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I'm asked on a fairly regular basis to explain the particulars related to DUI and maintaining a driver's license. So I decided to outline it here for you too!
Here in the State of Florida and I'm sure in many other states, the DMV issues citizens the privilege to be a licensed driver if they meet certain criteria and in exchange agreeing that if asked by police the driver will submit to a test of their breath, blood or urine for the purpose of determining the presence of alcohol or other illicit substance in their system. A right is an entitlement as opposed to a privilege which may be denied.  Notice the bottom of the license reads: "Operation of a motor vehicle constitutes consent to any sobriety test required by law." Should you refuse to submit or measure above the legal limit, then your privilege will be revoked until you meet further criteria assuming you qualify.
Let's assume for example that you are arrested (not me ... who would represent you?!) and the officer did everything correct in the process since the fact patterns will otherwise be limitless. Toward this end, all that I WILL suggest is that if an officer is asking you to submit to a test, it's because she already believes that you are impaired. Therefore, any test will be used for purposes of DISPROVING that you are impaired not the converse.
To begin, you've been stopped and asked to submit to Field Sobriety Exercises. You've all heard of them or seen them on TV when someone is standing on one foot or pointing at their nose with their finger. The officer may also ask you to follow the movement of a pen with just your eyes. This is called horizontal gaze nystagmus and measures the reflexes in your eyes which is also theoretically determinative of sobriety. The trouble with these tests is that they are subjective and plenty of perfectly sober people cannot perform them.
If you've had a hip replacement, bad knees or an unresolved concussion (to name a few) you will never pass these exercises. In fact, during one of the trials I had as a prosecutor, I asked the arresting officer to perform the exercises for the benefit of the jury. He failed.
Back to the story, well there you are standing on the side of the road; you either attempt the exercises because you are painfully sober and up for the challenge or you decline the exercises and profess your sobriety while explaining that you veered from your lane because you were reaching for your nicotine patch that fell under the passenger's seat when you were flipping pages in the latest People magazine while reading the latest article about Angelina and Brad to your friend on the cell phone and wouldn't the officer please have mercy?!
Makes no matter, honestly; I've only heard of one person who passed and was permitted to leave the scene. That person ~ my brother; is a former professional soccer player with four percent body fat and a knack for selling igloos to Eskimos. By the way, there are no formal penalties for refusal to take the FSEs.
So, you're cuffed and riding in the back seat of a police car to the station for processing and at some point the officer asks if you will take a breath/alcohol test and if you don't your license will be suspended for 1 year for refusal and you may be criminally prosecuted for a second or more refusal. Now is when you think to yourself: the wine you drank tasted wonderful the first time but all this stress and indigestion really stinks.
What choice should you make? It doesn't matter how sober you feel, you will not fool the machine!
According to Florida Statutes 316.193, DUI occurs when: a person is in "actual physical control of a vehicle" (in the car with the keys is enough, it is NOT necessary to have the engine running) and:
- said person is affected to the extent that his "normal faculties are impaired," OR
- has a greater than .08 blood alcohol level, OR
- has a greater than .08 breath alcohol level.
Notice #1 may be satisfied, regardless of any blood/breath/urine measure. Indeed, you may blow zero and still be charged with DUI. Faculties may be impaired due to drug use or simply because of lack of sleep.
So, let's say you were so drunk you thought you were sober. You blow .140 so the prosecutor may say you were operating while your normal faculties were impaired AND your breath/alcohol content was almost double the legal limit. Your license is automatically suspended for 6 months by the DMV but you have 10 days grace period to file a petition to appeal the suspension in the hope of having it overturned for some legal technicality. Otherwise, you get into an Alcohol Safety Education Course, pay up fines related to the suspension and petition for a business purposes only (hardship) DL. If you are later convicted of the DUI, the court may also suspend your DL however, the duration is contingent on the number of convictions. Then based on the conviction the DMV may further suspend your DL.
If you refuse to take the breath/alcohol test, the prosecutor may say you were operating while your normal faculties were impaired AND you were drunk, you knew it and didn't want the jurors to know it so you refused. Your license will automatically be suspended by the DMV for 12 months with the same opportunities for appeal but you will necessarily be without a license for at least 30 days before your petition for hardship will be heard.
The DMV operates thru a Bureau that is separate and apart from a criminal court and therefore, so is the standard of proof (preponderance of the evidence). It is fairly easy for the DMV to suspend your privilege to drive and upon criminal conviction; the court may likewise suspend or perhaps terminate your privilege. Fortunately, it usually takes the same steps to restore either suspension but it is quite expensive and a lot cheaper to just call a cab.
The suspension of your privilege only applies to a Florida driver's license however; other states often issue reciprocity to offenses taking place out of state. In other words, if you are convicted of a DUI in NY then move to FL (or vice versa), the conviction will appear on your FL DL as 1 of 4 before your license is permanently revoked. If you fail to pay a traffic citation in another state, FL may suspend your driving license until the hold is paid up.
On average a 1st time DUI in the State of Florida costs $2500 plus time and attorney's fees; not to mention risk to life, limb and person.
Arrive Alive: stay sober, call a cab or designate a driver.
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