Driving Under the Influence
An arrest for drunk driving can be rough and upsetting. In addition, if you are convicted, you face a possible jail sentence, loss of your driver’s license for at least 6 months, large fines, and other lingering consequences. In addition to criminal penalties, all DUI's are subject to administrative penalties from the Department of HighwaySafety and Motor Vehicles (DHSMV).
Once you have been arrested for DUI, you should contact Orlando and Kissimmee DUI Lawyer Don Waggoner as soon as possible so that he may begin the defense of your license and help protect your future. The loss of your driving privileges will affect your ability to get to and from work and to support your family. The sooner you contact me, the sooner I can evaluate your case.
316.193 - Driving under the influence; penalties.
316.1932 - Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal.
316.1933 - Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use reasonable force.
316.1934 - Presumption of impairment; testing methods.
316.1935 - Fleeing or attempting to elude a law enforcement officer; aggravated fleeing or eluding.
316.1936 - Possession of open containers of alcoholic beverages in vehicles prohibited; penalties.
316.1937 - Ignition interlock devices, requiring; unlawful acts.
316.1938 - Ignition interlock devices, certification; warning label.
316.1939 - Refusal to submit to testing; penalties.
#1 Question I am asked about DUI - If I am stopped and accused of DUI, should I blow into the breathalyzer if asked to do so?
Answer - You have to make that decision at the time. The law in Florida says that when you get your license, you agree to voluntarily take a breath test if asked to do so by law enforcement. Still, you cannot be forced and the choice is yours. If you are really wiped out and way over the limit, I'd say maybe not. If you are not sure or are positive you are not over the limit, I say take the breath test. You may blow under 0.08. The consequences are greater for your license if you do not take the breath test than if you do. Also, if it is your second time refusing, you can be charged with a 2nd degree misdemeanor and do up to 60 days in jail.
What about the stupid exercises or tests they want me to take?
Answer – You are not required to take the field sobriety exercises (FSEs). These exercises, or tests, are used by the cops to get probable cause to arrest you and give you a breath test. If you refuse to take them, all that happens is that the cop has to decide if he has enough to arrest you without them. If you refuse to do them, however, the cop will probably automatically arrest you. Some cops say that they sometimes let drivers go after doing the exercises. I don’t believe them. See more information about Field Sobriety Exercises below.
If you have a prior DUI conviction on your record and you are in custody for a second, third, fourth or subsequent DUI, the punishments are greatly increased. Third and fourth DUIs can be, and usually are, enhanced to a felony. The State of Florida does not want drunk drivers on its roads and prosecutors will work hard to make certain that you are disciplined and taken off the roads. If this is your case, then please contact Orlando and Kissimmee DUI Lawyer Don Waggoner immediately. With my assistance, you might be able to avoid the unduly harsh punishments that enhanced penalties carry.
Criminal DUI penalties can increase based on the frequency of DUI convictions and the severity of your current DUI offense. In addition to the criminal penalties for driving under the influence, you are also subject to administrative penalties by the Department of Highway Safety and Motor Vehicles, and to financial and personal collateral consequences. Below are DUI penalty charts for the most common DUI offenses.
DUI Penalty Chart!
The following information may not contain all possible penalties for DUI offenses. Because of the frequent legislative changes concerning DUI law, visitors are urged not to rely solely on these charts. The specific and most current DUI penalties may be found in Section 316.193, Florida Statutes. You should contact me concerning your particular case.
First Offense DUI Penalties
Second Offense Within Five Years of First DUI Conviction
Third DUI Within Ten Years of Prior Conviction– 3rd Degree Felony
Fourth or More DUI Charged as a Felony
GOOD NEWS! In the 9th Judicial Circuit (Osceola & Orange Counties), the State's Attorney's Office offers a Diversion program, whereby first time DUI offenders can avoid a conviction for DUI (but not the DMV administrative suspension). The requirements are essentially the same as the criminal penalties for a first time offender, but upon completion of the diversion program, the charges will be dismissed. Not every first offender will qualify, however. Call me for a consultation and I will explain the program to you.
DUI Driver's License Suspensions
If you are arrested for suspicion of DUI in the state of Florida, and you blow greater than 0.08 on the breathalyzer, or you refuse to take a breathalyzer, (or urine or blood test if requested) your privilege to drive will be suspended or revoked. There are two types of suspension:
- An administrative suspension known as a DHSMV Administrative Suspension, and
- A Criminal Suspension
IMPORTANT! - You have 10 days from the date of your arrest to appeal the DHSMV Administrative Suspension. During those 10 days, you may drive for Business Purposes Only with the ticket you received, until midnight on the 10th day from the date of your arrest. Keep the ticket with you.
DHSMV Administrative Suspension:
The first suspension you receive is an administrative suspension. It is provided for under the Florida Statutes (s. 322.2615) and the administrative rules. It is called administrative because the suspension or revocation is not handed out by a judge. It is governed under the rules the DHSMV promulgates and administered by a clerk. The suspension or revocation lasts 6- 18 months. It happens if
1. You refuse to submit to a breath, urine, or blood test; or
2. You submitted to a breath, urine, or blood test and your blood alcohol level (BAC/BAL) was found to be 0.08 or higher.
If your BAC/BAL was 0.08 or higher or you refused to submit to a BAC/BAL your driver’s license will be suspended for 6, 12, or 18 months from the date of your arrest. As noted above, if your license is suspended for either reason, your ticket acts as a 10 day driving permit that expires at midnight on the 10th day following your arrest.
Administrative Review Hearing
After your arrest, you have only 10 days to request an administrative review hearing. This request is filed with the DHSMV and is to contest the administrative license suspension and get your license back. If you fail to ask for the hearing within these 10 days, your license will be suspended for 6, 12, or 18 months, depending upon the circumstances of your suspension. It is important to contact me within these 10 days to set up this review.
Once you have requested the hearing, the DHSMV will issue you a temporary Business Purpose Only permit good for at least 7 days after the date of the hearing. The hearing will be set approximately 30 days after your arrest. If you win, you get your license back. If you lose the hearing, your license expires at midnight on the expiration date on the temporary permit.
Getting a Hardship License
If the hearing officer upholds your suspension, you may want to apply for a hardship license, also known as a Business Purpose Only (BPO) license. A BPO "is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on the job driving, driving for educational purposes, and driving for church or medical purposes." F.S. 322.272(c)1. You may also drive to court and to visit your lawyer for your DUI case. You cannot drive to the beach, a theme park, a movie, the mall, or other places that are not necessary for everyday life.
To get a BPO you must (1) enroll in the DUI School; (2) wait through the first 30 days of your suspension or, if you refused, 90 days; (3) show proof of enrollment in the DUI School and apply for the BPO at the DHSMV; (4) pay the fee for the license. On rare occasions, DHSMV will refuse to issue a BPO based upon a review of your record and an interview.
A Criminal Suspension is the second suspension you will receive if you are convicted of a DUI. This suspension is separate and independent from the Administrative Suspension. This suspension is imposed by a judge as a result of conviction and its length is based upon statutory requirements. The minimum suspension is 6 months. It begins on the date of your conviction. If you have a BPO in your possession, the judge will take it from you and you may not drive until you get another BPO. YOU MAY NOT DRIVE HOME FROM COURT!!
Although no waiting period will apply, and you will not have to redo the DUI School, you will have to go back to the DHSMV to get another BPO. You will have to pay another fee, but not as much as the first time. However, if you beat the DUI, your license will not be suspended a second time.
Hardship License Eligibility:
The rules governing getting a Hardship License are governed by F.S. 322.2617 and 322.271.
If your license was suspended for refusal to submit to a breath, urine, or blood test, you must wait 90 days (called a 90 day hard suspension) from the date your last temporary permit expired before a new one will be issued.
If you license was suspended because you had an unlawful BAC/BAL above 0.08, you must wait at least 30 days (30 day hard suspension) from the date your last temporary permit expired before a new one will be issued.
If your license was suspended as the result of a DUI accusation, you must enroll in the Department approved DUI course before a permit will be issued, and then you must complete that course within 90 days. You may also be required to place an interlock ignition device on your car before you can get the permit. There are other rules and requirements to fit the various reasons for suspension that can be found in F.S. 322.271.
Under 21 Years Old DUI
The State of Florida has a "zero tolerance" policy for any person under the age of twenty-one who is charged with driving under the influence of drugs or alcohol: the legal limit, instead of the usual 0.08% blood alcohol content, is 0.02%. That means that if you are a driver under the age of 21 in Florida, even one drink can put you over the legal limit. Especially in a state that is home to many large universities and colleges, as well as a popular Spring Break attraction, juvenile DUI charges are not uncommon, and they bring serious consequences.
Under 21 Years Old DUI: What It Means
A young person charged with DUI in Florida may be facing severe sanctions, including jail time or incarceration, probation, fines, court costs, community service hours, and the suspension of their driver’s license. Other consequences can be equally serious, including an increase in insurance premiums that can last for more than three years after conviction, and even limitation of future educational and employment opportunities. If you are under 21 and arrested for DUI, the officer will take your Florida driver’s license and issue you a temporary driving permit, if you are eligible. You will have only 10 days to request an administrative hearing with the Department of Highway Safety and Motor Vehicles if you wish to regain your driving privileges. The hearing is especially important, because it will help your attorney to begin building a defense for your later court date.
Under 21 Years Old DUI: Criminal Penalties
If you are under 21 and stopped for DUI in Florida, the arresting officer can request that you submit to a breath test, urine test, or blood test if he or she has reason to believe you may be impaired by alcohol or drugs. Because of the low legal limit for juvenile drivers, simply smelling alcohol on your breath after a DUI stop is often sufficient to prove probable cause for your traffic stop. If you do not request an administrative hearing or do not prevail at the hearing, the following suspension will take place for any person under the age of 21 who blew over the 0.02% legal limit: for a first under-21 DUI suspension, six months; for a second or subsequent under-21 DUI suspension, twelve months. If you refused to take the breath, blood or urine test, then the following suspension will occur unless you prevail at your administrative hearing: for a first under-21 DUI suspension, 12 months; for a second or subsequent under-21 DUI suspension, 18 months. If you did take the breath test and blew over 0.05%, you may face additional penalties, including suspension of your driver’s license until you complete a substance abuse evaluation and treatment course as part of the DUI school requirement.
Initial Police Contact
In Florida, DUI laws allow police officers to stop drivers only under certain circumstances, and if those circumstances are not present when a driver is stopped, even if that driver is intoxicated and charged with a DUI, then it’s very possible that those charges will not hold up in court
Initial Police Contact: What it Means
Before a law enforcement officer can pull you over, he or she must have a legally valid reason to do so. The officer may say he saw you straddling the center line, that you appeared to be intoxicated, that you were driving too slowly, stopping in traffic for no obvious reason, swerving, braking erratically, driving into opposing traffic, even showing a slow response to traffic signals. But the officer must also show that your driving affected other traffic. If you were crossing the center line, for example, but there was no other traffic coming toward you, that initial stop may be invalid according to Florida law. Even if you appear drunk when the officer pulls you over, the initial stop must have been made for a legally valid reason, such as endangering other drivers or violating traffic laws.
Initial Police Contact: Determining Whether the Initial Stop was Valid
A law enforcement officer may stop a vehicle only if the officer has reasonable suspicion or probable cause to do so. The burden of proof for reasonable suspicion is lower than the burden of proof for probable cause. In Florida, reasonable suspicion is a much debated standard, especially as it applies to DUI cases. If you were simply weaving in your own lane, that will most likely not be considered sufficient to be pulled over. In addition, if you were drifting into another lane, your actions must have had an impact on the surrounding traffic. Regardless of how many times you went over the center line or into another lane, if you did not impact any other vehicles, then your DUI stop may be shown to be inappropriate and your case can be dismissed. The reason for the dismissal is that all of the officer’s observations during his or her DUI investigation, including the breath test, were subsequent to the traffic stop; if the stop itself is unlawful, then none of the evidence, such as a breath test or appearing intoxicated, can be used against you in court. An attorney can file a motion to suppress the evidence before your trial date.
Initial Police Contact: Your Options in Kissimmee and Orlando, FL
Because the legitimacy of the initial traffic stop determines the outcome of your DUI case, you need to consult with an experienced DUI traffic stop attorney to explore your options. If you were arrested and charged with a DUI after an invalid stop, the charges against you may be dismissed. In any case, only an attorney will be able to examine the particulars of your case and guide you through its complexities.
If you or a loved one in the Kissimmee or Orlando, FL area is facing charges after initial police contact, call Don Waggoner, an experienced DUI lawyer in Kissimmee today. He will aggressively fight your charges and protect your rights from being violated.
Field Sobriety Exercises
When a law enforcement officers suspects a motorist of driving under the influence (DUI), the officer will request that the person perform a variety of field sobriety tests (FSTs). Field sobriety tests are considered voluntary in the State of Florida, which means that the motorist can choose not to consent to them. An important consideration to remember is that the great majority of motorists who do consent to taking the tests are then arrested for DUI.
Field Sobriety Exercises: If You Consent
If you consent to a field sobriety test, the officer will ask you to do one or more of the following: the horizontal gaze nystagmus (HGN) test, in which the officer asks you to follow the tip of a pen or finger while he or she moves it back and forth in front of you; the walk and turn (WAT), in which you will be instructed to take a series of heel-to-toe steps, stop, turn, and then take the same number of heel-to-toe steps in the opposite direction; the one-leg stand (OLS), in which you will be instructed to stand on one foot while holding the other foot off the ground, and counting out loud; and the finger-to-nose (FTN), in which you will be required to stand with your hands to your side and be instructed to touch the tip of either your left or right index finger to the tip of your nose and bring it back down to your side.
The Horizontal Gaze Nystagmus (HGN)
This is a medical test performed by an officer. The officer will ask you to stand straight with your arms at your side, hold your head straight, and look directly at the officer without blinking. The officer will take her finger, pen, or pen-light, hold it directly in front of your eyes and slightly above. The officer will then ask you to follow the instrument with your eyes only, do not move your head, as she moves the instrument back and forth horizontally in front of your eyes. The officer is looking to determine whether your eyes move from side to side in a smooth manner or whether they begin to jerk. The officer will notice at what point the eyes begin to jerk, if they do so. Jerking at a certain point is alleged to indicate the presence of alcohol in the body. The officer may also move the instrument up and down vertically. Jerking at this time is alleged to indicate the presence of drugs in the body.
The Walk and Turn (WAT)
This is an exercise that is used to determine your ability to follow instructions, maintain your balance, and divide your attention. You will be told to stand before a straight line. You will be instructed not to start until told to do so. The officer will tell you to stand straight, hands by your side. The officer will tell to place one foot on the line and place the other foot in front of it with the heel touching the toe. This can be done with or without shoes. People wearing shoes that are difficult to walk in, such as high heels, should take them off. The officer will then instruct you to stand in that position while she demonstrates the exercise. The officer will tell you that you are to take nine (9) steps down the line, counting each step out loud, keeping your arms to your side. When you get to the end, you are to turn around, using tiny steps to turn, and take nine steps back, counting each step and keeping your arms at your side. The officer will be looking to see if you follow instructions, start before being told to do so, step off the line, keep your hands to your sides, do not touch hell to toe on each step, whether you take the instructed number of steps, count out loud, and turn properly.
One Leg Stand (OLS)
This is an exercise designed to test your balance, whether you follow instructions, and divide your attention. You will be asked to stand straight, with your arms at your sides. You will be instructed not to start until told to do so. The officer will tell you to stand with one foot in the air, approximately six (6) inches off the ground, toe pointed out, and hands by your sides. You will be told to look at your foot and count by 1000 (1001, 1002, etc.) until the officer tells you to stop. You are not to put your foot down or use your arms for balance until told to do so. If you do put your foot down, you are to pick it back up and continue counting. The officer will be looking to see if you follow instructions, do not start until told to do so, maintain your balance, do not use your arms for balance, and whether you put your foot down before being told to do so.
Finger to Nose (FTN)
This is an exercise designed to test your ability to follow instructions, divide your attention, test your balance, and test your coordination. You will be asked to stand straight with your hands to your side, index fingers pointed down. You will be told to hold your head back and close your eyes. You will then be told to take either the right or the left index finger and touch the tip of the finger (not the pad) to the tip of the nose, and bring your hand straight back down to your side without being told to do so. The progression will be L-R-L-R-R-L. The officer will try to fool you by having you touch the same finger twice in a row. The Officer will be looking to see if you maintain your balance, whether you keep your head back and eyes closed, whether you use the correct finger each time, whether you touch the tip of your finger to the tip of your nose, and whether you bring your arm back down without being told.
Field Sobriety Tests: Arrest or No Arrest
On the basis of your performance on any of these tests, the law enforcement officer may choose to arrest you for driving under the influence, and, depending on your particular circumstances, you may be cited for more than one offense. Whether you are arrested for a DUI, whether the state attorney decides to press DUI charges and whether your driver's license is revoked depends largely on the judgment of the police officer.
Field Sobriety Tests: Your Options
Field sobriety tests are designed to see if you appear to be under the influence of drugs or alcohol and cannot really determine whether you are in impaired. Whether you pass or fail is based completely on the law enforcement officer's personal observations and impressions. However, because these DUI tests are completely subjective, the police officer will likely not take into account extenuating circumstances that may contribute to your failing any of these tests, including fatigue, stress, illness, injury, and physical limitations, such as being elderly, overweight, or having back problems or even arthritis or sports injuries. Any sign that you are unable to complete the tests successfully will be interpreted as driving under the influence. Because field sobriety tests are an inexact science at best and rely primarily upon the law enforcement officer’s judgment, depending on the particulars of your case, there may be effective challenges that can be made in your defense. Whether you have taken field sobriety tests or chose not to consent, your first step should be consulting an attorney experienced in DUI defense cases.
Controlled Substance DUI
Driving under the influence of controlled substances is every bit as serious as driving under the influence of alcohol. However, an arrest for controlled substance DUI can also bring the additional problem of an arrest and conviction on charges of drug possession. The drugs involved are most often central nervous system stimulants, such as amphetamines and cocaine; central nervous system depressants, such as xanax; narcotic analgesics, such as codeine or morphine; inhalants, such as glue, nitrous oxide, or solvents; hallucinogens, such as LSD; phencyclidine (PCP); and cannabis, or marijuana.
If you or a loved one is facing controlled substance DUI charges in the Orlando or Kissimmee, FL, area, call Don Waggoner, a Kissimmee and Orlando controlled substance DUI defense attorney today.
Controlled Substance DUI: What it Means in Orlando and Kissimmee, FL
In many cases, the arresting officer will not have received any special training as a Drug Recognition Expert and will attempt to use standard field sobriety tests to show that you are impaired and may also ask you to take a blood or urine test in an attempt to show the presence of drugs or controlled substances in your body. In addition, the officer’s observations and your own statements may be used against you. It is extremely important to remember that if your arresting officer is not a qualified expert, depending on the facts of your case, the charges against you can be fought in court.
Controlled Substance DUI: The Burden of Proof in Orlando and Kissimmee, FL
When a law enforcement officer stops you on suspicion of controlled substance DUI, he must establish that your normal faculties are impaired. Because motorists under the influence of controlled substances may not register a blood alcohol content level, unless they have also been drinking, law enforcement is then forced to establish that your impairment is actually due to controlled substances and is not a normal physical condition for you. Also, complex scientific issues may be involved in your case concerning the identification of active ingredients of drugs in urine and blood tests. It is often difficult to determine whether the substance identified was an active or an inactive metabolite at the time of testing—that is, whether you were currently under the influence, or the metabolite was due to a previous use or ingestion. Should your case go to trial, the state will be required to have a toxicology expert testify about the levels of controlled substances in your body and how they may have contributed to your impairment at the time that you were driving. This is often a problem for the state, because the expert witness will most likely have had no contact with you and would have no clear understanding of your normal state of mind. All of these issues may be used in your defense of a controlled substance DUI.
Controlled Substance DUI: Your Options in Orlando and Kissimmee, FL
When a motorist has not been drinking, proving a controlled substance DUI is sometimes difficult for the state. But only an experienced attorney will be able to identify any weaknesses in the evidence against you and use them in your defense.
Blood Case Attorney in Orlando and Kissimmee, FL –
In many driving under the influence cases, the law enforcement officer will request that the driver submit to a blood test to determine his blood alcohol content (BAC) or to determine whether prescription drugs or controlled substances are present in his system. The blood test, if done properly, is seen as the most accurate way of measuring alcohol or drugs in the blood. However, because it is a lengthy and highly complicated procedure, it often presents challenges to the state in prosecuting the case in court.
If you or a loved one is facing a DUI blood case charge in the Orlando or Kissimmee, FL, area, call Don Waggoner, a Kissimmee and Orlando DUI blood case defense attorney today.
Blood Case: What it Means in Orlando and Kissimmee, FL --
Under Florida law, there are two kinds of blood tests: blood drawn at the direction of a law enforcement officer, known as legal blood, and blood drawn by medical personnel solely for the purposes of treating the injured driver, known as medical blood. In order to admit legal blood as evidence in court during a DUI trial, the state must show that the law enforcement officer complied with Florida's implied consent warnings. If blood is taken for medical purposes when the driver is an accident victim, the state may be able to subpoena the test results under certain circumstances. In order to admit medical blood during trial, the state must prove that the blood was drawn by a qualified medical technician, that the test results are relevant to the case, and that the blood test results are reliable.
Blood Case: Proving the Case in Orlando andKissimmee, FL
Specific legal challenges are often raised in a DUI blood case that can lead to reduction of the charges against you and even a dismissal of charges. A qualified defense attorney can use expert testimony to show that problems existed in the testing procedures, including (but not limited to) the following: the sample was not properly taken by a qualified person; a swab containing alcohol was used to clean the site where the blood was drawn; there were problems in mixing the blood sample with the proper levels of preservatives and anticoagulants; there was a failure to preserve two vials of blood so the defense attorney’s expert witness could also do testing; there was a problem in the chain of custody of the blood sample, such as whether the officer witnessed the blood being drawn and correctly completed all required forms; there was a problem in the storage of the blood sample; or potentially faulty compliance with Florida law regarding forced or mandatory blood seizure in a case involving a crash causing death or serious bodily injury or death.
Blood Case: Your Options in Orlando and Kissimmee, FL
Because there are a great number of variables in a DUI blood case, and because test results may take a long time to be returned, it is very difficult to pursue a defense against these charges on your own. Your first step should be consulting an attorney experienced in handling these cases, who will be able to help you protect your rights under the law.
Florida Statute § 316.1932(1)(a)
Breath Case Attorney in Kissimmee and Orlando, FL
Many motorists in Florida assume that if they have been pulled over for driving under the influence and blew over the legal limit of 0.08% on the breath test, that they will automatically be convicted of DUI. However, that is not always the case. It is possible that even if your test result was over the limit, even as high as 0.15%, your attorney may be able to get the state to reduce your charge to a less serious charge, such as reckless driving. Avoiding a DUI conviction can help you avoid a driver’s license suspension, fines and court costs, and increased car insurance rates.
If you or a loved one is facing DUI breath case charges in the Kissimmee or Orlando, FL, area, call Don Waggoner, a Kissimmee DUI breath case defense attorney today.
Breath Case: What it Means in Kissimmee and Orlando, FL
Florida law requires that you must be observed for a full twenty-minute waiting period before you can be administered a breath test. Legally, that means you must be watched the entire time before you blow into the machine, and you must not have eaten, drunk or taken anything by mouth, or regurgitated, for that full period of time. Under Florida law, this rule must be followed exactly in order for your breath test results to be admitted as evidence against you in court. If the officer or breath test technician deviated from the rules, the state may not present the results of your test as evidence at your trial. Without breath test results, in many cases the state is forced to dismiss the DUI charge entirely or reduce the charge to reckless driving
Breath Case: Possible Defensesin Kissimmee and Orlando, FL
An attorney may be able to prove a number of factors in your defense, including the following: The officer did not have the reasonable suspicion necessary to stop your vehicle; the officer failed to read you the implied consent, or did read it but not in accordance with the law; you were read the implied consent in English, but you speak another language; you were denied your request for an independent blood test; the breath test operator failed to observe you for the mandatory twenty minutes; you have a medical condition which could have affected the results of the test; the test operator failed to administer two breath samples within a 15-minute time period; and the breath test instrument was not properly calibrated. In all of these instances, and others, your breath test results may not be entered as evidence at trial. Without your breath test results, in many cases, your DUI charge may be dismissed entirely or reduced to lesser charges. In order to determine whether your 20-minute observation period was properly handled, your attorney will be able to obtain and view a copy of the videotape of your breath test.
Breath Case: Your Options in Kissimmee and Orlando, FL
A charge of driving under the influence based on a breath test result of 0.08% or higher does not automatically mean a conviction, but only an experienced DUI defense attorney can provide you with the best chance of reducing your charges and even avoiding a DUI conviction.
Florida Statute § 316.1932
Refusal Attorney in Kissimmee and Orlando, FL
When you are stopped for DUI in the State of Florida, you may be asked to take a breath test, blood test, or urine test for the purposes of showing that you are under the influence of alcohol, prescription drugs or controlled substances. Although your Florida driver’s license includes a statement that says, “operation of a motor vehicle constitutes consent to any sobriety test required by law,” you are not, in fact, required to take any test and may refuse to do so, for any number of reasons. However, if you do refuse, the state will use the fact that you refused to take any test as an indication of your guilt, known as the "consciousness of guilt" argument, even if your refusal was due to other factors.
If you or a loved one is facing DUI refusal charges in the Kissimmee or Orlando, FL, area, call Don Waggoner, a Kissimmee DUI refusal defense attorney today.
Refusal: What it Means in Kissimmee and Orlando, FL
Under Florida law, a refusal can be either an express or an implied refusal. An express refusal includes telling the arresting officer that you specifically will not take the test. Implied refusals are more complex, and can include telling the officer that you will respond only after you have spoken with an attorney or simply not answering out of fear or confusion. Refusing to take any test means the state will not have an important piece of evidence it needs to convict you: the results of a chemical test showing that you were over the legal limit of 0.08% or that certain drugs were in your system.
Refusal: Administrative and Criminal Penalties in Kissimmee and Orlando, FL
If you refused to take a breath, blood or urine test, you will be facing additional administrative penalties, as follows: For a first DUI refusal, your driver’s license may be suspended for 12 months, with a 90-day “hard suspension,” which is no driving at all under any circumstances, not even for hardship or business purposes; for a second refusal, suspension for 18 months, with an 18-month hard suspension. For a third or subsequent DUI arrest, if you refused the breath test but none of your prior DUI cases involved a refusal, then your license may be suspended for 12 months, all hard suspension; if you refused the breath test and one of your prior DUI cases also involved a refusal, then you will be facing an 18-month hard suspension. If you are caught driving for any reason during a hard suspension you can be charged with Driving While License Suspended With Knowledge (DWLS). In addition, if you have a previous refusal to submit, you can also be charged with a first-degree misdemeanor that is separate from your DUI charge. When you refuse, the arresting officer can take your license and administratively suspend your driving privileges.
Refusal: Your Options in Kissimmee and Orlando, FL
In many cases, a DUI conviction can be avoided. However, because you have only ten days to request a hearing to fight the administrative suspension of your license, your first act should be speaking with an experienced DUI refusal attorney, who will be able to examine your options and identify the best avenues of defense in your case.
DUI Urine Case
Urine Case Attorney in Kissimmee, FL
If you are pulled over for a DUI in Florida, you may be asked to take a urine test if you have taken a breath test and the result is under the legal limit of 0.08%, or if the officer suspects you of using drugs. The urine test is viewed as the least reliable method of testing blood alcohol content, but it does detect trace amounts of substances left in the body after using either prescription drugs, such as valium, hydrocodone or oxycontin, or controlled substances, such as marijuana, cocaine, or heroin. A urine test can also show the presence of over-the-counter drugs, such as cold remedies or sleeping aids.
If you or a loved one is facing DUI urine case charges in the Kissimmee, FL, area, call Don Waggoner, a Kissimmee DUI urine case defense attorney today.
Urine Case: What it Means in Kissimmee, FL
If your case goes to trial, the state will attempt to show the urine test indicates that you were impaired at the time you were driving, but the test results may be affected by such factors as your age, urine volume, metabolism, and the accumulation of metabolites, substances in your body formed from the use of drugs but not necessarily indicative of your using the drug in the time leading up to your arrest. The urine test can detect marijuana for more than two weeks after consumption for a casual user, and for up to one month for a chronic user. Also, legal substances can cause a false positive in a urine test, including pain medication such as ibuprofen or naproxen, or health supplements such as Vitamin B2 and hempseed oil. Even medical conditions such as a kidney infection, liver disease, or diabetes can lead to a false positive.
Urine Case: Proving the Case in Kissimmee, FL
Because a urine test may show only that you have in the past used controlled substances or prescription drugs, and not that you were using them in the time leading up to your arrest, a defense attorney may be able to argue that the test results should be excluded from evidence in your case. In fact, a number of legal challenges are often raised in a DUI urine case that can lead to a reduction of the charges against you or even a dismissal of charges, and this is especially true for a urine test for the presence of alcohol. A person who drinks an alcoholic beverage will not have any detectable level of alcohol in his urine for up to two hours, and once the alcohol does enter the urine, it takes much longer to dissipate in the urine than it does in the blood. This is the likely cause of a urine sample showing the presence of alcohol, while the blood sample does not.
DUI with Property Damage
Florida Statute § 316. 193(3)
In the State of Florida, a DUI charge is serious. When it is coupled with DUI property damage charges, the penalties are even higher if you are convicted. Even if your case did not involve any type of personal injury, the state will look closely at any DUI case involving a car accident because certain enhanced penalties apply in those cases. Under Florida law, the criminal charge of DUI that causes damage to another person or property is a First-degree Misdemeanor. You will be required to pay restitution to the owner of the property you damaged, and if you injured another person, your charges are automatically increased, as well as the fines and the potential jail time you may serve.
If you or a loved one is facing DUI with property damage charges in the Kissimmee or Orlando, FL, area, call Don Waggoner, a Kissimmee and Orlando DUI with property damage defense attorney today.
DUI with Property Damage-- What it means in Kissimmee and Orlando, FL:
According to Florida Statute 316.193(3), a motorist may be charged with this offense if they: operate a vehicle, are driving a vehicle, or are in actual physical control of a vehicle; they caused or contributed to causing damage to the property of another person or injury to another person; and they are under the influence of an alcoholic beverage, chemical substance or controlled substance and their normal facilities are impaired; they have a blood alcohol concentration (BAC) of 0.08 grams or more of alcohol per 100 milliliters of blood or have a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath. Normal faculties are considered to be basic motor skills, such as walking, talking, driving, standing, breathing and thinking. The state will be required to prove each of the preceding elements in order to convict you on these charges. If the state is unable to prove even one element, you may be acquitted of the charges or be convicted of a lesser offense.
DUI with Property Damage-- Criminal Penalties in Kissimmee and Orlando, FL:
A person who has been charged with causing property damage resulting from DUI can be charged with a misdemeanor of the first degree. A conviction may bring a jail sentence of up to one year, and/or a fine of up to $1,000. In addition, you may face a number of other penalties, including the following: community service; court costs and fees; suspension of your driver’s license; placement of an interlock device on your vehicle; probation; psychosocial evaluation; and/or completion of a DUI program. You are also subject to any civil penalties resulting from the property damage. If you had a blood alcohol level of 0.15% or higher, or you had a passenger under the age of 18 in your vehicle, your penalties may be higher, including larger fines and more time in jail.
DUI with Property Damage-- Your Options in Kissimmee and Orlando, FL:
Because the state must be able to prove each element of the applicable Florida Statute, an attorney experienced in DUI with property damage cases should review your case to determine your best defense against these charges. You may have defenses to the charge such as suppression of the evidence, inability of the State to present sufficient witnesses or evidence to prove the crime, and others. An attorney may also help to negotiate for lesser charges and/or a more preferable sentence.
DUI with Serious Bodily Injury
DUI with Serious Bodily Injury Attorney in Kissimmee, FL
Florida law defines “serious bodily injury” as an injury to any person that causes the loss or impairment or function of a body part or organ, serious personal disfigurement, or the substantial risk of death. If you have been charged with driving under the influence (DUI) with serious bodily injury, it is a third-degree felony, and the charge may even come months after the accident as the result of an investigation. If a blood sample was taken from you at the scene or even at the hospital, it may be weeks or even longer before the results come back. If the results show you were intoxicated, a warrant will be issued for your arrest.
If you or a loved one is facing DUI with serious bodily injury charges in the Kissimmee, FL, area, call Don Waggoner, a Kissimmee DUI with serious bodily injury defense attorney today.
DUI with Serious Bodily Injury: What it Means in Kissimmee, FL
Charges of driving under the influence with serious bodily harm can have grave consequences in Florida. Under state law, a person causing serious bodily harm to another individual, either in their car or in another vehicle, while driving under the influence of alcohol, is guilty of a third-degree felony. If the victim was so seriously injured that they eventually died from their injuries, the driver charged with DUI with serious bodily injury can then be facing charges of DUI manslaughter, a second-degree felony leading to up to 15 years in prison.
DUI with Serious Bodily Injury: Criminal Penalties in Kissimmee, FL
Under Florida law, DUI with serious bodily injury is a third-degree felony charge which carries a statutory maximum penalty of 5 years in prison and a $5,000 fine. Also, the Court can impose a sentence pursuant to a sentencing scoresheet. For example, if you are facing charges of driving under the influence with serious bodily injury, and you have no prior criminal history of any kind, you are facing what is known as a level 7 offense, which adds 56 points to your scoresheet. If the Court also finds that the victim’s injury is severe, which it most likely will be, an additional 40 points would be added to your score. When the total guideline sentence for this charge is calculated, the minimum prison sentence for that offense would be four years and three months. If you have any other charges on your criminal record, the punishment will likely be worse. In addition to the prison time, a conviction for DUI with serious bodily injury will result in a minimum three year suspension or revocation of your driver's license, which doesn’t begin until after you have finished your incarceration.
Driving While License Suspended (DWLS):
Driving While License Suspended (DWLS) is one of the minor misdemeanor traffic offenses that are taken very seriously by the legislature and judges in Florida. A first time DWLS is a 2nd degree misdemeanor, a second offense is a 1st degree misdemeanor, and a 3rd or subsequent one is a 3rd degree felony. Many judges in Central Florida impose at least 30 days in jail for a first time misdemeanor DWLS. This offense should not be taken lightly.
* MY ADVICE: Do not drive with a suspended license, and especially if it was suspended as the result of a DUI.
Orlando and Kissimmee Criminal Lawyer Don Waggoner is very experienced in representing persons accused of DWLS. He has been successful at getting habitualized offenders their license back and getting a DWLS reduced to a lesser offense and, thereby, avoiding any jail time. In other words, he has been successful at helping people get their licenses back and getting them back on the road legally. If you are charged with a DWLS, even if it is a non-criminal infraction, let him see if he can help you keep your license or get it back.
There are several types of DWLS offenses:
1. Civil Infraction - This happens when your license is suspended and you had no legal knowledge of it. This happens when the license is suspended by the DHSMV and you are stopped within 20 days of this suspension taking effect. It is call DWLS with No Knowledge. When your license is suspended, the DHSMV is required to give you notice. The knowledge that your license is suspended is presumed after 20 days.
A civil infraction is punishable by a fine only. If convicted, it puts 3 points on your license. Three (3) of these convictions can get your license suspended for 5 years. If the infraction is for DWLS without (w/o) knowledge, and you get a withhold of adjudication on it, it does not count towards Habitualization and a 5 year suspension. There is a way to avoid the conviction and the 5 year suspension. Do not just pay this ticket. Ask for a hearing. See an attorney. If you do that, in many cases you can avoid a conviction and a license suspension.
2. Misdemeanor (MM) DWLS Criminal Offense - a first offense is a 2nd degree MM. It is punishable by up to 60 days in jail and a $500.00 fine. It counts towards the three that it takes to get habitualized and a 5 year DL suspension. Do not just plead guilty to this offense. Hire an attorney and let him or her help you avoid a conviction, if possible.
A second offense is a 1st degree MM, punishable by up to 1 year in jail and a $1,000.00 fine. It counts towards the three needed to get habitualized and a 5 year DL suspension. Do not just plea guilty to this offense. Hire an attorney and let him or her help you avoid a conviction, if possible.
A third offense may be a felony, but if the suspension was the result of failure to pay fines or a lapse of insurance, it will be a misdemeanor. It can still be used towards that 5 year suspension.
3. Felony DWLS - DWLS becomes a felony in two cases: a) if you are habitualized, or b) if it is the third or more offense and was not due to fines or a lapse in insurance. If you get convicted of this crime you can get up to 5 years in prison and a $5000.00 fine. Convictions may be used to suspend your license for 5 years. Do not just plea guilty to this offense. Hire an attorney and let him or her help you avoid a conviction, if possible.
How do you become a Habitualized Traffic Offender (HTO) and get your license suspended for 5 years?
Answer: Get any combination of any 3 of the following within a 5 year period:
1. Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle
2. Any DUI
3. Any felony in the commission of which a motor vehicle is used
4. Driving while your license is suspended or revoked
5. Failure to stop and render aid at a motor vehicle crash resulting in death or personal injury
6. Driving a commercial vehicle while that privilege is disqualified
7. Fifteen (15) conviction for moving traffic infractions for which points may be assessed
Your license will not be automatically reinstated after the 5 years is up. You must go to DHSMV and get your license reinstated.
Driving While License Suspended (DWLS):
According to Florida Statute 322.34(2), “Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in § 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon: (a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in Florida Statute § 775.082 or §. 775.083; (b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in Florida Statute § 775.082 or § 775.083; (c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in Florida Statutes § 775.082, § 775.083, or § 775.084.” This section of Florida Statute 322.34 focuses on the motorist who knows about the suspension, cancellation or revocation of his or her license, and provides penalties for continuing to drive with that license. Exception -- The exception to 322.34(2) is a person who is a habitual traffic offender. The element of knowledge is satisfied if the person has been previously cited for the same offense, or admits to knowledge of the cancellation, suspension, or revocation, or has received notice of the cancellation, suspension, or revocation.