Third DUI Offense in Florida

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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 convictions on your record, you can expect to face more severe penalties for a third DUI offense. The specific consequences you'll face for a third DUI conviction will depend on whether it occurred "within 10 years of a prior conviction" or "outside of 10 years of a prior conviction."

As is the case with any DUI arrest, your first course of action after being arrested for a third 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 third 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 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 third 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 third conviction for driving under the influence (DUI), the State must establish two crucial elements beyond a reasonable doubt. For a felony conviction on a charge of Third DUI Within 10 Years, the State must further prove the prior convictions to a jury 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 third DUI within 10 years, the State has the added burden of proving your prior conviction to the jury.  To do so, they will rely upon the driving record and certified convictions from the priors, combined with a custodians of record and fingerprint analysts. 

Defenses to DUI

Defending a DUI requires specialized knowledge and skill as a litigator. There exist many defenses which can be explored on our DUI DEFENSES IN FLORIDA, page. It is one of the most advanced areas of litigation involving challenges to technology, procedure, and law, depending on what is revealed during discovery. Extensive articles highlighting various defenses can be found here. In order to narrow down possible defenses in your case, set up a consultation with one of our criminal defense attorneys in either Broward, Miami-Dade, or Palm Beach County.

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 third 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 third 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 or subsequent 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 is 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.

The length of driver license revocation for a third DUI offense depends on whether it occurred within ten years of a prior conviction. If it is within the ten-year period, the minimum revocation period is ten years, and after two years, there may be eligibility for a hardship reinstatement. If the third offense is outside the ten-year period, the same revocation period as a first DUI applies.

Upon discovering the third DUI conviction within ten years of any prior conviction, the DHSMV will issue an order of license revocation. This order will provide details such as the offense date, conviction date, county, and case number.

The order states that a hardship license cannot be issued until two years after the revocation period begins. At that point, an ignition interlock device must be installed in the vehicle according to Section 322.16(1)(a) and (b).

Additionally, a notice will be received requiring the purchase and provision of FR44 Certification of Insurance, which includes bodily injury liability and property damage liability coverage. The minimum coverage amounts are $100,000 / $300,000 / $50,000 or combined single limits of $350,000, and it must be maintained for three years from the date of financial responsibility suspension.

To avoid a $250 reinstatement fee, the FR44 form must be provided before the FR suspension date, if eligible.

HARDSHIP LICENSE

If the third DUI is outside 10 years, then the individual will not be eligible for hardship during the period of suspension. However, for a third DUI within ten years, that person will not be eligible for a period of 24 months. 

If approved for a hardship license, the FR44 must be obtained before reinstatement.

For individuals convicted of a third DUI within ten years of a prior conviction, the driver license privilege may be reinstated for business or employment purposes.

To apply for hardship privileges during the ten-year revocation period, the driver must not drive for any reason for two years, complete DUI school, remain in the DUI supervision program, abstain from alcohol and controlled substances for 12 months prior to reinstatement, and install the mandatory ignition interlock device for two years.

In the state of Florida, the consequences for a third 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 Third DUI Outside Ten (10) Years

If a third DUI offense occurs outside of the ten-year period, it is considered a first-degree misdemeanor offense under Florida law. The court is required to impose the following mandatory minimum requirements, unless the conviction is avoided:

• Incarceration or Jail Time: The maximum imprisonment period is 12 months.
• Terms of Probation: The probation period can be up to 12 months.
• Fine: The minimum fine is $2,000, with a maximum of $5,000. If the blood alcohol level (BAL) is .15 or higher, or if there is a minor in the vehicle, the fine will not be less than $4,000.
• Vehicle Impoundment: Unless the defendant's family does not have any other means of transportation, the vehicle will be impounded for 90 days. However, the impoundment cannot occur at the same time as the jail time, except if the vehicle is exclusively operated by the defendant's employees or for business purposes.
• Driver License Revocation Period: The minimum revocation period is 180 days, with a maximum of one year.
• DUI School: The defendant must complete Level II DUI school, which includes a substance abuse evaluation. Any recommended follow-up treatment must also be completed.
• Mandatory Ignition Interlock Device: The defendant must install an ignition interlock device in their vehicle for at least two years.

Often, there are non-mandatory conditions the court may choose to impose but are very common. These include a Mother's Against Drunk Driving (MADD) program called the "Victim Impact Panel." Another common condition may be a transdermal alcohol detector (TAD).

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 third DUI conviction that occurs outside of ten years is that the driver will not be eligible for a hardship license after a second DUI conviction.

Penalties for a Third DUI Within Ten (10) Years

If a third DUI offense occurs within ten years of the second DUI, it is considered a felony DUI offense under Florida law. The court is required to impose the following mandatory minimum requirements, unless the conviction is avoided:

• Jail: Mandatory imprisonment of at least 30 days, with at least 48 hours served consecutively.
• Fine: Not more than $5,000, unless the blood alcohol level (BAL) was .20 or above or a minor was in the vehicle. In those cases, the fine will range from $2,000 to $5,000.
• Vehicle Impoundment: The vehicle will be impounded for 90 days.
• Driver License Revocation Period: If both prior DUI convictions occurred within a 10-year period, the driver's license will be revoked for at least 10 years. If at least one of the prior DUI convictions occurred within five years, the revocation period will be at least five years.
• Hardship Reinstatement: The driver may be eligible for a hardship reinstatement after two years if they have not consumed any alcoholic beverages or controlled substances, have not driven a vehicle for the 12 months prior to reinstatement, have completed DUI school, and remain in the DUI supervision program for the remainder of the revocation period. If at least one of the prior DUI convictions occurred within five years, the driver may be eligible for a hardship reinstatement after 12 months.
• Level II DUI School: The driver must complete three days of classroom instruction, undergo a substance abuse evaluation, and complete any recommended follow-up treatment.
• Mandatory Ignition Interlock Device: The driver must install an ignition interlock device in their vehicle for at least two years.

It is important to note that these are the mandatory minimum requirements, and the court may impose additional penalties at their discretion.

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.