normal faculties were impaired, or in the alternative, that the defendant had a blood-alcohol level of 0.08 or more. Normal faculties include, but are not limited to, a person’s 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.” Therefore, just because an officer smells the impurities of alcohol on your breath doesn’t make you guilty of this crime without more. This is why it’s imperative you do your due diligence in hiring an experienced defense firm who will ensure that your constitutional rights weren’t violated.
What are the penalties for a DUI in Florida?
Florida has some of the toughest laws for Driving Under the Influence (DUI) compared to the majority of other states. Under Florida Statute 316.193, a 1st time DUI carries a minimum mandatory adjudication, six-month driver license revocation, six months of supervised probation, DUI Level 1 school, $500 fine, and 50 hours of community service. Depending on the unique facts of your case you could face up to 6 months in jail, 12 months of supervised probation, 12-month driver license revocation, $1,000 fine, among other penalties. The penalties get even more egregious if you blow over a 0.15 or if you have a minor in the vehicle. Under these circumstances you could face up to nine months in jail, up to a $2,000 fine, ignition interlock for six continuous months, among other ramifications. As you can see, receiving a DUI in Florida is not something to mess around with, which is why you need an experience legal team by your side to ensure you receive the best outcome in your case.
DUI—DRIVING UNDER THE INFLUENCE PENALTY CHART
| Florida Statute 316.193
Mandatory adjudication |
316.193(6)(a) 1st time DUI | 316.193(6)(b) 2nd w/in 5 years | 2nd DUI Outside 5 years | 316.193(6)(c) 3rd w/in 10 years | 3rd O/S 10 years | 316.193(3)(b) 4th DUI |
| JAIL | 0- 180 days | 10- 270 days | 0- 270 days | 30 days- 5 yrs. FSP (L3) | 0- 364 days | Up to 5 yrs. FSP (L6) |
| Enhanced | 0- 270 days | 10- 364 days | 0-364 days | 30 days- 5 yrs. FSP | 0- 364 days | Up to 5 yrs. FSP (L6) |
| Crash | 0- 364 days | 10- 364 days | 0- 364 days | 30 days- 5 yrs. FSP | 0- 364 days | Up to 5 yrs. FSP (L6) |
| PROBATION | 6- 12 months | 6- 12 months | 6- 12 months | 6- 12 months | ||
| FELONY | Up to 5 yrs. | Up to 5 yrs. | ||||
| DL REVOCATION | 6- 12 months | 5 years | 6- 12 months | 10 years | 6- 12 months | Permanent |
| FINE | $500- $1,000 | $1,000- $2,000 | $1,000- $2,000 | $2,000- $5,000 | $2,000- $5,000 | No less than $2,000+ |
| Enhanced | $1,000- $2,000 | $2,000- $4,000 | $2,000- $4,000 | No less than $4,000+ | No less than $4,000+ | No less than $4,000+ |
| Felony | No less than $4,000+ | No less than $4,000+ | ||||
| COMMUNITY SERVICE | 50 hours | N/A | N/A | N/A | N/A | N/A |
| DUI SCHOOL | Level 1 | Level 2 | Level 2 | Level 2 | Level 2 | Level 2 |
| VEHICLE IMMOBILIZATION (NOT DURING JAIL) | 10 days of vehicle Def owns or operates. | 30 days of all D’s vehicles. | 10 days of all D’s vehicles. | 90 days of all D’s vehicles. | 10 days of all D’s vehicles. | 90 days of all D’s vehicles. |
| INTERLOCK | N/A | 1 yr. min. | 1 yr. min. | 2 yr. min. | 2 yr. min. | 2 yr. min. |
| Enhanced | 6 continuous months min. | 2 yr. min. | 2 yr. min. | 2 yr. min. | 2 yr. min. | 2 yr. min. |
| COST OF PROSECUTION | $50 | $50 | $50 | $100 | $50 | $100 |
| COURT COSTS | Mandatory | Mandatory | Mandatory | Mandatory | Mandatory | Mandatory |
| NO ALCOHOL | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. |
| VICTIM AWARENESS PROGRAM | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. |
| RANDOM DRUG AND ALCOHOL TESTING AT THE DEF’S EXPENSE | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. |
| COST OF INVESTIGATION | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. | Not statutorily required. |
What are field sobriety exercises (FSEs)?
The standard field sobriety test is a series of three exercises: (1) Horizontal Gaze Nystagmus; (2) Walk and Turn; and (3) One-Leg Stand. These exercises are theoretically designed to catch impaired drivers by testing a person’s cognitive and physical abilities—how a person is able to process data and physically perform. Field sobriety exercises are legal; however, a person is not required by law to perform them and there are no ramifications if you elect not to participate.
The Horizontal Gaze Nystagmus (HGN) exercise, commonly referred to as the “follow the pen test,” is supposed to uncover if you have an involuntary jerking of the eye, which in theory is supposed to illustrate that a person is under the influence of alcohol or other drugs. However, certain other substances—nicotine, aspirin, caffeine—can cause the same effect. Further, being tired can also cause nystagmus. During the HGN test, the law enforcement officer instructs the person to put their hands by their sides, keeping their feet together, and to keep their head still while the officer moves the stimulus 12 inches from the person’s nose, slightly above the person’s eyes. The officer moves the stimulus during 14 or more passes in front the person’s eyes and looks to find this involuntary jerking of the eyes. Once the aforementioned is completed, impairment is determined based off of clues of nystagmus at maximum deviation, the onset of nystagmus prior to 45 degrees, or a lack of smooth pursuit.
Under the law, Horizontal Gaze Nystagmus testing is considered scientific evidence—unlike the Walk-and Turn and One-Leg Stand tests—for which there is danger of unfair prejudice and confusion to jury if admitted as lay observations of intoxication in DUI prosecution. Therefore, only an officer that is recognized as a drug recognition expert can testify at trial as to the scientific results of this test. This is important to note because it will determine if more evidence comes in at trial to prove guilt.
Another exercise a suspected impaired driver will be asked to perform is a divided attention test called the Walk-And-Turn. This exercise begins before the person even physically performs the actual walk. The officer is looking for clues of impairment at the instructional phase to see if the person is swaying, unbalanced, or even if the person starts the exercise before the instructions are finished. During the Walk and Turn test, the person is asked to take nine steps—heel-to-toe—along a straight line. After taking nine steps forward, the person must turn on one foot and proceed in the same manner in the other direction. Additionally, the person may be asked to count the steps out loud.
During the entirety of this test the officer is looking for eight clues of impairment. Specifically: (1) if the person is unbalanced during the instructional phase; (2) starting the exercise before the instructions are finished; (3) taking an incorrect number of steps; (4) using arms for balance; (5) failing to touch heel-to-toe; (6) stepping off the straight line; (7) improperly turning; and (8) stopping while walking to keep balance. Two or more of the abovementioned indicators reflect a blood alcohol content of 0.08 or greater, according to research, and are noted by the officer.
The last test that suspected impaired drivers are typically asked to perform is the One-Leg Stand exercise. This is another divided attention test. It requires the person performing the exercise to stand on one foot—approximately six inches off the ground—and to count out loud by thousands for 30 seconds. The person is also timed by the officer for 30 seconds. The officer is looking for the following indicators: (1) using arms from balance; (2) if the person puts their foot down; (3) hopping to maintain balance; and (4) swaying while balancing. The officer will note two or more clues of impairment, which research reflects a blood alcohol content of 0.08 or greater.
The officer will use the results of the field sobriety exercises to determine probable cause for a DUI arrest. An officer can’t arbitrarily ask a driver to perform FSEs without reasonable suspicion of Driving Under the Influence (DUI). Therefore, if an officer does and you perform FSEs, an experience attorney will know to file the appropriate motion—motion to suppress evidence—to aggressively defend your case.
Should I participate in the field sobriety exercises (FSEs) requested by the officer?
We wouldn’t recommend it. Chances are, if the officer is requesting that you perform FSEs, then you’re more than likely going to get arrested anyway. Furthermore, the test is flawed because it’s not objective and lacks scientific reliability—arguably, aside from the HGN test. An officer gets to subjectively determine if a person “fails,” based on the performance of an individual under subpar conditions—usually late at night, uneven road, cars passing by with their lights on, sometimes cold. When you factor in an individual’s anxieties, nerves, and being scared, how can you adequately perform under an officer’s subjective standards? Additionally, there is no Florida law that requires a person to perform a field sobriety test. Don’t give the State anymore evidence to use at trial.
But won’t that make me look guilty?
Not necessarily. There are many reasons why someone might not want to participate in the field sobriety exercises (FSEs). Maybe the person just received a hip or leg injury from a sport that might prevent them from performing up to standard—we strongly recommend letting the officer know that up front. Alternatively, maybe you have a nystagmus in your eye that would make the Horizontal Gaze Nystagmus (HGN) exercise obsolete. Maybe you have bad coordination or you’re naturally clumsy. Maybe you’ve had bad experiences with law enforcement in the past and you don’t feel comfortable interacting with them. As you can see, there are innumerable reasons why a person wouldn’t want to participate in arguably flawed exercises that even sober people have a difficult time “passing.” We recommend saying no to FSEs.
Should I submit to a breath test requested by the officer?
The answer to that question is—it depends. In Florida, driving is considered a privilege, not a right. Thus, if you get your driver license and drive in Florida, you are essentially agreeing that you will submit to a breath test if you are ever asked to do so. However, if you do refuse, the officer must inform you of the consequences of refusing the breath test. This means they must tell you that refusing could result in a one-year license suspension. They must also tell you that if you have a prior refusal, the subsequent refusal can impose misdemeanor charges, as well as a second license suspension (18-month suspension for a second and third offense). To answer this question, it ultimately comes down to how much you had to drink. Look at it this way—if you refuse to blow your license is going to get suspended; if you’ve been drinking a lot and you do blow, your license is going to get suspended anyway, and additionally, you’re giving the State even more evidence to use against you. It’s noteworthy to highlight that if you below over a 0.15 your DUI can be enhanced. Therefore, if you’ve been drinking a lot we wouldn’t recommend blowing.
I was just arrested for Driving Under the Influence. How can your firm help?
At Schisani Law, we understand that getting arrested for DUI can be a stressful—and even humiliating—experience, but rest assure there are numerous things our experienced law firm can do to get your charges reduced to a reckless driving or even completely dropped. We’re able to achieve such great results because our defense attorneys were former prosecutors and are cognizant of how the other side prosecutes cases. This is advantageous because it’s like knowing the other person’s hand before the “match” even begins. We’re able to bring our knowledge from the prosecution side of the law—over to the defense side—to strategically and methodically pick apart cases.
Our firm is well-known for finding common issues associated with DUI cases. When we find these issues, we file what’s called a “Motion to Suppress Evidence” and set a hearing on the motion to aggressively fight for your constitutional rights. A Motion to Suppress can prevent evidence from being used against you, making it more difficult for the State to prosecute—ultimately leading to a favorable result.
Below are some common issues we find with DUI cases:
1. Was the traffic stop legal?
a. Did the officer have probable cause of a traffic infraction to stop your vehicle?
E.g. speeding, running a stop sign, a defective taillight= probable cause to stop.
b. Did the officer have reasonable suspicion of DUI to stop?
2. After the stop, was the detainment lawful?
Generally, a person shouldn’t be detained for longer than is necessary for the officer to issue a traffic citation. In order to justify a longer detention, a law enforcement officer must have reasonable suspicion of a crime.
3. Did the officer have reasonable suspicion to request field sobriety exercises (FSEs)?
An officer must have reasonable suspicion of DUI to request and have you perform FSEs. If they don’t, then the FSEs should be suppressed and not used against you.
4. Did the officer have probable cause to arrest for DUI?
The officer can use the traffic stop, observations, admissions, results from the field sobriety exercises, etc. to determine probable cause to arrest you for DUI. They cannot arrest you for merely smelling the impurities of alcohol on your breath or by an admission to drinking.
5. Before submitting to a breath test, were you observed for 20 minutes?
Before taking a breath test the subject must be observed for a period of 20 minutes to make sure they don’t eat anything or regurgitate, thereby interfering with the breath results. This can lead to suppression of evidence.
6. Did the officer read you Miranda?
If you are no longer free to leave and the officer fails to read you your Miranda rights, and continues to ask you questions about events prior to the stop, any incriminating statements made to the officer may be suppressed.
7. Were you involved in an accident, accused of DUI and questioned?
Under Florida law, you’re required to report accidents. Therefore, Florida has what is called the Accident Report Privilege, which encourages witnesses to cooperate with officers in vehicle accident investigations—without having witnesses fear that they may make incriminating statements to authorities. Under Florida’s Accident Report Privilege, most statements given to law enforcement officers are excluded from being used in later trial. It’s noteworthy to point out that if an officer thinks you may be driving under the influence, he or she may “switch hats” and inform you that they have concluded their crash investigation, and are moving on to a criminal investigation associated with the vehicle accident. At this point, for further inquiry, the officer must read you your rights. Therefore, if the officer fails to “switch hats” and read you your rights, any incriminating statements you make may be suppressed under the Accident Report Privilege and excluded as evidence.
If you have any further questions or want to set up a free consultation, please e-mail the Schisani Law Firm at [email protected] or contact our office at (407) 853-2606.