I was charged with a 4th DUI in Florida — will I go to prison?
According to the CDC, while about 1.9 percent of adults across the United States admit to driving while under the influence of alcohol, in the state of Florida, that number increases to 2.1 percent. Those who find themselves being arrested for a fourth (or subsequent) Florida DUI likely have a good idea of the trouble they are facing. Each time a person is convicted of a Florida DUI, the penalties and punishments are enhanced; those who test higher than a BAC of 0.15 percent, have a minor in the vehicle, cause an accident which involves others, or cause injury or death because of the level of intoxication will face even greater penalties and punishments. According to the Florida Statute 316.193:
3. Any person who is convicted of a fourth or subsequent violation of this section, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, the fine imposed for such fourth or subsequent violation may be not less than $2,000.
The Serious Consequences of a Fourth or Subsequent DUI Conviction in Florida
This means that your fines will be at least $2,000—and probably closer to $5,000. All other mandatory DUI penalties will apply—and your driver’s license will be revoked for a period of ten years to permanently. If you try to imagine spending the remainder of your life, unable to drive to work or anywhere else, you can see that you absolutely must speak to a knowledgeable Florida DUI attorney as soon as you have been charged. Without a driver’s license you would likely be unable to secure and keep employment, you would be unable to run errands, take your children places they need to go, visit friends and family, or ever take a vacation.
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Avoiding a Fourth DUI Conviction in Florida
If you are convicted of a fourth DUI in the state of Florida, you may end up being classified as a habitual or violent felony offender. Your Florida DUI attorney will want to explore every possible avenue in order to prevent you from receiving a fourth DUI conviction. It could be that the officer really had no valid cause to pull you over, or your attorney may be able to raise issues related to your Breathalyzer or field sobriety tests.
If a blood specimen was taken, your Florida DUI attorney may be able to challenge how that specimen was collected, handled and stored. Perhaps you did not do well on the field sobriety tests because you are elderly, have poor balance, were wearing heels which made it difficult to perform the tests, suffer from vertigo, have vision impairment, were taking prescription drugs, are overweight or suffer from a serious medical condition.
Your criminal defense attorney may also be able to move for post-conviction relief which will essentially “undo” a prior DUI conviction. Of course this will depend on the circumstances surrounding your prior DUI convictions. If you were a minor when you received on of your prior DUI convictions, your DUI attorney may be able to disqualify that conviction, which would make your current charges and potential conviction a third, rather than a fourth and spare you the much harsher penalties associated with a fourth DUI.
Will a Fourth DUI in Florida result in prison Time?
Your most pressing question, if you are facing charges for a Fourth DUI in Florida is whether you will spend time in prison if you are convicted. There is a scoresheet preparation manual, released by the Florida Department of Corrections, which can help those charged with Florida crimes determine how long they could be sentenced to prison in the event of a conviction.
When a person is arrested for a felony crime, that crime is assigned a certain level as a primary offense. The level is then assigned a specific number of points. Should the defendant score above 44 points, they will be sentenced to time in a Florida state prison for a certain number of months.
A 4th DUI offense is a level 6 offense, and a third-degree felony under Florida statute 316.193(2)(b).
Under the scoresheet preparation manual guidelines, a level 6 felony in Florida has 36 points. While this amount is not greater than the 44-point threshold, other points may be added if there are additional offenses, if there is a legal status violation (escape, fleeing, failure to appear, etc.), or if the defendant has a prior serious felony conviction. Therefore, the formula of ____ (number of points for primary offense) – 28 x .75, could look like this for a fourth offense DUI:
36 points + 6 points for a probation violation, 4 points for fleeing the scene, and 30 points for a prior serious felony conviction = 76 – 28 = 48 x .75 = 36 months, or three years in prison for a fourth DUI conviction.
Potential Defenses for DUI Charges
Whether it is your first DUI or you are being charged with a fourth DUI there are defenses your attorney may be able to use in your case. These defenses include the following:
- Bad driving does not necessarily mean drunk driving. Your attorney may have the arresting officer testify you were driving in a manner which was consistent with that of a person driving under the influence of alcohol. (i.e., you were speeding, or crossed the centerline). In fact, the majority of traffic violations and exhibits of bad driving are committed by sober people, therefore traffic violations are not necessarily an indicator of DUI. In the end, your attorney may be able to show the officer had no reasonable cause to believe you were drunk, therefore no reason to stop you in the first place.
- Subjective observation of symptoms of intoxication are far from conclusive. The arresting officer may state you had red eyes and an unsteady gait, therefore you must have been intoxicated. Your Florida DUI attorney may be able to combat the officer’s very subjective observations by showing you suffer from allergies, had a cold, were wearing shoes that made you unsteady, etc.
- The field sobriety tests you took are not an accurate measurement of impairment. Although field sobriety tests are relied on quite heavily, in reality they are far from reliable, and, according to some research are correct less than half the time. Dr. Spurgeon Cole, a researcher at Clemson University, videotaped 21 totally sober people performing the walk-and-turn and the one-leg stand. Fourteen police officers—with a median experience level of 11.7 years—were then asked to review the videotapes and identify those subjects they believed were too drunk to drive. The police officers—all of whom had completed a state-mandated DUI detection training program and had many years of field experience detecting drunk drivers—identified a full 46% of the stone-cold sober drivers as being too drunk to drive. Performance on a field sobriety test can be linked to nervousness, natural physical coordination (or lack of), fatigue, illness, constricting clothing, high-heeled shoes, prescription medications or an inner ear infection.
- The Breathalyzer test was not accurate. There are many, many issues associated with Breathalyzer tests, including certification of the officer, certification of the machine, calibration of the machine, and a whole host of issues associated with the person taking the test. Acid reflux can affect the test results, or the police officer may not have conducted a proper fifteen-minute observation period. The suspect may have used mouthwash, breath spray or lip ointment which affected the Breathalyzer results negatively. The suspect may have been engaged in an activity which exposed them to gas or vapors prior to taking the test—painting, varnishing, or other activities which expose the person to chemical exposure such as plastics and adhesives. This can result in a falsely high Breathalyzer test result. Peer-reviewed (and uncontested) studies prove a margin of error of 50% when comparing Breathalyzer estimates of blood alcohol content to actual blood alcohol content.
- The arresting officer failed to follow proper procedures. This could mean the officer did not have probable cause for your stop or arrest, failed to read you your Miranda rights prior to your interrogation or improperly obtained evidence.
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How an Experienced Florida DUI Attorney Can Help
If you are facing a 4th DUI, you absolutely need solid legal representation. The Florida DUI attorneys at The Law Place can offer just that. We have the skills and knowledge necessary to challenge your charges with a goal of the best outcome possible. We will work hard to prevent you from spending time in prison due to these charges, and will zealously fight for your rights.
Florida Sample Criminal Sentencing Guideline
The Law Place has created an interactive sentencing guideline that can be found HERE.