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Frequent DUI Questions

Below are the more frequent questions I receive regarding DUI in Florida.

If you need a DUI attorney, contact Orlando DUI Attorney Richard Hornsby for a free initial consultation.

What is DUI and Drunk Driving?
Answer: DUI is an abbreviation for “driving under the influence.” A person is guilty of the offense if such person is driving or in actual physical control of a vehicle within the state and the person is under the influence of alcoholic beverages or any chemical or controlled substance set forth under the applicable statutes when affected to the extent that his or her normal faculties are impaired or when the person has a blood alcohol level of 0.08% or higher. “Drunk Driving” is a common misnomer for the crime of driving under the influence. While all individuals who drive while drunk are DUI, you do not need to be drunk to be considered under the influence.

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Can the Police take away my license if I am arrested for DUI?
Answer: Under Florida law, a law enforcement officer may seize the driver’s license of any person who is driving with an unlawful blood alcohol level of 0.08% or above, or who has refused to submit to a breath, blood or urine test. The officer will seize the individual’s driver’s license and issue the driver a traffic ticket which acts as both a ten (10) day temporary work permit (although, in most cases, the citation will incorrectly state that it is only valid for seven (7) days because the police departments have not printed new citation books to reflect the recent changes to the law) and as a notice of the suspension.

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If the Officer takes away my license, for how long is it suspended?
Answer: If you have refused to submit to a lawful breath, blood or urine test, your driving privilege will be suspended for a period of one (1) year for a first refusal, or for a period of eighteen (18) months if your driving privilege has previously been suspended as a result of a refusal to submit to such a test. If you have an unlawful blood alcohol level (that is, 0.08% or above), your driving privilege will be suspended for a period of six (6) months for a first offense, or for a period of one (1) year if your driving privilege has been previously suspended. All such suspensions are effective as of the date of the arrest.

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Why can my license be suspended before a trial; can I challenge the suspension?
Answer: While the criminal punishment under Florida laws provides for certain safeguards before an individual may be sentenced, you must remember that driving a motor vehicle is a privilege, not a right. Because it is a privilege, the State of Florida may withdraw that privilege if it has lawful grounds to do so. However, you have ten (10) days from the date your license was seized or suspended to request a formal review hearing before the Bureau of Administrative Review with the Florida DHSMV where you can challenge the legality of your license being suspended.

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Is it unlawful to drive with a blood alcohol level of 0.08% or higher?
Answer: Yes. It is a crime to drive with an unlawful blood alcohol level of 0.08% or above.

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Are you presumed guilty if you have a blood alcohol level of 0.08% or higher?
Answer: In any criminal case, it is unconstitutional to hold a presumption of guilt against a defendant. This is due to the fact that our constitution requires the government to prove its case beyond and to the exclusion of every reasonable doubt. However, the fact that you had 0.08% or more by weight of alcohol in your blood is prima facie evidence that you were under the influence of alcoholic beverages to the extent that your normal faculties were impaired.

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May I refuse to take a Breath, Blood, or Urine test if requested?
Answer: By accepting the privilege extended by the laws of this state of operating a motor vehicle, you are deemed to have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining the alcoholic content of your blood, and to a urine test for the purposes of detecting the presence of drugs, if lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. However, you may refuse to take such tests unless you are involved in an accident involving serious bodily injury or death to a human being. However, refusing such tests is not without cost. The law permits the Department of Highway Safety and Motor Vehicles to suspend your privilege to operate a motor vehicle for a period of one (1) year for a first refusal, or a period of eighteen (18) months for a second or subsequent refusal. Additionally, the refusal to submit to a chemical or physical breath test, or to a urine test, upon the request of a law enforcement officer, is admissible in any criminal proceeding against you. Also, if you have previously refused to submit to a breath, blood or urine test, a second or subsequent refusal to submit to such testing is a misdemeanor offense.

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What does “In Actual Physical Control” mean?
Answer: This term means that the individual has had the capability and power to dominate, direct or regulate the vehicle, regardless of whether or not he or she was exercising that capability or power at the time of the alleged offense. In other words, sitting behind the wheel with the keys in the ignition may qualify as being “in actual physical control” of a vehicle even though the vehicle is not moving.

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What are the minimum penalties for a first time DUI?
Answer: You will be Adjudicated Guilty, meaning you will have a permanent criminal record. You will be placed on one year of supervised probation, fined $250, ordered to complete 50 hour of community service, vehicle impoundment of ten (10) days, required to attend and successfully complete an approved DUI Counter Attack School, be evaluated for any substance abuse problems, and undergo any recommended treatment. Additionally, local custom requires completion of a Victims Awareness Class.

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I blew over the legal limit, can I possibly beat the DUI?
Answer: Absolutely! The machines used by law enforcement are tightly regulated and subject to strict maintenance requirements to be deemed reliable. Additionally, the testing itself must be done in a very specific manner. The failure to either properly maintain the machines, or to conduct the tests in accordance with the standard testing procedures, can result in the breath test being thrown out altogether, no matter how high your test came back.

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Contact DUI Defense Attorney Richard Hornsby

Contact DUI Defense Attorney Richard Hornsby for the DUI defense representation you deserve. The initial consultation is free and I am always available to advise you on the proper course of action to take.