Aggravating circumstances that may elevate a first-time DUI to more serious penalties or a felony charge include:
Understanding the Law of Implied Consent
A driver may refuse to submit to a chemical test for alcohol or drugs, but under Florida's implied consent law (Florida Statutes, Chapter 316, § 316.1932), a DUI test refusal results in an automatic driver's license suspension. The only way to fight the administrative suspension is to demand a formal review hearing within 10 days of the arrest.
For a first DUI involving a BAC reading over 0.08, the administrative suspension is for six months with a potential 30-day hard suspension. For a first refusal DUI, the administrative suspension is for 12 months with a potential 90-day hard suspension. For a second DUI involving a refusal to submit to chemical testing, the administrative suspension is for 18 months with an 18-month hard suspension.
If you act within 10 days of your arrest, Hubbs Law Firm can assist you in demanding a formal review hearing. E.J. Hubbs is experienced in fighting to invalidate the suspension at the formal review hearing. He can also help you obtain a 42-day permit while you await the formal review hearing.
Even if you do not get the administrative suspension invalidated during the formal review hearing, your attorney will be able to question all the witnesses in the case under oath at the hearing, and that evidence can be used to help you win the criminal case.
Definitions of Terms Related to a First DUI
The key terms related to a first DUI offense are defined in statutes enacted by the Florida Legislature and criminal jury instructions issued by the Florida Supreme Court include actual physical control, vehicle, normal faculties, and intoxicated:
- Actual physical control of a vehicle means "the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time."
- According the official jury instructions for a first DUI offense, a vehicle is "every device, 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."
- The Florida Statutes, § 316.003(21), defines a motor vehicle as "a self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, swamp buggy, or moped."
- Normal faculties are defined in the jury instructions as "to include but are not limited to the 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."
- Intoxicated is defined in Florida as "meaning more than merely being under the influence of an alcoholic beverage. Intoxication means that the defendant must have been so affected by the drinking of an alcoholic beverage as to have lost or been deprived of the normal control of either his or her body or his or her mental faculties, or both. Intoxication is synonymous with 'drunk.'"
(See also Florida Standard Jury Instructions for Criminal Cases, Chapters 28.1 and 29.1.)
Elements That Must Be Proved to Obtain a First DUI Conviction
In order for the state of Florida to convict a person of a first DUI under Florida Statutes, § 316.193(1), a judge or jury must find beyond a reasonable doubt that a person driving a motor vehicle:
- Was in actual physical control of the vehicle
- Was under the influence of alcoholic beverages, a chemical substance, or a controlled substance to the extent that his or her normal faculties were impaired; or
- Had a BAC of 0.08 or more grams of alcohol per 100 milliliters of blood or 210 liters of breath.
Possible Criminal & Civil Penalties for a First DUI Conviction
The Florida Statutes, § 316.193(2)(a) list the criminal penalties that may be imposed for a conviction on a First DUI charge:
- A jail sentence of up to six months
- A fine of $500 to $1,000
Upon conviction, the court may (and almost always) imposes additional requirements and penalties, including:
- 12 months of probation (with the possibility of early termination)
- 50 hours of community service
- Driver's license suspension for six months (separate and distinct from any administrative suspension)
- 10-day vehicle immobilization or impound
- DUI school and follow-up treatment
- Ignition Interlock Device (IID); not required for a first DUI unless the case involves a BAC of 0.15 or above or DUI with a child passenger
- Additional fees and court costs
Note: A first-time DUI offender who registers a BAC of 0.15 or more, who has a child passenger, or who causes property damage or who is responsible for serious bodily injury or death, will face enhanced criminal penalties.
Administrative Driver's License Suspension in a DUI Case
An administrative driver's license suspension is mandated in any Florida DUI case involving a BAC over 0.08 or a refusal to submit to a breath, blood, or urine test. The administrative suspension can last six months for a first DUI involving a BAC of 0.08 or higher, or one year for a first DUI involving a refusal to submit to testing. A suspension may take effect immediately after a DUI arrest.
A person accused of First DUI has only 10 days to request a formal review hearing before the Florida Board of Administrative Reviews (BAR), a division of the Florida’ Department of Highway Safety and Motor Vehicles (DHSMV). In Miami-Dade County, this office is located at 7795 W. Flagler Street, Suite 82C, Miami, FL 33144-2369.
A qualified attorney who represents a person accused of a First DUI will be able to file a timely request for a formal review hearing and work to obtain a 42-day temporary driving permit (when eligible) while fighting to invalidate the administrative suspension.
If the arresting officer or breath test officer fails to appear at the hearing, then the hearing officer is required to invalidate the suspension. Other reasons exist for invalidating the suspension such as missing documents, insufficient evidence, or inconsistencies in the evidence.
Under the law, a person who refuses a DUI chemical test faces a driver's license suspension of 12 months the first time, with a 90-day "hard" suspension when no hardship license will be granted.
A person who registered a BAC of 0.08 or more on a breath test faces a driver's license suspension of six months, with a 30-day "hard" suspension.
The Waiver Review Hearing for a First DUI in Miami
Florida law also provides for a person with no prior offenses who was arrested for a first-time DUI after July 1, 2013 to waive the right to a review hearing within the first 10 days of the arrest and receive a hardship license.
If you wish to exercise this option, then you must personally appear at the Bureau of Administrative Reviews in Miami with a legible copy of your DUI citation and notice of suspension and proof that you have enrolled in DUI school.
You must also bring certain documents to comply with the Florida Real ID Act if you have not already done so. The problem with the waiver review hearing to gain immediate reinstatement is that you must waive all of your rights to contest the administrative suspension. You are essentially being asked to stipulate to the administrative suspension, which will remain on your driving record for next 75 years.
The administrative suspension will not be erased and is part of a person's permanent record, which could be a problem if any future DUI offenses occur. In fact, a second refusal is a separate and distinct crime that comes with harsh penalties. The period of the suspension is greatly enhanced for a second or subsequent administrative suspension.
If you meet with an experienced DUI attorney in Miami, then the attorney will be able to answer all your lingering questions about the criminal and civil aspects of your case. A qualified attorney can help you decide whether to request a formal hearing or a review of eligibility for immediate reinstatement.
Possible Defenses against a First DUI Charge
A skilled criminal defense lawyer may be able to mount any number of defenses against a first DUI charge. The police may have made critical errors during the traffic stop or arrest procedures. The DUI tests that were performed may have been conducted improperly, or the evidence may have been corrupted. The prosecutors may have made legal missteps in presenting the case.
In addition to the actions a DUI attorney can take to preserve a client's driving privileges, the attorney may also be able to employ other initiatives, including:
- Motions to suppress or exclude evidence in the DUI case
- Challenging the testimony of a DUI and drug recognition (DRE) expert
- Hiring an independent DUI or drug recognition expert to testify for the defense
- Challenging a DUI roadblock or DUI checkpoint
- Using legal knowledge of Florida's DUI laws to weaken the prosecution's case
Alternative Sentencing Options Available in Miami for a First DUI Charge
Anyone can make a mistake or have a brief lapse in judgment. A first-time DUI offender may be able to catch a break from the Miami-Dade County legal system.
A diversion program offered by the Miami-Dade County State Attorney's Office, "Back on Track," provides a first-time DUI offender with a path to a reduced reckless driving charge while withholding adjudication by the court, which may allow the arrest and criminal records to be sealed eventually.
The terms of the six-month Back on Track program are rigorous, and include:
- Random alcohol and drug testing
- Completion of DUI school within three months
- Substance abuse evaluation and treatment (if mandated)
- 40 hours of community service
- Completion of a two-hour victim impact panel class and the online YouImpact program
- Installation of an ignition interlock device (IID) for three months
- $500 fee for the cost of supervision
- $300 to a victim services/enforcement fund donation
- $50 for cost of prosecution
- Payment of fees for alcohol and drug testing, DUI school, substance abuse evaluation, and treatment fees
- Cost of recovery to law enforcement
- Additional court costs
The Back on Track program is certainly not for everyone, but it may be an alternative to a traditional criminal proceeding in some cases. Completion of the Back on Track program does not result in the dismissal of your DUI charges. Please discuss the Back on Track program and other options that may be available to you in Miami-Dade County when you meet with a qualified DUI lawyer.
Find an Attorney for a First DUI Charge in Miami, Florida
If you were charged with DUI for the first time anywhere in Miami-Dade County, it is important that you consider contacting Hubbs Law Firm for a confidential review of your case.
At Hubbs Law Firm, we always offer a free initial consultation for potential DUI clients. We know the DUI laws and when we discuss your case, we can explain the charges, as well as the possible penalties that may be imposed and any possible defenses that may be pursued.
Some first-time DUI offenders are eligible for a pre-trial intervention program, which could allow you to avoid a trial, or we may be able to find mistakes made by the police during a DUI arrest or in alcohol or drug tests that were conducted that could result in a reduction or dismissal of charges. Our goal in every DUI case is to avoid a conviction. We are always prepared to confront charges of DUI at trial if necessary.
Call Hubbs Law Firm today at (305) 570-4802 to schedule an appointment to discuss your DUI case. We are prepared to fight for you.
Additional Resources
- Florida Statutes, Title XXIII (Motor Vehicles), Chapter 316 § 316.193 — Driving Under the Influence — Read the Florida laws related to DUI and drunk driving offenses, including a first DUI offense.
- Florida Department of Highway Safety and Motor Vehicles — The DHSMV website contains information about administrative suspension driver's license laws related to DUI, as well as how to reinstate a Florida driver's license after an administrative suspension.
- Florida Standard Criminal Jury Instructions, Chapter 28 (Fla. Stat. 316.193) — Read the jury instructions provided by the Florida Supreme Court for DUI offenses. Section 28.1 of the jury instructions addresses most first-time DUI offenses, while other sections of the chapter address other DUI offenses.
- Back on Track — Back on Track is a program offered by the Miami-Dade County State Attorney's Office to first-time DUI offenders. Upon successful completion of the program, the DUI charge will be amended to Reckless Driving with a "withhold" of adjudication, which may result in eligibility for the sealing of the arrest and criminal file from the public record.
- Miami-Dade County Circuit Court — Find information on the county website about its criminal courts, including the DUI court. The criminal court for most DUI cases in Miami-Dade County is located at:
- Richard E. Gerstein Justice Building
1351 N.W. 12th St.
Miami, FL 33125
Phone: 305-275-1155
