Like many states, Florida discourages driving under the influence (DUI) by making it illegal. While punishment for a first offense is tough, it is not extremely severe. However, repeat offenders will find that with each additional DUI conviction, criminal and administrative sanctions rise.
Bigger Penalties for a Second DUI
For a second-offense DUI in Florida, a driver can expect bigger fines, more time in jail and longer license suspensions than they received the first time around. And if the second DUI happens to involve injuries to others, drivers might find themselves behind bars for a long time.
Anyone who drives in Florida should have a clear understanding of the laws about driving under the influence. The Florida Department of Transportation reports that at least a quarter of all motor vehicle deaths in the state involve impaired driving. Learning how the law works can help drivers regulate their behavior to avoid the consequences and penalties.
Second-Offense DUI Conviction
There is no crime specifically called "second-offense DUI." The base crime is driving under the influence, found in the Florida Motor Vehicles statutes starting at Section 316.193. These laws make it illegal for anyone to drive in Florida while under the influence of alcohol, certain harmful chemicals or specified controlled substances.
That statute also sets out the penalties for a first offense and for repeat offenses. In brief, anyone convicted of a simple DUI with one prior DUI on their record will face a fine of between $1,000 and $2,000; up to nine months in jail; license suspension; DUI school; probation with community service; and mandatory use of an ignition interlock device (IID) for a year after their license is restored.
But a second-offense DUI can involve aggravating factors, like having a minor in the car while driving under the influence or can involve additional crimes, like killing a pedestrian. Charges with aggravating factors can be extremely serious, and the penalties much higher than for a simple second-offense DUI. That's why it is important to get an overview of the basic DUI laws in Florida, including potential penalties for aggravated DUI charges and other DUI crimes.
Actual Physical Control of Car
In order to be convicted of driving under the influence under Florida laws, a person must meet the elements of the crime. First, they must be driving or in actual physical control of a vehicle within this state. In this respect, Florida's laws are a little different from some other states.
The phrase actual physical control means that even if a driver is not technically driving, they can still be found guilty of a DUI. Under Florida DUI law, a person who is sitting in their car's driver's seat with the keys within physical reach has met the first element of the crime of driving under the influence. A criminal court judge considers all of the facts and circumstances before making a determination as to whether a driver was in actual physical control.
Driving Under the Influence
The second element – that the driver is under the influence – is set out in Florida's Motor Vehicle Laws Section 316.193(1). That law provides that a person is guilty of the offense of driving under the influence if they are "under the influence of alcoholic beverages, any chemical substance set forth in Section 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired."
Alternatively, the driver can be guilty of a DUI if they meet the first element that their blood alcohol level or breath alcohol level is 0.08 percent or more. Each of these variations is important to understand.
An individual can be convicted of a DUI if they drive under the influence of alcohol. While many people would like to know in advance how much alcohol will tip the balance here, the statute doesn't specify an amount. Drivers are considered to be under the influence if they drink enough that their normal faculties are impaired.
The amount of alcohol a person can drink without impairing their faculties depends on a variety of factors, like what type of alcohol they consumed – light beer or shots of vodka – and how quickly. Alcohol moves into the blood stream faster if a person hasn't eaten much, and can affect a lighter person's faculties more than a heavier one.
A prosecutor bringing a DUI case against someone based on a regular DUI needs to produce persuasive evidence of the driver's impairment. This might be testimony by witnesses of the way the person was driving, including that of the arresting officers. The officers can also testify about any physical signs of intoxication, like a flushed face or lack of physical coordination when the driver got out of the car. The evidence must be sufficient to convince a jury beyond a reasonable doubt that the driver's faculties were impaired by alcohol.
Chemicals or Controlled Substances
Impaired driving also occurs when the driver is impaired by the use of chemical substances or controlled substances. Each of these terms is defined in the Florida statutes. Generally, both are types of drugs or chemicals that can be taken by recreational drug users to get high. Chemical substances include nitrous oxide and methyl ethyl.
Controlled substances include drugs that affect a person's abilities; some are prescription medications, others are illegal drugs. All of the drugs one hears about are on the list like opioids, Valium, meth or speed, marijuana, cocaine and heroin. While a person has a legal right to take drugs prescribed by a doctor, they are not permitted to drive while under their influence. The prosecutors must introduce sufficient evidence of impairment to convince a jury beyond a reasonable doubt.
BAL of 0.08 Percent
The prosecutor's job in bringing a DUI case is far easier if the driver fails a chemical test used to determine blood alcohol level (BAL). The most common test used is a breathalyzer, but blood tests and urine tests are also sometimes used. lf one of these tests establishes that the person's BAL is 0.08 percent or higher, there is a legal presumption that they are intoxicated.
Lawyers refer to this type of DUI as "per se," meaning "in and of itself." That is because when a chemical test shows that the driver had a BAL of 0.08 percent or higher, this is sufficient evidence of intoxication, in and of itself. Note that the 0.08 percent is for regular drivers; commercial drivers are subject to a lower BAL of 0.04 percent.
There is no similar per se limit for drugs. Chemical testing can be used to show that there are drugs in a person's system, but Florida hasn't established a legal limit for any drug. Florida prosecutors must present other evidence of impairment at all drug DUI trials.
The Act of Driving Means Consenting to Testing
In Florida, a driver is said to have consented to taking a chemical test by the act of driving in the state. This consent comes into play when a driver is arrested for a DUI. The police do not force chemical testing in a DUI that does not result in serious personal injury to another person.
But a driver who refuses to take a breathalyzer or other test after a DUI arrest is guilty of a separate offense called refusal that carries its own administrative and criminal penalties. And the fact of the driver's refusal can be used against them at the DUI trial.
Second-Offense DUI Penalties
If someone is convicted of a second-offense DUI, it means that they have a prior DUI conviction or BUI conviction. Boating under the influence (BUI) is also illegal in Florida, and a BUI conviction counts as a prior DUI. But aside from the existence of a prior conviction, the term second-offense DUI isn't specific enough to define a crime.
A person with a prior DUI/BUI conviction could be arrested after a breath check at a traffic stop, or they may be arrested after running into a bus stop full of people. The penalties will necessarily depend on the existence of aggravating circumstances, including driving under the influence with a minor in the car, driving with a BAL of 0.15 percent or higher, and injury to others in addition to the person's driving history.
The range of fines for a simple second DUI without any aggravating factors is $1,000 to $2,000. With aggravating circumstances – a BAL of 0.15 percent or a passenger who is a minor – the maximum fine increases to $4,000. If the driver's impairment results in serious bodily injury to another person, the fine can increase to $5,000, and when the impaired driving results in a person's death, the fine can be as much a $10,000.
Every DUI – even a first-conviction simple DUI – carries a period of potential jail time and/or probation that the trial judge can impose. This period increases with aggravating factors and whether there are consequences to others.
A simple second DUI without aggravating factors can carry a jail sentence of up to nine months in jail and probation of up to one year. If the driver had aggravating circumstances like a high BAL, the imprisonment period can be 12 months. DUI accidents that cause property damage carry a potential jail period of 12 months, while those causing serious injury can carry a prison term of five years. Any driving under the influence incident that causes a death carries a potential prison term of up to 30 years.
C. License Revocation
A driver convicted of a second-offense DUI will lose their driving privileges. If the first DUI conviction occurred less than five years before the current DUI, the driver's license is revoked for five years, but the driver may be eligible for a hardship license after 12 months. If the prior offense happened more than five years before the second DUI, the same revocation period applies as for first offenses: 180 days to 12 months. If the DUI causes bodily injury or death, the revocation period will be at least three years.
In some cases, a Florida driver whose license is revoked for a DUI crime may qualify for a hardship license. This type of license permits the person to drive to and from work, college or medical appointments. For a second-offense DUI, the statute mandates that any hardship license or renewed permanent license is conditioned on the placement of an ignition interlock device in every car the driver owns or routinely operates.
The IID is a breathalyzer device that attaches to the ignition of the vehicle. The car will start only if the driver passes the breathalyzer test. The driver must pay for the installation of IIDs and their maintenance.
D. DUI School
All drivers convicted of any DUI offense in Florida can be ordered to complete a term of substance abuse/DUI school. For a second DUI conviction in five years, the driver will be required to complete DUI school before getting back their permanent license.
- Florida Department of Highway Safety and Motor Vehicles: Florida DUI and Administrative Suspension Laws
- Florida Statutes 2020: Section 316.193 Driving Under the Influence
- Criminal Defendant: Can I Be Charged With DUI if My Car Is Parked or Not Running?
- Florida Statutes 2020: Section 877.111 Harmful Chemicals
- DMV Florida: Florida DUI
- FDOT: Impaired Driving
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.