Law Offices of Robin C. Lemonidis. - Florida DUI / DWI Law

Practice Areas > DUI / DWI > DUI / DWI

May I refuse to take a breath, blood, or urine test if requested to submit to one by a law enforcement officer?
By accepting the privilege extended by the laws of this state to operate a motor vehicle, and upon your arrest for DUI or any DUI-related crime, you are deemed to have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining the alcoholic content of your blood, and to a urine test for the purposes of detecting the presence of drugs. However, you may refuse to take such tests -- unless you are involved in an accident involving serious bodily injury or death to another human being.

Refusing such tests, though, is not without its consequence. Florida law permits the motor vehicle department to suspend your privilege to drive if you refuse the breath test, or if you take the breath test and blow over the .08 legal limit. Additionally, your refusal to submit to a test upon the lawful request of a law enforcement officer is admissible in any criminal proceeding against you as evidence of your consciousness of guilt.

Am I entitled to a blood test?
Yes, but you must ask for it at the time of your arrest, and must pay for it yourself. If you request it but are not given the opportunity to obtain a blood test in a reasonable amount of time, the breath test may be excluded from evidence in your case.

Isn't it true that the police will take away my license if I am arrested for DUI?
Yes, a law enforcement officer may seize your drivers license if you are arrested for DUI with an unlawful blood alcohol level or after you refused to submit to a breath, blood, or urine test. The officer will seize your license and issue you a traffic ticket, which acts as both a temporary drivers license and as your notice of suspension. This ticket is your license for 30 days after your arrest (even though many of the tickets say it is valid for 7 days in the small print on the back. The law has changed since those tickets were printed.) YOU MUST GO TO THE DEPARTMENT OF MOTOR VEHICLES DRIVER IMPROVEMENT OFFICE WITHIN 10 DAYS OF THE DATE OF YOUR ARREST TO REQUEST A FORMAL HEARING TO CONTEST THE SUSPENSION OF YOUR DRIVERS LICENSE, OR YOU LOSE THE RIGHT TO DO SO. If you do not request a hearing, the suspension will begin on the 31st day after your arrest.

Is there any mechanism for challenging this suspension?
Yes. You may request a review of the drivers license suspension by the department of motor vehicles within a specified number of days following your arrest. If you fail to request a review hearing, the department will not conduct any type of review of the license suspension. At a formal review, the hearing officer is authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. Both you and the department may subpoena witnesses to attend. If you request an informal review hearing, it shall consist solely of an examination by the department of the written materials submitted by the arresting officer, as well as anything you wish to submit. You may not attend such an informal hearing.

When do these suspensions take effect?
The administrative suspension period begins as of the date of your arrest. If you are convicted of DUI, another mandatory 6 or 12 month suspension begins on the date of conviction.

Doesn't this law allow the state to suspend my license before any kind of trial begins?

I thought criminal law required a hearing or trial before they could sentence an individual dual?
While imposing criminal penalties against an individual requires certain safeguards before punishment, remember that driving a motor vehicle is a privilege, not a right. Because it is a privilege, the state may withdraw that privilege if it has lawful grounds to do so. As such, there is a much less stringent level of protection afforded to the driver.

If I am suspended, for how long do I lose my license?
If you have refused to submit to a lawful breath, blood, or urine test, your driving privilege will be suspended for a period of one (1) year for a first refusal, or for 18 months if you have previously refused to submit to such a test. If you have an unlawful blood alcohol level, your driving privilege will be suspended for a period of six (6) months for a first offense, or for one (1) year if your driving privilege has been previously suspended for this reason. You are eligible for a business purpose or hardship license after serving 90 days of ãhard suspension,ä if you refused the breath test, providing this is your first offense. You may be eligible for a hardship license if you have up to one previous conviction. If you have two previous convictions, you are not eligible for a hardship license at all. You are eligible for a hardship license after 30 days hard suspension if you took the breath test, provided you do not have two prior convictions.

If I am not guilty of the criminal charges, do I get my
license back?
No. Even if you are successful defending your DUI in criminal court, that disposition does not affect the administrative license suspension hearing conducted by the Department of Motor Vehicles.

Are there mandatory jail provisions for violating the DUI laws?
Yes. A second arrest (which leads to conviction) within five years of a prior conviction requires a minimum term of imprisonment of 10 days. For a third DUI arrest (again, which leads to conviction) within 10 years of a prior conviction, the minimum imprisonment term is 30 days.

Will my insurance rates go up if I am convicted?
Yes, your insurance rates are likely to rise a great deal, even if you are convicted of a lesser charge. It seems that the arrest itself causes insurance rates to rise.

What is the best way to avoid getting a DUI?
Designate a driver, call a cab, walk . . . but no matter what, do not drive under the influence of alcohol or drugs!

What would the prosecutor have to prove for me to be convicted of DUI?
First, the prosecutor has to show that you were driving or in actual physical control of a vehicle. The term actual physical control is tricky. It allows you to be convicted of DUI even if you weren't driving! For example, people who are passed out or asleep in their parked car can still be considered in actual physical control if the keys are inside the car with them.  (If you ever do need to sleep in your car while you're drunk, make sure to put your keys somewhere outside of the car).

Next, the prosecutor must show that your normal faculties were impaired. (normal faculties are the ability to walk, talk, judge distances,  drive an automobile, act in an emergency situation, and generally carry out the tasks associated with our daily lives.) The prosecutor has two ways to do this. He or she can try to prove that you were under the influence of alcohol or a chemical substance when you were driving, and that your normal faculties were impaired. Alternatively, the prosecutor can try to demonstrate that you had a blood alcohol level of 0.08. Having a blood alcohol level of 0.08 creates a presumption of impairment, and the defense has the burden to prove that your normal faculties were not impaired.

As you can imagine, that's an extraordinarily difficult presumption for the defense to rebut, especially if you did poorly on the field sobriety test. That's why defense attorneys recommend that people not take sobriety tests unless they feel they are indeed in control of their faculties. By not taking a sobriety test, you force the prosecutor to prove that you were intoxicated.

Read the Florida Statute on DUI