A driver who is charged with a third driving under the influence (DUI) infraction in Florida faces penalties that include incarceration, a monetary fine and a period of driver’s license revocation. The severity of the punishment for this offense hinges on whether the individual commits a third DUI within 10 years of a second DUI conviction or more than 10 years after a second conviction. The penalties are less serious if the third DUI occurred more than 10 years after the second.
Penalties for a Third Florida DUI
A DUI is defined as driving under the influence of alcohol with a blood alcohol level (BAL) of 0.08 percent or above. The standard penalty for a third Florida DUI committed within 10 years of the second offense includes imprisonment of at least 30 days, with at least 48 hours of this confinement being consecutive, according to the Florida Department of Highway Safety and Motor Vehicles (FLHSMV).
Penalties further include a fine of between $2,000 and $5,000, driver’s license revocation for up to 10 years and installation of an ignition interlock device (IID) for at least two years. Additional penalties include completion of unsupervised probation for up to one year, completion of community service hours, completion of a Level II FLHSMV-approved school and undergoing substance abuse evaluation, as well as any recommended treatment.
The fine is not less than $4,000 if the offender had a blood alcohol level (BAL) of 0.15 percent or higher or if there was a minor in the vehicle. A driver with a third DUI conviction within 10 years of a second conviction can be charged with a third-degree felony. This level of felony carries a penalty of up to five years in state prison and a $5,000 fine. A driver with a third DUI conviction that occurs more than 10 years after the second will be charged with a first-degree misdemeanor instead of a third degree felony. This type of third DUI offense can be penalized with a maximum term of incarceration of one year in a county jail.
Florida’s Three Strikes Law
Florida has a “three strikes” law, which is explained in Florida Statutes Section 775.084. The three strikes law applies to habitual felony offenders and habitual violent felony offenders. If an individual has three strikes, or commits three felony or other qualified offenses within a five-year period, they are categorized as a habitual traffic offender (HTO). The individual’s driver’s license can be revoked for five years.
Florida Statutes Section 322.264 provides that qualifying offenses include a DUI; voluntary or involuntary manslaughter resulting from the operation of a motor vehicle; driving a motor vehicle with a suspended or revoked driver’s license; driving a commercial motor vehicle (CMV) while the driving privilege is disqualified; 15 convictions for moving traffic offenses for which points may be assessed as set forth in Florida Statutes Section 322.27; and any felony in the commission of which a motor vehicle is used, such as felony-level criminal mischief (property damage) caused by the driver using a motor vehicle.
The three strikes law does not apply to everyone who has committed three offenses. In order for an offense to count, it must be a distinct and separate felony that occurred within a five-year timeframe of the other offenses. Also, the individual must be convicted of the offense, rather than just arrested. Reckless driving does not count as a strike toward HTO status. An individual who has two DUI convictions and is looking at a third DUI conviction within five years should talk to a defense attorney. There may be a possibility of getting a DUI charge dropped to a reckless driving charge.
Getting a Hardship License
If an individual has a third DUI conviction within 10 years of a prior DUI conviction, they will suffer a driver’s license revocation for 10 years. They can apply for a hardship reinstatement hearing after two years. The individual must complete DUI school and stay in the DUI supervision program for the remainder of the revocation period. If the individual does not report for counseling or treatment, the Florida Department of Highway Safety and Motor Vehicles will cancel the hardship license.
In order to keep a hardship license, an applicant must not have consumed any alcoholic beverage or controlled substance, or driven a motor vehicle for 12 months before reinstatement. The individual must have an IID on their vehicle for two years. According to Florida Statutes Section 316.193, a driver cannot get a hardship reinstatement upon their second or subsequent suspension for test refusal. An individual disqualified from operating a commercial motor vehicle cannot get a hardship license to operate a CMV.
Vehicle Impoundment for Third DUI
Vehicle impoundment is an additional standard penalty for a DUI, according to Florida Statutes Section 316.193. Unless the family of the defendant has no other transportation, the vehicle will be impounded for 90 days if the case results in a third DUI conviction within 10 years of a prior conviction. Impoundment or immobilization of a vehicle cannot occur concurrently with incarceration. A court may dismiss an order of impoundment of vehicles owned by the defendant if the vehicles are operated solely by employees of the defendant or a business owned by the defendant.
Do DUI Offenses From Other States Count?
According to Florida Statutes Section 316.193, a prior DUI, driving while intoxicated (DWI), or driving with an unlawful blood alcohol level from another state counts if the state’s definition of the charge is substantially similar to that of Florida’s definition for a DUI. Florida law considers a prior misdemeanor DUI conviction as counting toward the total of three even if the defendant is appealing the conviction in the other state. A record of the state's department of motor vehicles is adequate to establish a prior DUI conviction in that state. The defendant can contradict or rebut the presumption that they have two prior DUIs with other evidence.
Being in Control of a Vehicle
Florida law requires a prosecutor to show that a driver was in control of the vehicle. This means the driver must be in the driver’s seat or close to it, the vehicle is capable of being operated, and the driver was in constructive possession of the key to the vehicle. An individual who was in the driver’s seat of a car with a flat tire, a dead battery or a starter that did not work cannot be proven to have committed a DUI. There are cases in which a defendant was arrested for a DUI while they were outside the vehicle. The prosecutor’s job becomes harder if there is evidence to indicate the defendant was trying to sleep or to rest while intoxicated.
This is why the details of a case matter: For example, a defendant with a unique situation, such as being situated far over on a bench-style front seat and a second person with access to the car key in the vehicle, may be less likely to be convicted of a third DUI. A defendant should talk to an experienced DUI defense attorney about what evidence exists to disprove a third Florida DUI.
- Florida Department of Highway Safety and Motor Vehicles: Florida DUI and Administrative Suspension Laws
- Florida Statutes 2019: Section 775.084 Violent Career Criminals
- Florida Statutes 2019: Section 316.193 Driving Under the Influence; Penalties
- Florida Statutes 2019: Section 322.264 Habitual Traffic Offender Defined
- Florida Statutes 2019: Section 322.27 Authority of Department to Suspend or Revoke Driver License or Identification Card
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.