An arrest for drunk driving can be rough and upsetting. In addition, if you are convicted, you face a possible jail sentence, loss of your driver’s license for at least 6 months, large fines, and other lingering consequences. In addition to criminal penalties, all DUI's are subject to administrative penalties from the Department of Highway Safety and Motor Vehicles (DHSMV).
Once you have been arrested for DUI, you should contact Kissimmee and Orlando DUI Lawyer Don Waggoner as soon as possible so that he may begin the defense of your license and help protect your future. The loss of your driving privileges will affect your ability to get to and from work and to support your family. The sooner you contact me, the sooner I can evaluate your case.
#1 Question I am asked about DUI - If I am stopped and accused of DUI, should I blow into the breathalyzer if asked to do so?
Answer - You have to make that decision at the time. The law in Florida says that when you get your license, you agree to voluntarily take a breath test if asked to do so by law enforcement. Still, you cannot be forced and the choice is yours. If you are really wiped out and way over the limit, I'd say maybe not. If you are not sure or are positive you are not over the limit, I say take the breath test. You may blow under 0.08. The consequences are greater for your license if you do not take the breath test than if you do. Also, if it is your second time refusing, you can be charged with a 2nd degree misdemeanor and do up to 60 days in jail.
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If you have a prior DUI conviction on your record and you are in custody for a second, third, fourth or subsequent DUI, the punishments are greatly increased. Third and fourth DUIs can, and usually are, enhanced to a felony. The State of Florida does not want drunk drivers on its roads and prosecutors will work hard to make certain that you are disciplined and taken off the roads.
If this is your case, then please contact Kissimmee and Orlando DUI Lawyer Don Waggoner immediately. With my assistance, you might be able to avoid the unduly harsh punishments that enhanced penalties carry.
Criminal DUI penalties can increase based on the frequency of DUI convictions and the severity of your current DUI offense. In addition to the criminal penalties for driving under the influence, you are also subject to administrative penalties by the Department of Highway Safety and Motor Vehicles, and to financial and personal collateral consequences. Below are DUI penalty charts for the most common DUI offenses.
Click here to see the DUI Penalty Chart!
GOOD NEWS! In the 9th Judicial Circuit (Osceola & Orange Counties), the State's Attorney's Office offers a Diversion program, whereby first time DUI offenders can avoid a conviction for DUI (but not the DMV administrative suspension). The requirements are essentially the same as the criminal penalties for a first time offender, but upon completion of the diversion program, the charges will be dismissed. Not every first offender will qualify, however. Call me for a consultation and I will explain the program to you.
DUI Driver's License Suspensions
If you are arrested for suspicion of DUI in the state of Florida, and you blow greater than 0.08 on the breathalyzer, or you refuse to take a breathalyzer, (or urine or blood test if requested) your privilege to drive will be suspended or revoked. There are two types of suspension:
- An administrative suspension known as a DHSMV Administrative Suspension, and
- A Criminal Suspension
IMPORTANT! - You have 10 days from the date of your arrest to appeal the DHSMV Administrative Suspension. During those 10 days, you may drive for Business Purposes Only with the ticket you received, until midnight on the 10th day from the date of your arrest. Keep the ticket with you.
DHSMV Administrative Suspension:
The first suspension you receive is an administrative suspension. It is provided for under the Florida Statutes (s. 322.2615) and the administrative rules. It is called administrative because the suspension or revocation is not handed out by a judge. It is governed under the rules the DHSMV promulgates and administered by a clerk. The suspension or revocation lasts 6- 18 months. It happens if
1. You refuse to submit to a breath, urine, or blood test; or
2. You submitted to a breath, urine, or blood test and your blood alcohol level (BAC/BAL) was found to be 0.08 or higher.
If your BAC/BAL was 0.08 or higher or you refused to submit to a BAC/BAL your driver’s license will be suspended for 6, 12, or 18 months from the date of your arrest. As noted above, if your license is suspended for either reason, your ticket acts as a 10 day driving permit that expires at midnight on the 10th day following your arrest.
Administrative Review Hearing
After your arrest, you have only 10 days to request an administrative review hearing. This request is filed with the DHSMV and is to contest the administrative license suspension and get your license back. If you fail to ask for the hearing within these 10 days, your license will be suspended for 6, 12, or 18 months, depending upon the circumstances of your suspension. It is important to contact me within these 10 days to set up this review.
Once you have requested the hearing, the DHSMV will issue you a temporary Business Purpose Only permit good for at least 7 days after the date of the hearing. The hearing will be set approximately 30 days after your arrest. If you win, you get your license back. If you lose the hearing, your license expires at midnight on the expiration date on the temporary permit.
Getting a Hardship License
If the hearing officer upholds your suspension, you may want to apply for a hardship license, also known as a Business Purpose Only (BPO) license. A BPO "is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on the job driving, driving for educational purposes, and driving for church or medical purposes." F.S. 322.272(c)1. You may also drive to court and to visit your lawyer for your DUI case. You cannot drive to the beach, a theme park, a movie, the mall, or other places that are not necessary for everyday life.
To get a BPO you must (1) enroll in the DUI School; (2) wait through the first 30 days of your suspension or, if you refused, 90 days; (3) show proof of enrollment in the DUI School and apply for the BPO at the DHSMV; (4) pay the fee for the license. On rare occasions, DHSMV will refuse to issue a BPO based upon a review of your record and an interview.
A Criminal Suspension is the second suspension you will receive if you are convicted of a DUI. This suspension is separate and independent from the Administrative Suspension. This suspension is imposed by a judge as a result of conviction and its length is based upon statutory requirements. The minimum suspension is 6 months. It begins on the date of your conviction. If you have a BPO in your possession, the judge will take it from you and you may not drive until you get another BPO. YOU MAY NOT DRIVE HOME FROM COURT!!
Although no waiting period will apply, and you will not have to redo the DUI School, you will have to go back to the DHSMV to get another BPO. You will have to pay another fee, but not as much as the first time. However, if you beat the DUI, your license will not be suspended a second time.
Hardship License Eligibility:
The rules governing getting a Hardship License are governed by F.S. 322.2617 and 322.271.
If your license was suspended for refusal to submit to a breath, urine, or blood test, you must wait 90 days (called a 90 day hard suspension) from the date your last temporary permit expired before a new one will be issued.
If you license was suspended because you had an unlawful BAC/BAL above 0.08, you must wait at least 30 days (30 day hard suspension) from the date your last temporary permit expired before a new one will be issued.
If your license was suspended as the result of a DUI accusation, you must enroll in the Department approved DUI course before a permit will be issued, and then you must complete that course within 90 days. You may also be required to place an interlock ignition device on your car before you can get the permit. There are other rules and requirements to fit the various reasons for suspension that can be found in F.S. 322.271.
Driving While License Suspended (DWLS):
Driving While License Suspended (DWLS) is one of the minor misdemeanor traffic offenses that are taken very seriously by the legislature and judges in Florida. A first time DWLS is a 2nd degree misdemeanor, a second offense is a 1st degree misdemeanor, and a 3rd or subsequent one is a 3rd degree felony. Many judges in Central Florida impose at least 30 days in jail for a first time misdemeanor DWLS. This offense should not be taken lightly.
MY ADVICE: Do not drive with a suspended license, and especially if it was suspended as the result of a DUI.
Kissimmee and Orlando Criminal Lawyer Don Waggoner is very experienced in representing persons accused of DWLS. He has been successful at getting habitualized offenders their license back and getting a DWLS reduced to a lesser offense and, thereby, avoiding any jail time. In other words, he has been successful at helping people get their licenses back and getting them back on the road legally. If you are charged with a DWLS, even if it is a non-criminal infraction, let him see if he can help you keep your license or get it back.
There are several types of DWLS offenses:
1. Civil Infraction - happens when your license is suspended and you had no legal knowledge of it. This happens when the license is suspended by the DHSMV and you are stopped within 20 days of this suspension taking effect. It is call DWLS with No Knowledge. When your license is suspended, the DHSMV is required to give you notice. The knowledge that your license is suspended is presumed after 20 days.
A civil infraction is punishable by a fine only. If convicted, it puts 3 points on your license. Three (3) of these convictions can get your license suspended for 5 years. If the infraction is for DWLS without (w/o) knowledge, and you get a withhold of adjudication on it, it does not count towards Habitualization and a 5 year suspension. There is a way to avoid the conviction and the 5 year suspension. Do not just pay this ticket. Ask for a hearing. See an attorney. If you do that, in many cases you can avoid a conviction and a license suspension.
2. Misdemeanor (MM) DWLS Criminal Offense - a first offense is a 2nd degree MM. It is punishable by up to 60 days in jail and a $500.00 fine. It counts towards the three that it takes to get habitualized and a 5 year DL suspension. Do not just plea guilty to this offense. Hire an attorney and let him or her help you avoid a conviction, if possible.
A second offense is a 1st degree MM, punishable by up to 1 year in jail and a $1,000.00 fine. It counts towards the three needed to get habitualized and a 5 year DL suspension. Do not just plea guilty to this offense. Hire an attorney and let him or her help you avoid a conviction, if possible.
A third offense may be a felony, but if the suspension was the result of failure to pay fines or a lapse of insurance, it will be a misdemeanor. It can still be used towards that 5 year suspension.
3. Felony DWLS - DWLS becomes a felony in two cases: a) if you are habitualized, or b) if it is the third or more offense and was not due to fines or a lapse in insurance. If you get convicted of this crime you can get up to 5 years in prison and a $5000.00 fine. Convictions may be used to suspend your license for 5 years. Do not just plea guilty to this offense. Hire an attorney and let him or her help you avoid a conviction, if possible.
How do you become a Habitualized Traffic Offender (HTO) and get your license suspended for 5 years?
Answer: Get any combination of any 3 of the following within a 5 year period:
- 1. Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle
- 2. Any DUI
- 3. Any felony in the commission of which a motor vehicle is used
- 4. Driving while your license is suspended or revoked
- 5. Failure to stop and render aid at a motor vehicle crash resulting in death or personal injury
- 6. Driving a commercial vehicle while that privilege is disqualified
- 7. Fifteen (15) conviction for moving traffic infractions for which points may be assessed
Your license will not be automatically reinstated after the 5 years is up. You must go to DHSMV and get your license reinstated.