In Florida, a person is guilty of a DUI if he or she is driving under the influence of any controlled substance to the extent that the person’s normal facilities are impaired. Fla. Stat. Ann. § 316.293 (1)(a) (West 2010). Such normal facilities 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, normally perform the many mental and physical activities of daily life. Id. § 316.1934 (1).
Implied Consent
- Any person operating a motor vehicle within Florida is deemed to have given his or her consent to submit to a urine and/or blood test for the purpose of detecting the presence of chemical and controlled substances. Id. § 316.1932 (1).
- Refusal to submit to testing is a first-degree misdemeanor and can be punished with up to one year in jail. Id. § 775.082(4)(a).
- Operating privileges suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. Id. § 316.1939(1).
- If the death or serious bodily injury results, a chemical test is required, and an officer may use reasonable force if necessary to obtain a blood sample if the driver refuses. Id. § 316.1933 (1)(a).
- The results of any of these tests shall be admissible as evidence in a criminal prosecution, except for the prosecution for possession of a controlled substance. Id. § 316.1932 (1)(a)(1)(b); Id. § 316.1932 (1)(a)(1)(b), (c).
- The driver may request a formal or informal review of the suspension by the department within 10 days of after the date of the suspension. Id. § 316. 2615 (1)(b)(3).
Penalties
- First offense – fine of $500 to $1,000; jail for up to 6 months; license suspension of 180 days to 1 year; 50 hours community service (or possible buyout at $10/hour); 10 day vehicle impoundment/immobilization. Id. § 316.193(2)(a).
- Second offense – fine of $1,000 to $2,000; jail for up to 9 months; mandatory ignition interlock; license suspension of 180 days up to 1 year; mandatory 1 year probation; psychosocial evaluation required; 50 hours of community service (or possible buyout at $10/hour); 10 day vehicle impoundment/immobilization. Id. § 316.193(3).
- Third offense – Fine of $2,000 to $5,000; jail up to 12 months; mandatory ignition interlock; license suspension of 1 year; mandatory 1 year probation; psychosocial evaluation required; 50 hours community service (or possible buyout at $10/hour); and 90 day vehicle impoundment/immobilization. Id. § 316.193(3)(b)(2).
- Third offense (w/i 10 years of second) felony – minimum fine of $2,000, up to $5,000; jail for a period of 30 days to 5 years; mandatory ignition interlock; 10 year mandatory license suspension; mandatory 1 year probation; psychosocial evaluation; 50 hours community service (or possible buyout at $10/hour); and 90 day vehicle impoundment/immobilization. Id. § 316.193(3)(b)(1).
- Fourth offense 3rd degree felony – penalties of up to $5,000 in fines; 5 years in prison, as well as penalties imposed for third offense. Id. § 316.193.
Other Penalties & Penalty Enhancers
- DUI which causes damage to the property or person of another commits a misdemeanor of the first degree. Id. 193(3)(c)(1).
- DUI which causes serious bodily injury to another is a felony of the third degree. Id. § 316.193(3)(c)(2).
- DUI which causes the death of any human being or unborn quick child is a second degree felony. Id. § 316.193(3)(c)(3).
Sobriety Checkpoints
Florida allows law enforcement officials to conduct roadblocks under the Federal Constitution.
- Warrantless temporary roadblock established to find persons driving under the influence, which randomly stops automobiles, can produce constitutionally permissible arrests. State v. Jones, 483 So. 2d 433 (1986).
- A checkpoint is deficient under Jones if it lacks written guidelines, especially with regard to the method for choosing which vehicles are to be stopped. Campbell v. State, 679 So.2d 1168 (1996)
- A delay of less than five minutes per driver was found to be permissible. Cahill v. State, 595 So.2d 258 (Fla. App. 4 Dist. 1992).
Case Law
Shaw v. State, 783 So.2d 1097 (2001) — In prosecution for driving under the influence (DUI), state was required to prove that defendant’s faculties were “impaired,” rather than merely “weakened.”
Sabree v. State, 978 So.2d 840 (2008) — Simply having a drug in the system is legally insufficient to convict defendant of driving while intoxicated (DUI) manslaughter and DUI serious bodily injury, because the state is required to prove beyond a reasonable doubt that defendant was “under the influence” of cocaine.
State v. Tagner, 673 So.2d 57 (1996) – Necessary elements of driving under the influence include actual physical control of vehicle, that defendant was under influence of a controlled substance, and that defendant was affected to extent that his normal faculties were impaired.
State v. Sercey, 825 So.2d 959 (2002) – Prosecution may prove impairment by a controlled substance by using evidence of the presence of the controlled substance in the defendant’s body and/or other evidence of impairment, including erratic driving and the fact that an accident occurred.