Driving under the influence (“DUI”) is a serious offense in Florida. There are many consequences to this type of offense; some of which occur outside of the court system itself. Depending on the circumstances of the offense, the penalties can include mandatory probation, mandatory jail time, community service, large fines, the installation of an ignition interlock device, random drug and alcohol testing, substance abuse counseling; as well as having your vehicle impounded for a period of time. DUIs can impact your driver’s license, some professional licenses, and your automobile insurance rates.

Drunk Driving vs. Driving While Impaired

Do not confuse DUI with “drunk driving” or “driving while drunk.” The State does not have to prove that you were “drunk” while you were driving. The State is only required to prove that while you were in driving or in actual physical control of a vehicle; and while doing so, you were “under the influence of alcohol or controlled substances to the extent that your normal faculties were impaired.”

Actual physical control of a vehicle means that you must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether you are actually operating the vehicle at the time.

Again, the State is only required to prove that you are impaired – not drunk. The State can attempt to do this one of two ways. The first is that if you have a blood/breath alcohol level of .08 grams or more. This is usually accomplished through the use of a breath test instrument called the Intoxilyzer; or through a sample of blood taken by a medical professional. This blood sample will be analyzed for all types of controlled substances including illegal drugs and prescription medication. Even if you are taking your lawfully prescribed medication according to its required dosage, you can still be charged with a DUI if the medication affects your ability to operate a vehicle safely.

The second way the State can prove the DUI is by proving that your normal faculties were impaired.  Your “normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of your daily lives. Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). Impairment means that these things were diminished in some material respect. Your normal faculties are all the things which affect your reaction times, decision-making, and the ability to safely operate a vehicle – to not place any passengers or other motorists in danger.

Field Sobriety Exercises

The most common way for law enforcement to determine if someone is operating a vehicle while impaired is to conduct field sobriety exercises (“FSEs”). FSEs are typically conducted roadside at the location where the traffic stop occurs. Each FSE has two components, a verbal component, and a physical performance component. The verbal component aids law enforcement in determining if someone can understand, comprehend, and follow instructions. The physical component is exactly what it sounds like. It tests the person’s normal faculties – their physical abilities to operate a vehicle safely. These tests address reaction times, balance, depth perception, cognitive and active decision making, etc. Even if someone passes the physical component of the FSEs, if they fail the verbal component, law enforcement may arrest them and charge them with DUI.

Field sobriety exercises ARE NOT mandatory.

Law enforcement cannot make someone undergo or perform the exercises. Anyone may politely refuse. There is no legal consequence for doing so; however, in reality, law enforcement will almost certainly arrest you as long as you possess other indicators of impairment such as the odor of alcohol, slurred or thick-tongued speech, red or flushed face, etc.

Breath/Blood testing IS mandatory.

While field sobriety exercises are not mandatory, Florida’s “implied consent” law requires you to submit to breath/blood testing for alcohol. A driver’s license is a privilege, not a right. As part of your driving privileges in Florida, you automatically give consent or permission to have your blood/alcohol tested by an officer if you are suspected of driving under the influence. Refusal to submit to the required testing will result in your driver’s license being suspended for 1 year for the first refusal, and 18 months for a second refusal. A second refusal is also a first-degree misdemeanor and will subject you to additional criminal charges, which are punishable by up to 1 year in jail.


The penalties for DUI can vary greatly. DUI is a “cumulative” or “progressive” offense. The penalties for your first DUI will be for far less than that of your second, third, etc. While the first and second DUI are misdemeanor offenses, a 3rd DUI which occurs within 10 years of your last DUI is a felony offense, which also requires a mandatory 10 year driver’s license revocation. Every 4th DUI or more during the entire course of your lifetime is a felony offense, which in turn requires a mandatory lifetime driver’s license revocation. DUIs require mandatory adjudication of guilt. This means that a DUI could make you a convicted felon, which would cause you to lose your right to vote, possess or carry a firearm, etc.

Range of Penalties for DUI

Jail - 0 days up to 5 years in prison

Probation - 6 months up to 5 years

Driver’s License Revocation - 6 months up to life

Fines - $500 up to $5000

Ignition Interlock - 0 days up to 2 years

Vehicle Impound - 10 days up to 90 days

DUI Manslaughter (DUI Involving Death)

Should you be charged with DUI Manslaughter (DUI which results in the death of someone), you will face a second-degree felony which is punishable by up to 15 years in prison. This charge requires a mandatory minimum sentence of 4 years in prison if convicted. If you are charged with DUI Manslaughter and you left the scene, you will face a first-degree felony which is punishable by up to 30 years in prison.

Even if you have no other criminal history, should the State prove the offense, you will face a range of prison time between 124.5 months and up to 15 years in prison, with a bare minimum sentence of 4 years.

As you can see, the DUIs have serious consequences. It is vital to your defense that you speak with an experienced attorney as soon as possible. Give us a call at 386-269-0440. We are available to you 24 hours a day, 7 days a week.”


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