Second DUI Offense within Five Years of Prior Conviction in Florida

Under Florida Statute 316.193(1),(2)(a), and (6)(b), the crime of Second DUI within Five Years of a Prior Conviction is committed in Florida when a person:

Drives a vehicle, or is found to be in actual physical control of a vehicle, within the state of Florida; and
Is either:
1. Under the influence of alcoholic beverages or any chemical or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or
2. Has a breath-alcohol level of 0.08 or higher; or
3. Has a blood-alcohol level of 0.08 or higher.
And has been convicted of DUI within five years of the current DUI.

Actual Physical Control

Actual Physical Control means a person must be physically in or, in the case of a motorcycle, on the vehicle and have the capability to operate the vehicle, regardless of whether the person is actually operating the vehicle at the time.

Penalties for Second DUI within Five Years of Prior Conviction

The crime of Second DUI within Five Years of a Prior Conviction is a Second Degree Misdemeanor in Florida, but carries standardized DUI penalties that are more severe than a traditional Second Degree Misdemeanor.

Additionally, if the person had a breath or blood alcohol level of .15 or higher or was accompanied by a minor at the time of the offense, enhanced penalties apply.

Standard Second DUI Penalties

If convicted of Second DUI within Five Years of Prior Conviction in Florida, a judge is required to impose the following penalties:

Minimum ten days in jail, but up to nine months in jail.
Up to twelve months of reporting probation.
Minimum five year driver license revocation.
Minimum fine of $1,000, but no more than $2,000.
Thirty day impoundment or immobilization of all vehicles owned by the driver.
Mandatory placement of an ignition interlock device upon all vehicles owned, used, or routinely operated by the convicted driver for not less than one year.
50 hours of community service.
Completion of a twenty-one (21) hour DUI Substance Abuse Course.
Completion of a psychosocial evaluation to determine if Substance Abuse Treatment is required.
Completion of any recommended substance abuse treatment.

Enhanced Penalties for Second DUI Offense

A person convicted of a Second DUI within Five Years of Prior Conviction is subject to enhanced penalties if the person either:

Had a breath or blood alcohol level of .15 or higher; or
Was accompanied in the vehicle by a minor at the time they were arrested.

Breath or Blood Alcohol Level .15 or Higher

In addition to the standard penalties, a judge must impose the following enhanced penalties if a person is convicted of Second DUI within Five Years of Prior Conviction with a breath or blood alcohol level of .15 or higher:

Minimum ten days in jail, but up to twelve months in jail.
Minimum fine of $2,000, but no more than $4,000.
Mandatory placement of an ignition interlock device upon all vehicles used, owned, or routinely operated by the convicted person for not less than two years.

Accompanied by a Minor

In addition to the standard penalties already required to be imposed, a judge must impose the following enhanced penalties if a person is convicted of Second DUI within Five Years of Prior Conviction while accompanied by a minor:

Minimum ten (10) days in jail, but up to twelve (12) months in jail.
Minimum fine of $2,000, but no more than $4,000.

Defenses to Second DUI within Five Years of Prior Conviction

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common evidentiary defenses that are raised in a Second DUI Offense are:

Illegal Traffic Stop
Improper Field Sobriety Tests
Insufficient Probable Cause
Inadmissible Breath Results

Illegal Traffic Stop

The law is very clear that a law enforcement officer may only stop a vehicle for one of two reasons:

If the officer has a reasonable suspicion that the driver is committing a traffic infraction; or
If the officer has probable cause that the driver committed a crime.

However, many times it can be shown that the officer was mistaken in his reason for conducting a traffic stop. If this is proven, all of the evidence obtained as a result of the illegal stop is suppressed and the prosecutor is forced to dismiss the DUI case.

Example of Illegal Traffic Stop

An officer stops a vehicle for an expired license plate and subsequently arrested the driver for DUI.

If it can be shown that the officer was mistaken in his conclusion that the license plate was expired, the judge will find that the officer made an illegal stop and suppress any evidence obtained as a result of the traffic stop. This will force the prosecutor to dismiss the DUI case.

Improper Field Sobriety Tests

In most DUI cases, law enforcement will administer Field Sobriety Tests prior to arresting the driver. The purpose of these tests is supposedly to assist the officer in determining whether a person is impaired.

And while everyone knows that the tests are designed to make a person fail, there are several avenues to challenging the officer’s testimony about these tests:

Is the officer familiar with the driver’s true balance and coordination?
Does the driver have any physical disabilities or injuries, such as a bad back or bad knees, which affect the driver’s ability to perform the tests, thereby making them unreliable and inadmissible.
Is the officer qualified to perform the specific Field Sobriety Test? Some Field Sobriety tests, such as the HGN test (eye following pen test), may only be relied upon when conducted by certified alcohol recognition experts. [1]
Were all of the tests deemed reliable by the courts. Some tests, such as the reverse alphabet test, are not admissible in court.

Insufficient Probable Cause

In order to arrest a driver for DUI, an officer must have probable cause to believe that a driver was under the influence of alcoholic beverages or controlled substances to the extent that the driver’s normal faculties were impaired.

If it can be shown that the officer’s probable cause conclusion was based on insufficient evidence or an unreasonable conclusion, then the driver’s arrest will be deemed illegal and any subsequent evidence will be suppressed, resulting in the prosecutor dismissing the DUI.

Example of Insufficient Probable Cause

Sometimes an officer’s sole reason to arrest a driver for DUI is based on the odor of alcohol.

However, the odor of alcohol by itself has been ruled an insufficient reason for an officer to believe that a driver is “under the influence” of alcoholic beverages to justify an arrest for DUI. [2]

Example of Unreasonable Probable Cause

If video of the Field Sobriety Tests objectively reveals that the driver performed satisfactorily in contradiction to the officer’s written report, many judges will find the officer’s conclusion that the person was impaired to be unreasonable.

As a result, the judge will suppress the arrest evidence and any subsequently obtained evidence, forcing the prosecutor to dismiss the DUI.

Inadmissible Breath Results

The Breathalyzer machines used by law enforcement are tightly regulated and subject to strict maintenance requirements in order to be deemed admissible. Additionally, the testing must be done in a very specific, standardized manner.

The failure to either properly maintain the machines or to conduct the tests in accordance with required procedures can result in the breath alcohol results being ruled inadmissible, no matter how high the breath alcohol results were.

Example

The failure of an officer to perform any of these simple steps may result in the breath alcohol results being thrown out.

Did the officer conduct a 20 minutes straight observation prior to administering the breath alcohol test?

Did the officer instruct the driver to “keep blowing” during the breath test?

Did the officer calibrate the machine properly prior to conducting the breath alcohol test?

Did the officer read Florida’s Implied Consent Law or incorrectly state the law?

Contact Orlando DUI Attorney Richard Hornsby

If you have been arrested or charged with the crime of Second DUI within Five Years of a Prior Conviction in Central Florida or the Greater Orlando area, contact Orlando DUI Attorney Richard Hornsby today.

The initial consultation is free and we are always available to advise you on the proper course of action that can be taken.