Although some states have lesser levels of impaired driving offenses, the baseline charge in Florida is driving under the influence, also called DUI. A person can be charged with this offense for being intoxicated to a degree that their driving ability is significantly impaired or if their blood alcohol concentration (BAC) equals or exceeds the legal limit. The penalties for a Florida DUI depend on the driver's driving record. The term driving while intoxicated (DWI) may sometimes be used as an alternative for DUI, but they mean the same thing in Florida.
Driving Under the Influence
All states make it a crime for a person to operate a motor vehicle while their driving ability is impaired by alcohol or drugs. Some states, like Florida, refer to this offense as driving under the influence, and use the acronym DUI to refer to it. Other states, including California, call this driving while intoxicated, using the shorthand DWI. In the vernacular, DUI and DWI are used interchangeably to refer to a state's basic law against drunk or drugged driving.
Florida's DUI law is found in the state's Motor Vehicles Law, Section 316.193. It outlines the various Florida driving offenses that involve use of alcohol and drugs. That statute makes it a crime to drive while under the influence of alcohol or drugs to the extent that the person's normal faculties are impaired. It also sets out the elements of a "per se" DUI charge that automatically occurs when a driver has a blood alcohol level of 0.08 percent or higher. Both of these crimes are termed DUIs in Florida.
Florida DUI Offenses
The distinction in Florida driving offenses is not between DWIs and DUIs, but between DUIs and per se DUIs. Both charges involve being under the influence of alcohol, but the standards and the evidence required to prove these crimes are very different.
To prove a DUI under Florida's Motor Vehicles Law, Section 316.193(1)(a), the prosecutor must show that the driver used either drugs or alcohol to such an extent that their driving ability was impaired. Drugs in this context can mean an illegal drug like cocaine, a legal drug like doctor-prescribed opioids or even over-the-counter cold medications. The key to a conviction is proof that the person's drug or alcohol use impaired their driving ability.
Generally, a prosecutor will try to establish impairment by testimony from the officer who stopped the car and questioned the driver at the scene. Officers can testify as to how the person was driving and how they behaved when pulled over. That is, they might offer testimony establishing that the driver had trouble talking, maneuvering the vehicle, getting out of the car or accomplishing any other behaviors that a person ordinarily would do easily.
Florida Per Se DUI
A per se DUI in Florida is described in Motor Vehicles Law, Section 316.193(1)(b). This law sets out the legal BAC level for a driver at 0.08 percent. This offense is called a per se DUI. In Latin, "per se" means in and of itself. When chemical testing shows that a driver's BAC is above the legal limit, that is sufficient evidence, in and of itself, to establish driving impairment for a Florida DUI. The test results create a legal presumption that the person was driving under the influence. Although the driver is permitted to offer evidence refuting this, they have the burden of proving that their driving abilities were not impaired by alcohol.
Note that lower BAC levels apply to commercial drivers, as well as to young drivers under the Zero Tolerance Law in Florida. That law makes it illegal for drivers under the age of 21 – who cannot legally drink in the state – to operate a motor vehicle with a BAC of 0.02 percent or above. This is a civil offense, not a criminal one, and punishable only by administrative license suspension.
Blood Alcohol Concentration
Call it blood alcohol concentration or blood alcohol content, it means the same thing. That is, a person's BAC represents the percentage of alcohol in their bloodstream. (The Florida statute calls it blood alcohol level, or BAL). The chemical tests that are used to test BAC in Florida are breath tests, blood tests and urine tests. All of these provide an objective measurement of how much alcohol is in a person's body.
In Florida, the breath test is most commonly used, largely because breathalyzers are portable and give rapid results. They do not require a trip to a medical facility for a blood draw as blood tests do.
Alcohol moves from a person's stomach into the bloodstream quite quickly, but the rate differs in differing situations. It's possible to find different "rules" in online blogs reciting how many drinks a person can have and still be under the legal limit. But these are not very accurate because many factors affect blood alcohol levels, including a person's gender, age, weight, and how much food and water they consumed earlier in the day.
Florida Implied Consent Laws
In Florida, anyone driving on the public roads or highways is deemed to have consented to taking a chemical test if they are stopped and arrested for a DUI. The traffic stop itself must be based on reasonable suspicions, while the arrest must be based on probable cause. If a person refuses a chemical test, a first offense carries a mandatory one-year license suspension, while subsequent offenses carry an 18-month suspension, They constitute independent misdemeanor offenses.
In addition, a prosecutor trying the person for the DUI charge can tell the jury about the driver's refusal to take a test.
Consequences for DUI Convictions
The penalties for a DUI and a per se DUI in Florida are the same, but they vary depending on the driving record of the person operating the vehicle. A first-offense DUI in Florida without damage or injuries is a misdemeanor. It is generally punished by imprisonment of up to six months, a fine of between $500 and $1,000, and a driver's license revocation of six to 12 months. If the driver's BAL was 0.15 percent or more, or if there was a minor in the car, the potential fines are doubled, and the term of imprisonment can be up to nine months.
A second offense within five years is also a misdemeanor, but the jail time can go up to nine months, and the fines up to $2,000. In the case of a higher BAL or a passenger who is a minor, the fines can go up to $4,000 and the prison time up to 12 months.
The fines and potential imprisonment go up with each additional prior offense. A fourth DUI is not charged as a misdemeanor, but as a felony. It can bring a period of imprisonment of up to five years in a Florida state prison. If the impaired driver caused damage to property or injury to people as a result of drinking and driving, the offenses and penalties are more serious.
Mandatory DUI School in Florida
Every DUI offense, even the first offense, also carries with it a mandatory period of DUI school. The convicted driver must sign up for, and attend, courses approved by the state of Florida that discuss substance abuse and driving. This can also require a drug and alcohol abuse evaluation and completion of any recommended follow-up treatment. The DUI school is not free, and drivers must pay all associated fees to attend.
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.