For most, a DUI arrest can be an incredibly stressful event. Fortunately, there is much that can be done to mitigate the impact of a DUI charge, particularly when the accused person has no prior DUI convictions,
Do I Need an Attorney?
Hiring an experienced St. Petersburg/Clearwater area DUI defense attorney can be of tremendous benefit. Having practiced criminal defense throughout the Tampa Bay area, and beyond the the state of Florida, I can tell you that each county, and each courtroom, has its own culture. Certain judges prefer things done a certain way. Some, for example, will allow probation to terminate sooner than others. Some are o.k. with community service hours being bought out by the client, whereas others are not. Some require the accused person's attendance at pre-trial hearings, whereas others do not. Having a DUI attorney on your side, who is well versed in Florida law, accustomed to the practices and preferences of your particular judge, and has a good working relationship with the State Attorney's Office, is an important first step in navigating the DUI mine field.
What is the 10 day rule regarding my license suspension?
This potential suspension is administrative in nature and the associated proceedings are through the department of motor vehicles, as opposed to the criminal court system. If you are arrested for DUI, and you submitted breath (or blood, where the request is appropriate) samples of .08 or higher, or you refused a chemical test of your breath (or blood), the arresting officer will issue you a notice of suspension and take your driver's license. You have ten days to request a hearing with the department of motor vehicles. When the request is correctly made within that 10 day time frame, the department will issue you a permit to drive (on a restricted basis) until a hearing on the propriety of the administrative suspension can be held. If the driver (or his or her attorney) is successful in having the administrative suspension set aside, there is no administrative suspension and the person can immediately reinstate his or her driving privileges. If the driver is not successful, he or she will be subject to an administrative suspension. For a first DUI, where the person submitted to a lawful test, the period of suspension is 6 months, with a 30 day hard suspension. This means that the person cannot drive for 30 days once the suspension becomes effective. At the end of that 30 day period, he or she can apply for a hardship license for the duration of the 6 month suspension. If the person is not successful at the hearing, and refused to submit to a lawful test, the period of suspension is one year, with 90 days hard. If the person refused, and has a prior refusal, the period of suspension is 18 months, with no provision for a hardship license. For a second time DUI, the person can obtain a hardship license, after the period of hard suspension is served, until the case is resolved in court (as long as the pending offense is not a refusal, and the person does not have a prior refusal)
As of July 1st, 2013, for a first time offense, the person may waive the formal review hearing and request a determination of eligibility for a hardship license, whether he or she submitted to a lawful test, or refused. If approved, the person is required to drive on a restricted license, but there is no period of hard suspension.
Do I need to go the arraignment or to the pre-trial conferences?
When you are issued a citation, you will see a court date written somewhere near the bottom. This is your arraignment date. The purpose of the arraignment is to formally advise you of the charges against you and have you enter a plea. The plea options are "no contest", "guilty", or "not guilty". If you have an attorney, that person will enter a written plea of not guilty on your behalf. This waives arraignment hearing, which means neither the attorney or the client attend. The case will thereafter be set by the clerk of court for what is called a pre-trial conference. If your case is pending in South County Traffic Court (in St. Petersburg) or North County Traffic Court (in Clearwater), your attorney will attend your pre-trial conferences without you having to be there. You will not typically go to court until it is time to either try the case before the judge (at a bench trial) or resolve the case by way of a plea. There are no jury trials available in South or North County Traffic Court. If you want a jury trial, you must transfer your case to the criminal justice center on 49th Street (in Clearwater).
If your case is pending at the criminal justice center, your attendance at pre-trial conferences may or may not be required, depending on your judge. This is an example of where it is helpful to have an experienced DUI defense attorney who is familiar with the court's preferences.
As part of the written plea of not guilty, your attorney will usually demand discovery from the state. This triggers the state's obligation to provide you with all of the evidence it has against you, including a witness list, a copy of the police report, a copy of any video and/or audio recordings, witness statements, and to disclose the existence of any evidence that tends to negate your guilt.
Should I begin working on my required conditions of sentence?
In most instances, this is a good idea. If you are planning to waive a formal review hearing in the administrative license suspension proceeding, and seek hardship license immediately, the Department of Motor Vehicles will require you to enroll in DUI school as a condition precedent.
In addition to the administrative license suspension, there will almost always be a court imposed suspension. For first time DUI offenders, the court imposed suspension is anywhere from 6 months to 1 year, but usually the court will impose only a 6 month period of suspension. If you have no prior DUI convictions, you can obtain a hardship license on the court imposed suspension as long as you have completed the DUI School, undergone an alcohol evaluation, and at least enrolled in treatment if it is recommended. You should know that the court imposed suspension does not go into effect unless and until you are found guilty after trial, or enter a plea of guilty or no contest.
Also, most judges will allow your probation to terminate early once all conditions are satisfied. Most judges will allow a termination of probation at the half way point, but you can usually terminate even sooner than that if your case is pending in South or North County Traffic (and all conditions are complete).
What are some of the defenses that may be available to me?
One of the first things your attorney will do is determine whether the arresting officer had reasonable suspicion to stop you in the first place. Just because you are alleged to have committed a traffic infraction, for example, does not mean that you actually did. Sometimes, the video recording can be used to refute assertions of a traffic infraction, which is why it is important to carefully examine all of the evidence. If the initial stop was unlawful, any evidence obtained incident to that stop is suppressible. If the court suppresses critical evidence, including field sobriety test performance (where the accused agreed to perform field sobriety tests) or evidence of a breath test (or refusal), the state will not likely be in a position to proceed and the charge will be dropped.
Your attorney will also want to look at whether the officer had probable cause to make an arrest, following the observations he or she purportedly made after the traffic stop was initiated. A lack of probable cause to make the arrest may also result in the suppression of evidence that the state would need to proceed with prosecution.
Your attorney will next examine the circumstances under which any incriminating statements were made. As a general principle, a police officer is not required to read Miranda warnings in a road side traffic stop scenario. There often comes a point, however, when your rights do need to be read before any questioning can occur. Were your rights read? Were they read properly? Were your statements in any way coerced? While a Miranda violation will result only in the suppression of statements, it should still be explored in conjunction with other potential defense strategies.
In some instances, a person's field sobriety test performance will appear inconsistent with impairment. If the person performs well, and refused to submit to a breath test (or blew below the legal limit) the attorney may request a reduction in charge or may discuss, with the client, taking the case to trial. Where the person blows above a 0.08, the attorney may want to have an expert perform what is called a "retrograde extrapolation", which estimates the persons blood alcohol level at the time of driving (which is usually a couple of hours before the breath or blood test is performed). In some instances, the person's blood alcohol level may be below the legal limit at the time of driving (even though it was above the legal limit at the time breath or blood sample was given). This is another scenario where the person and his or her attorney may want to propose a reduction in charge to the prosecutor, or consider taking the case to trial.
In Florida, a DUI offense can be enhanced based on a person's number of prior convictions. This can mean an increase in the applicable penalties but can also result in what would otherwise be a misdemeanor being prosecuted as a felony. Your attorney will look to the circumstances of the purported priors to assess their viability as predicates for enhancement. For example, a prior DUI conviction that resulted from an un-counseled plea (entered without legal representation), cannot be used to enhance.
What are the potential penalties for a DUI?
By law, DUI offenses require the court to impose an adjudication of guilt upon the entry of a plea, or a finding of guilt by a judge or jury. There is no withholding of adjudication in DUI cases. Some jurisdictions offer diversion programs for first time DUI offenders wherein successful completion results in either a dismissal or a reduction in charge. Pinellas County is not one of those jurisdictions.
All DUI offenses require the imposition of a fine and court costs, which range from about a $1,000.00 (for a first time DUI offense) to over $4,500.00 (for a third DUI offense inside of 10 years where the person's blood alcohol level is .15 BRAC or higher). All DUI offenses will require the completion of DUI School, an alcohol evaluation, and treatment (if recommended). With the exception of a first time DUI, where the blood alcohol level is below a .15, the person will be required to have an ignition interlock device installed in his or her car, from six months to two years, depending on the number of priors or the person's blood alcohol level. The person will also be subject to a court imposed license suspension, which is separate and apart from the administrative suspension referenced above. The court imposed suspension can be anywhere from six months to permanent, depending on the number of priors. For first time DUI offenders, a hardship license is available. There is no provision for a hardship license for a second time DUI offense (regarding the court the court imposed suspension).
For most DUI offenses, jail time is not required. For a second conviction within five years, however, there is a mandatory 10 day jail requirement. For a third offense within ten years, there is a mandatory 30 day jail requirement. A third DUI within ten years, or a fourth DUI offense in a lifetime, constitutes a felony offense in Florida, so the accused person may also be facing state prison time based on Florida's sentencing guidelines.
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