Second DUI Offense Florida

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If you’ve recently been arrested in Fort Lauderdale, Miami, or Palm Beach or driving under the influence (DUI) and you already have a previous DUI conviction on your record, you can expect to face more severe penalties for a second DUI offense.  The specific consequences you'll face for a second DUI conviction will depend on whether it occurred "within 5 years of a prior conviction" or "outside of 5 years of a prior conviction." Our dui defense attorneys in Fort Lauderdale serve all of South Florida and are standing by to start fighting for you.  

As is the case with any DUI arrest, your first course of action after being arrested for a third DUI is to consult with a skilled DUI lawyer who can guide you through the legal process and help you address any pending license issues with the DHSMV. Unlike a first offense DUI, you are not eligible for a hardship license when a suspension is for a second DUI. The only and best defense to license suspension is to request a formal review within the first ten (10) days of your arrest. It is crucial to act swiftly and retain a DUI lawyer in order to plan a defense against the DHSMV’s actions.

At The Law Office of Sean Clayton, PA, our team of committed lawyers specializes in providing strong defense for DUI cases in Fort Lauderdale, Miami, and West Palm Beach. Our main goal is to achieve the best possible outcomes for our clients, often resulting in the complete dismissal of charges or reduction to the lesser offense of reckless driving. 

Additionally, we offer invaluable guidance to our clients throughout the administrative DHSMV proceedings, advising them on strategies that may increase their chances of a favorable resolution. Ultimately, our aim is to assist our clients in minimizing the long-term consequences associated with a DUI charge.

Following a DUI arrest in Fort Lauderdale, or anywhere in South Florida, you will face two types of cases. The first is an administrative case with the DMV (Florida Department of Highway Safety and Motor Vehicles, or DHSMV), which focuses on the suspension of your driver's license. The second is the criminal case, which takes place in the courts. Our DUI lawyers have extensive experience handling both types of cases throughout South Florida and can provide guidance on the best course of action for you.

We encourage anyone accused of a third DUI to consult with an attorney early in the process. To aid in deciding which attorney to hire, consider reading our Tips for Selecting a DUI Attorney.

In order to secure a DUI conviction, the State must establish two critical elements beyond a reasonable doubt.

First, they must prove that the defendant either operated a vehicle or was in “actual physical control” (meaning they had the immediate ability to operate) of a vehicle. This includes situations where the defendant was found inside or on the vehicle with the keys in the ignition, even if their intention was merely to sleep off the effects of alcohol. However, if the vehicle was inoperable at the time of the alleged offense, the defense of inoperability may be invoked.

The second element pertains to the defendant’s impairment resulting from the consumption of alcoholic beverages, chemical substances, or controlled substances. This impairment can be demonstrated in two ways: either by showing that the defendant’s normal faculties were impaired, or by establishing that their blood or breath-alcohol level exceeded the legal limit of 0.08 grams of alcohol per 100 milliliters of blood or 210 liters of breath.

To assess impairment of normal faculties, law enforcement often administers field sobriety exercises. These tests are designed to detect minor slips, slurs, or missteps that may indicate impairment. Although officers claim that these exercises are not strictly pass/fail, they are trained to scrutinize any perceived mistakes made by the defendant.

The term “normal faculties” encompasses a wide range of abilities, including vision, hearing, mobility, speech, judgment, driving skills, decision-making during emergencies, and the performance of various mental and physical tasks in our daily lives. It may seem surprising, but police rely on these roadside assessments to determine a person’s impairment. Additionally, it’s crucial to note that any actions or statements made by the defendant while in the back of the patrol car, including falling asleep, are recorded and can be used as evidence against them during trial.

In the case of a second DUI, the State has the added burden of proving your prior conviction to the Judge for purposes of sentencing.  For purposes of sentencing, any prior conviction within the State of Florida, for similar crime outside the state, or for Boating Under the Influence (BUI) counts as a prior. Most of the time, a prosecutor will rely on Florida Statute §316.193(12) and use a DUI entry in your driving record to create a rebuttable presumption regarding priors. 

Mounting a DUI defense demands in-depth technical expertise and litigation skills. It stands as one of the most diverse areas of legal practice, encompassing challenges related to technology, procedural intricacies, and legal principles—each contingent on the revelations during the discovery process.  To narrow down potential defenses in your specific case, consider scheduling a consultation with one of our experienced DUI lawyers in Fort Lauderdale. Our services extend to clients in Broward, Miami-Dade, and Palm Beach County 

In the state of Florida, a second or subsequent DUI suspension renders you ineligible for a hardship license for a period of 12 months.  As such, the only logical step is to challenge the administrative suspension.  You only have ten (10) days to request review from the Department of Highway Safety and Motor Vehicles (DHSMV), so the clock is ticking. For DUIs in Fort Lauderdale and Palm Beach, the nearest DHSMV Bureau of Administrative Review (BAR) is on Oakland Park Blvd. Miami's nearest BAR is on Flagler Street in Miami.

Florida offers two avenues for challenging a DUI administrative suspension. The first is informal review and second if formal review.

During the informal review process, a hearing officer carefully assesses all evidence provided by the police officer, including the necessary documentation. The driver also has the opportunity to submit any additional information they believe is relevant for the department's consideration. Within 21 days, the department must issue a decision and inform the driver as per §322.615(5). The department has the authority to uphold, modify, or overturn the officer's suspension decision. If the hearing officer denies the driver's petition, they have the option to pursue a formal review of the license suspension decision.

In the formal review process outlined in Florida Statute §322.615(6)(b), a designated hearing officer acts as a judge. This hearing officer possesses various powers, such as the ability to administer oaths to witnesses, issue subpoenas, receive evidence, make credibility determinations, and ultimately render a decision. It is the responsibility of the driver requesting the hearing to arrange witnesses and coordinate subpoena service with the state's attorney's office in the circuit court jurisdiction.

The scope of the hearing officer's review is restricted by Florida Statute §322.615(7). They can only inquire about specific matters depending on the circumstances, including whether the person had a BAC of 0.08% or above, whether the arresting officer had probable cause to believe the arrested person was driving under the influence, and whether the person refused alcohol/chemical/controlled substance testing. If the driver refused a alcohol/chemical/controlled substance testing, the hearing officer must also inquire into various factors such as:

whether there was probable cause for the officer to believe the person was under the influence of alcohol or chemical/controlled substance(s).

whether the person in custody refused, and

whether the officer properly informed the defendant about the consequences of refusing the chemical test.

Based on the evidence presented, the hearing officer makes a ruling that can either uphold, modify, or overrule the suspension. The department must conduct the hearing within 30 days, and failure to do so results in the suspension being overturned.

In cases where a license suspension imposes significant hardship, individuals whose licenses were suspended for failing a chemical test or refusing one can request alternative relief. Pursuant to Florida Statute §322.271, they can ask the department to grant them a hardship permit, which allows them to drive under specific circumstances. The hearing for this request must occur within 30 days after the petitioner's request. To be eligible for a hardship license, the petitioner must demonstrate that the administrative suspension creates a severe hardship that prevents them from working and supporting their family. Additionally, completing a DUI program or certified driver training course is a prerequisite for obtaining a hardship license.

If dissatisfied with the decision made by an administrative hearings officer, the party has the right to petition the circuit court in their jurisdiction for further review of the administrative record under Florida Statute §322.31. This judicial review is conducted through the process of certiorari, where a circuit court judge thoroughly examines the entire record generated during the administrative suspension review and makes a decision solely based on that record. No new evidence is considered during this review. The petition for appeal under Florida §322.31 must be filed within 30 days in accordance with the Florida Rules of Appellate Procedure. Furthermore, after a decision is announced by the circuit court judge, additional relief can be sought in the Appeals Courts in Florida.

In the state of Florida, the consequences for a second DUI conviction will vary depending on whether it occurs within or outside of five years from the previous conviction appearing on your driving record.

Penalties for a Second DUI Outside Five (5) Years

If the DUI arrest happens outside of the five-year window, the penalties will generally be similar to those for a first DUI, with a few exceptions:

• Incarceration or Jail Time: There is no minimum jail time. The maximum jail time that can be imposed is nine months instead of six months. If there is a Breath or Blood Test result 
• The fines will range from $1,000 to $2,000 instead of $500 to $1,000.
• The installation of an ignition interlock device will be mandatory for one year.

You will not be eligible for a hardship driver's license after the conviction, meaning that any court-imposed license suspension (which can range from six to twelve months) will be served as "hard" time, with no driving privileges whatsoever during the suspension.

While no minimum jail time is required, the prosecutor may seek more than the minimum to resolve the case without going to trial. The most significant consequence of a second DUI conviction that occurs outside of five years is that the driver will not be eligible for a hardship license after a second DUI conviction.

Penalties for a Second DUI Within Five (5) Years

Unless the DUI conviction is avoided, a second DUI arrest that happens within five years of a prior DUI conviction will result in the following statutory minimum requirements:

• Driver License Revocation Period: The court must impose a minimum five-year revocation of your driver's license, with no driving permitted during the first twelve months of the suspension. However, there is a possibility of obtaining a hardship reinstatement after one year.
• Incarceration or Jail Time: A minimum of ten days in jail is mandatory, with 48 consecutive hours of jail time. The maximum period of incarceration is nine months, unless the breath test reading was .15 or higher, or a minor was present in the vehicle, in which case the maximum jail time is twelve months.
• Probationary Term: The maximum probationary period is twelve months.
• Fines: The court must impose a minimum fine of $1,000 and a maximum fine of $2,000. However, if the alcohol reading is .15 or higher, or a minor is in the vehicle, the fine must be between $2,000 and $4,000.
• Community Service: The court is required to impose 50 hours of community service. However, the court may allow the option to buy out a portion of those hours at a rate of $10 per hour.
• Vehicle Impoundment: The court is required to impound any vehicle registered in your name for thirty days. However, the court may waive this requirement if it is shown that a family member has no other means of transportation or if the vehicle is registered as a company vehicle solely used by an employee of the business.
• DUI School: The court must require completion of Level II DUI school, including a substance abuse evaluation and any recommended follow-up treatment.
• Mandatory Ignition Interlock Device: The court must impose the requirement of installing an ignition interlock device for at least twelve months after serving any period of incarceration, or twenty-four months if the alcohol reading is .15 or higher.
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After a five-year driver's license revocation, you are not eligible for a hardship license during the first twelve months. However, you may apply for a hardship reinstatement hearing after one year if the following conditions are met: completion of DUI school, remaining in a DUI supervision program for the entire revocation period (failure to comply with treatment or counseling will result in the cancellation of a hardship driver's license), and proving that you have abstained from consuming any alcoholic beverages or controlled substances and have not driven a motor vehicle for twelve months prior to reinstatement.

For CDL holders, pleading guilty or no contest to a DUI in a non-commercial vehicle results in a one-year administrative disqualification as a consequence of the first DUI plea. A second or subsequent DUI conviction will permanently render the driver ineligible to operate a commercial motor vehicle.

During the disqualification period for driving a commercial motor vehicle, there are no provisions for obtaining a hardship license to operate any type of commercial vehicle, whether it’s for business purposes or employment.

Under a little-known statutory section, law enforcement has the authority to seize the vehicle of any individual found driving under the influence (DUI) whose driver’s license is currently suspended due to a prior DUI conviction. If, at the time of a new DUI offense, the person’s driver’s license is suspended, revoked, canceled, or is in an equivalent status due to a previous conviction for DUI, the vehicle becomes subject to seizure and forfeiture under Florida Statute §§932.701-932.7062 & Florida Statute §322.34(9)(a). Additionally, the vehicle can also be subject to liens for vehicle recovery, towing, or storage under Florida Statute §713.78.

Law enforcement officers are required to notify the Department of Highway Safety and Motor Vehicles of any impoundment or seizure made for a violation as described above, following the procedures established by the department.

In accordance with this section, when the seizing agency obtains a final judgment granting forfeiture of the motor vehicle, 30 percent of the net proceeds from the sale of the vehicle will be retained by the seizing law enforcement agency. The remaining 70 percent of the proceeds will be used to first pay off any outstanding court costs, fines, and fees. Any remaining balance of the proceeds will then be deposited into the General Revenue Fund for the purpose of providing transportation services to participants of the welfare transition program through local workforce development boards. The court may also consider whether the owner’s family has alternative means of transportation when making decisions in a forfeiture proceeding under this section.