Second DUI Offense in Florida

---

If you've recently been arrested in Miami, Palm Beach, or Broward County, FL for driving under the influence (DUI) and you already have a previous DUI conviction on your record, you can expect to face more severe penalties for a second DUI offense. The specific consequences you'll face for a second DUI conviction will depend on whether it occurred "within 5 years of a prior conviction" or "outside of 5 years of a prior conviction." Our dui defense attorneys in Fort Lauderdale serve all of South Florida and are standing by to start fighting for you. 

As is the case with any DUI arrest, your first course of action after being arrested for a second DUI is to consult with a skilled criminal defense attorney who can guide you through the legal process and help you address any pending license issues with the DHSMV. Unlike a first offense DUI, you are not eligible for a hardship license when a suspension is for a second DUI. The only and best defense to license suspension is to request a formal review within the first ten (10) days of your arrest. It is crucial to act swiftly and retain an attorney in order to plan a defense the the DHSMV's actions.

At The Law Office of Sean Clayton, PA, our team of committed lawyers specializes in providing strong defense for DUI cases in Fort Lauderdale, Miami, and West Palm Beach, which are situated in Broward, Palm Beach, and Miami-Dade Counties, FL. Our main goal is to achieve the best possible outcomes for our clients, often resulting in the complete dismissal of charges or reduction to the lesser offense of reckless driving.

Additionally, we offer invaluable guidance to our clients throughout the administrative DHSMV proceedings, advising them on strategies that may increase their chances of a favorable resolution. We also strive to secure diversion opportunities whenever they are available. Ultimately, our aim is to assist our clients in minimizing the long-term consequences associated with a DUI charge.

Following a DUI arrest in Miami, Palm Beach, Fort Lauderdale, or anywhere in South Florida, you will face two types of cases. The first is an administrative case with the DMV (Florida Department of Highway Safety and Motor Vehicles, or DHSMV), which focuses on the suspension of your driver's license. The second is the criminal case, which takes place in the courts of the Eleventh Judicial Circuit, Fifteenth Judicial Circuit, and the Seventeenth Judicial Circuit. In the administrative case, you have two options: fighting the suspension or waiving a review of the suspension in exchange for a limited driving privilege. Our attorneys have extensive experience handling both types of cases in all three counties and can provide guidance on the best course of action for you.

We encourage anyone accused of a second DUI to consult with an attorney early in the process. To aid in deciding which attorney to hire, consider reading our Tips for Selecting a DUI Attorney.

In order to secure a second conviction for driving under the influence (DUI), the State must establish two crucial elements beyond a reasonable doubt.

Firstly, they must demonstrate that the defendant either operated or had the ability to operate a vehicle. This includes situations where the defendant was discovered inside or on the vehicle with the keys in the ignition, regardless of their intention to sleep off the effects of alcohol. However, if the vehicle was not functional at the time of the alleged offense, the defense of inoperability may be invoked.

The second element pertains to the defendant's impairment caused by the consumption of alcoholic beverages, a chemical substance, or a controlled substance. This impairment can be proven in two ways: either by showing that the defendant's normal faculties were affected, or by establishing that their blood or breath-alcohol level exceeded the legal limit of .08 grams of alcohol per 100 milliliters of blood or 210 liters of breath.

To assess impairment of normal faculties, law enforcement often conducts field sobriety exercises. These tests are designed to identify any minor slips, slurs, or missteps that may indicate impairment. Although officers claim that these exercises are not graded on a pass/fail basis, they are trained to closely observe any perceived mistakes made by the defendant.

The term "normal faculties" encompasses a wide range of abilities, including but not limited to vision, hearing, mobility, speech, judgment, driving skills, decision-making in emergencies, and the performance of various mental and physical tasks in our daily lives. It may seem astonishing, but the police rely on these roadside assessments to determine a person's impairment. 

Additionally, it is important to note that any actions or statements made by the defendant while in the back of the patrol car, such as falling asleep, are recorded and can be used as evidence against them during the trial.

In the case of a second DUI, the State has the added burden of proving your prior conviction to the Judge for purposes of sentencing.  For purposes of sentencing, any prior conviction within the State of Florida, for similar crime outside the state, or for Boating Under the Influence (BUI) counts as a prior. Most of the time, a prosecutor will rely on Florida Statute §316.193(12) and use a DUI entry in your driving record to create a rebuttable presumption regarding priors.

Defending a DUI requires specialized knowledge and skill as a litigator. It is one of the most advanced areas of litigation involving challenges to technology, procedure, and law, depending on what is revealed during discovery. Feel free to explore the many second DUI DEFENSES IN FLORIDA to see whether one may fit the facts of your case. You can also set up a consultation with one of our criminal defense attorneys in either Broward, Miami-Dade, or Palm Beach County, who can discuss your second DUI case.

In the state of Florida, specifically in Broward, Miami-Dade, and Palm Beach County, which includes Fort Lauderdale and West Palm Beach, a second DUI suspension renders you ineligible for a hardship license for a period of 12 months.  As such, the only logical step is to challenge the administrative suspension.  You only have ten (10) days to request review, so the clock is ticking.

Florida offers two avenues for challenging a DUI administrative suspension. The first is informal review and second if formal review.

During the informal review process, a hearing officer carefully assesses all evidence provided by the police officer, including the necessary documentation. The driver also has the opportunity to submit any additional information they believe is relevant for the department's consideration. Within 21 days, the department must issue a decision and inform the driver as per §322.615(5). The department has the authority to uphold, modify, or overturn the officer's suspension decision. If the hearing officer denies the driver's petition, they have the option to pursue a formal review of the license suspension decision.

In the formal review process outlined in Florida Statute §322.615(6)(b), a designated hearing officer acts as a judge. This hearing officer possesses various powers, such as the ability to administer oaths to witnesses, issue subpoenas, receive evidence, make credibility determinations, and ultimately render a decision. It is the responsibility of the driver requesting the hearing to arrange witnesses and coordinate subpoena service with the state's attorney's office in the circuit court jurisdiction.

The scope of the hearing officer's review is restricted by Florida Statute §322.615(7). They can only inquire about specific matters depending on the circumstances, including whether the person had a BAC of 0.08% or above, whether the arresting officer had probable cause to believe the arrested person was driving under the influence, and whether the person refused alcohol/chemical/controlled substance testing. If the driver refused a alcohol/chemical/controlled substance testing, the hearing officer must also inquire into various factors such as:

• whether there was probable cause for the officer to believe the person was under the influence of alcohol or chemical/controlled substance(s).
• whether the person in custody refused, and
• whether the officer properly informed the defendant about the consequences of refusing the chemical test.

Based on the evidence presented, the hearing officer makes a ruling that can either uphold, modify, or overrule the suspension. The department must conduct the hearing within 30 days, and failure to do so results in the suspension being overturned.

In cases where a license suspension imposes significant hardship, individuals whose licenses were suspended for failing a chemical test or refusing one can request alternative relief. Pursuant to Florida Statute §322.271, they can ask the department to grant them a hardship permit, which allows them to drive under specific circumstances. The hearing for this request must occur within 30 days after the petitioner's request. To be eligible for a hardship license, the petitioner must demonstrate that the administrative suspension creates a severe hardship that prevents them from working and supporting their family. Additionally, completing a DUI program or certified driver training course is a prerequisite for obtaining a hardship license.

If dissatisfied with the decision made by an administrative hearings officer, the party has the right to petition the circuit court in their jurisdiction for further review of the administrative record under Florida Statute §322.31. This judicial review is conducted through the process of certiorari, where a circuit court judge thoroughly examines the entire record generated during the administrative suspension review and makes a decision solely based on that record. No new evidence is considered during this review. The petition for appeal under Florida §322.31 must be filed within 30 days in accordance with the Florida Rules of Appellate Procedure. Furthermore, after a decision is announced by the circuit court judge, additional relief can be sought in the Appeals Courts in Florida.

In the state of Florida, the consequences for a second DUI conviction will vary depending on whether it occurs within or outside of five years from the previous conviction appearing on your driving record.

Penalties for a Second DUI Outside Five (5) Years

If the DUI arrest happens outside of the five-year window, the penalties will generally be similar to those for a first DUI, with a few exceptions:

• Incarceration or Jail Time: There is no minimum jail time. The maximum jail time that can be imposed is nine months instead of six months. If there is a Breath or Blood Test result 
• The fines will range from $1,000 to $2,000 instead of $500 to $1,000.
• The installation of an ignition interlock device will be mandatory for one year.

You will not be eligible for a hardship driver's license after the conviction, meaning that any court-imposed license suspension (which can range from six to twelve months) will be served as "hard" time, with no driving privileges whatsoever during the suspension.

While no minimum jail time is required, the prosecutor may seek more than the minimum to resolve the case without going to trial. The most significant consequence of a second DUI conviction that occurs outside of five years is that the driver will not be eligible for a hardship license after a second DUI conviction.

Penalties for a Second DUI Within Five (5) Years

Unless the DUI conviction is avoided, a second DUI arrest that happens within five years of a prior DUI conviction will result in the following statutory minimum requirements:

• Driver License Revocation Period: The court must impose a minimum five-year revocation of your driver's license, with no driving permitted during the first twelve months of the suspension. However, there is a possibility of obtaining a hardship reinstatement after one year.
• Incarceration or Jail Time: A minimum of ten days in jail is mandatory, with 48 consecutive hours of jail time. The maximum period of incarceration is nine months, unless the breath test reading was .15 or higher, or a minor was present in the vehicle, in which case the maximum jail time is twelve months.
• Probationary Term: The maximum probationary period is twelve months.
• Fines: The court must impose a minimum fine of $1,000 and a maximum fine of $2,000. However, if the alcohol reading is .15 or higher, or a minor is in the vehicle, the fine must be between $2,000 and $4,000.
• Community Service: The court is required to impose 50 hours of community service. However, the court may allow the option to buy out a portion of those hours at a rate of $10 per hour.
• Vehicle Impoundment: The court is required to impound any vehicle registered in your name for thirty days. However, the court may waive this requirement if it is shown that a family member has no other means of transportation or if the vehicle is registered as a company vehicle solely used by an employee of the business.
• DUI School: The court must require completion of Level II DUI school, including a substance abuse evaluation and any recommended follow-up treatment.
• Mandatory Ignition Interlock Device: The court must impose the requirement of installing an ignition interlock device for at least twelve months after serving any period of incarceration, or twenty-four months if the alcohol reading is .15 or higher.

After a five-year driver's license revocation, you are not eligible for a hardship license during the first twelve months. However, you may apply for a hardship reinstatement hearing after one year if the following conditions are met: completion of DUI school, remaining in a DUI supervision program for the entire revocation period (failure to comply with treatment or counseling will result in the cancellation of a hardship driver's license), and proving that you have abstained from consuming any alcoholic beverages or controlled substances and have not driven a motor vehicle for twelve months prior to reinstatement.

The Special Case of a Commercial Driver's License (CDL)

For CDL holders, if you plea guilty or no contest to a DUI in a non-commercial vehicle, the DHSMV will impose a permanent administrative disqualification as a consequence of the second DUI plea.  When facing a DUI charge in a commercial motor vehicle, the consequences are serious. Harsh penalties apply, and it's crucial to have an experienced DUI lawyer by your side.

During the period of disqualification from driving a commercial motor vehicle, there are no provisions for obtaining a hardship license for operating any type of commercial motor vehicle, whether it be for business purposes only or employment purposes only.

A little-known statutory section allows law enforcement to seize the vehicle of any person found driving under the influence who's license is currently suspended for a prior DUI. If, at the time of a new DUI offense, the person's driver's license is suspended, revoked, canceled, or is in an equivalent status due to a previous conviction for driving under the influence, the vehicle is subject to seizure and forfeiture under §§ 932.701-932.7062 and can also be subject to liens for vehicle recovery, towing, or storage under § 713.78.  

Law enforcement officers are required to notify the Department of Highway Safety and Motor Vehicles of any impoundment or seizure made for a violation as described above, following the procedures established by the department.

In accordance with this section, when the seizing agency obtains a final judgment granting forfeiture of the motor vehicle, 30 percent of the net proceeds from the sale of the vehicle will be retained by the seizing law enforcement agency. The remaining 70 percent of the proceeds will be used to first pay off any outstanding court costs, fines, and fees. Any remaining balance of the proceeds will then be deposited into the General Revenue Fund for the purpose of providing transportation services to participants of the welfare transition program through local workforce development boards. The court may consider whether the owner's family has alternative means of transportation when making decisions in a forfeiture proceeding under this section.