In Florida, driving under the influence (DUI) of alcohol or drugs is illegal. Every state's statutes set out penalties for DUIs (DWIs as they are known in some jurisdictions), and they are by no means uniform. That makes it essential for anyone driving in Florida to understand the DUI laws in the state, including what will happen if they've been out on the town and get stopped while driving.
DUI Basics in Florida
The crime of driving under the influence in the state of Florida targets both drunk driving and drugged driving. The primary statute that sets out Florida DUI laws is Florida Statutes Motor Vehicles Law Section 316.193. This provision outlines the different DUI offenses and what a driver can expect in terms of penalties.
The test for driving under the influence in Florida is whether the driver's faculties are significantly impaired by alcohol and/or drugs. This means whether a person's normal faculties are significantly reduced or diminished. A person under the influence of alcohol may have consumed alcohol in any form, from light beer to 100 proof liquor.
A person who is under the influence of drugs might have taken cough medication or marijuana. The police and the prosecutor will ask only whether the person ingested enough alcohol and/or drugs to impair their normal faculties.
Driving Under the Influence of Alcohol
The first type of DUI described in the code – driving under the influence of alcohol – does not specify a particular amount of alcohol that must be involved. If a police officer sees a driver operating their vehicle in an erratic manner, they can pull over the driver. For example, if a car is swerving all over the road or braking suddenly for no reason, they might suspect a DUI, stop the vehicle, and ask the driver to perform field sobriety tests. If the driver has balance or coordination issues, or if their breath smells of alcohol, the police can arrest them for driving under the influence of alcohol.
To take a DUI case like this to court, the prosecutor would introduce police officer testimony of the driver's behavior and signs of alcohol impairment they witnessed. They would need to convince the jury beyond a reasonable doubt that the driver was impaired.
Legal Limit for Alcohol
The second type of DUI described in Florida statutes makes it illegal for someone to operate a vehicle on Florida roads if they have a breath or blood alcohol level (BAL) of 0.08 percent or higher. For a commercial driver, this legal limit is 0.04 percent. To determine the BAL, the police have the driver take a chemical test, like a breathalyzer or blood test. If a person's BAL is above the legal limit, they are presumed under the law to be intoxicated.
This offense is called a "per se" DUI, meaning a DUI in and of itself. That is because a prosecutor doesn't need to introduce any evidence other than the BAL level to show impairment. Note that the BAL legal limit for a driver under the age of 21 is 0.02 percent under Florida's zero tolerance law.
Driving Under the Influence of Drugs
The Florida law describes another offense known as a drug DUI. If an individual drives in the state under the influence of chemical substances or controlled substances, they are guilty of a drug DUI.
The terms "chemical substances" and "controlled substances" are defined in the statute. They include drugs that are illegal, like heroine or cocaine, and other drugs that are legal to use, like over-the-counter cold syrup and medically prescribed drugs, like opioids or other pain killers. While it is legal to use legally obtained drugs, it is a crime for a person to drive when their ability to drive is impacted by the use of those chemical substances or controlled substances.
Note that there is no legal limit for drugs, which means that there is no per se DUI for drugs. While Florida officials can use chemical testing to find out if a person has drugs in their system, there is no set amount that in and of itself constitutes impairment. Experts agree that someone with 0.08 percent alcohol will be too impaired to drive, but there is no consensus on the amount of drugs in a person's system that makes them impaired. That means that prosecutors of a drug DUI must prove impairment by officer testimony and other evidence.
DUI Administrative and Criminal Penalties
Florida statutes set out a broad range of penalties for DUI convictions. The first type are administrative penalties, which always involve loss of driving privileges and are administered by the Florida Department of Highway Safety and Motor Vehicles (FLHSMV). Generally, when someone is arrested for a DUI-related offense, law enforcement retain their driver's license and give them a short-term temporary license. Once that expires, the administrative driver's license suspension is in effect unless a driver wins his case at a FLHSMV hearing.
A driver has 10 days after the DUI arrest to file an appeal with the FLHSMV. This enables them to appear at a hearing before an administrative law judge and make the case why their license shouldn't be suspended. At the end of the hearing, the judge determines whether a driver's license suspension is appropriate. If so, the person's license is suspended for a period of time. If not, it is returned to them.
The level of criminal penalties for a DUI depend on several factors. The two most important factors are the person's prior driving record and the existence of aggravating factors and circumstances. Note that any prior convictions for boating under the influence (BUI) count as prior DUIs as well. Aggravating factors include having a minor passenger in the car or having a BAL of 0.15 percent or higher. Circumstances that make the DUI a more serious crime include causing serious bodily injury or death to another human being.
Criminal Sanctions for a DUI
The range of criminal penalties for a DUI include fines, a period of imprisonment and/or probation, mandatory substance abuse classes, and license suspension or revocation. In discussing the DUI penalties, people generally talk about simple DUIs, aggravated DUIs and DUIs including property damage/serious bodily injury or death.
Simple DUIs in Florida
Most simple DUIs are misdemeanors, the less serious type of crime. However, a third simple DUI within 10 years is a felony. Those convicted of DUI offenses are ordered to attend mandatory DUI/substance abuse classes. In addition, fines, imprisonment and loss of license are on the table.
A first DUI conviction can include penalties of:
- Fine of between $500 and $1,000.
- Jail of up to six months.
- Probation of up to one year, including 50 hours of community service.
- License revocation of between 180 days and 365 days.
If a second conviction happens more than five years after the first, the same penalties apply as for the first offense. For a second conviction within five years, the penalties are higher:
- Fine of between $1,000 and $2,000.
- Jail of up to nine months.
- Probation of up to 12 months, including 50 hours of community service.
- License revocation of between 180 and 365 days.
- Up to two years of mandatory use of an ignition interlock device (IID), a type of breathalyzer that attaches to the ignition of the vehicle and allows the car to start only if the driver's BAL shows no alcohol use.
For a third offense and conviction that occurs 10 years or more from the prior conviction, the same penalties apply as for a simple second conviction. For a third conviction of simple DUI within 10 years of the prior conviction, penalties are:
- Fine of between $3,000 and $5,000.
- Prison term of between 30 days and five years.
- License revocation of 10 years.
- Up to two years of mandatory use of an IID.
Note that in some cases, a driver with a suspended or revoked license may qualify for a hardship license. This allows them to do essential driving, like back and forth to work college.
Aggravated DUI in Florida
The potential fines and jail time increase if the DUI charge includes aggravating circumstances. For example, for a first conviction where the driver's blood alcohol level is 0.15 percent or above or if a minor was a passenger in the vehicle, the maximum fine increases to $2,000, and the potential jail time to nine months. If the driver already has one DUI or BUI conviction and is then convicted of an aggravated DUI, they face a fine of between $2,000 and $4,000. For a third DUI conviction that is a felony, an aggravated DUI can result in a fine of between $4,000 and $5,000.
Serious DUI Crimes
If a person's impaired driving causes another person serious injury or death, the crime is a felony and more serious punishments apply. If a DUI driver's impairment results in serious injury to someone, it is a third-degree felony in Florida. The fines can be up to $5,000, with four or five years in prison and at least a three-year license revocation. This is only true if the accident was the DUI driver's fault and caused by their impairment. If the accident was caused by the victim, such as making an unsafe lane change, for example, the DUI driver may be convicted of a DUI, but not of homicide.
Likewise, if the DUI driver was at fault, and the accident resulted in the death of another person, it is a second-degree felony in Florida. The driver may be fined up to $10,000, be sent to prison for between four and 15 years, and suffer a permanent driver’s license revocation. If the driver flees the scene, the imprisonment period can be 30 years.
Florida's Zero Tolerance Law
Underage drivers in Florida – those under the age of 21 – can be arrested for a DUI if they are found to have a BAL of 0.02 percent or greater. This underage DUI violation is not a crime but a civil offense that is punished by license suspension. Their license will be suspended for a year for a first zero tolearance violation and for up to 18 months for a subsequent offense.
And if the underage driver has a BAL of 0.05 percent or higher, they will also be ordered to attend DUI school classes. Note that an underage driver with a BAL of 0.08 percent or higher can, and usually is, charged with a regular DUI, not a zero tolerance law violation.
Implied Consent in Florida
Under Florida’s implied consent laws, anyone driving on Florida roads is deemed to have consented to submit to a blood, urine or breath test if arrested for a DUI. That means that anyone arrested for a DUI in Florida must take a chemical test or suffer sanctions.
Drivers who break this law are subject to a one-year driver’s license revocation for the separate crime of refusal. Subsequent offenses cause an increased period of license revocation and can be charged as a misdemeanor. In addition, the prosecutor can present the refusal at the DUI hearing as evidence. These penalties are separate from, and independent of, the DUI charges and apply even if the driver is not convicted of the DUI.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.