Third 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 two (2) previous DUI convictions on your record, you can expect to face more severe penalties for a third DUI offense. The specific consequences you’ll face for a third DUI conviction will depend on whether it occurred within 10 years of a prior conviction or outside of 10 years of a prior conviction.

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 criminal defense attorney 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 third 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 committed DUI attorneys specialize in vigorously defending DUI cases in Fort Lauderdale and throughout South Florida. Our primary goal is to achieve optimal outcomes for our clients, often resulting in dismissal of charges or reduction to the lesser offense of reckless driving. We diligently work to secure diversion opportunities wherever possible. Ultimately, our mission is to assist clients in mitigating the long-term consequences associated with a DUI charge.

After a DUI arrest in the Miami, Palm Beach, or Fort Lauderdale areas, you will face two distinct types of cases. First, the administrative case (civil) with the DMV (Florida Department of Highway Safety and Motor Vehicles, or DHSMV), which centers on your driver’s license suspension. We offer invaluable guidance to our clients throughout the administrative proceedings, advising them on strategic courses of action that enhance their chances of a positive resolution. Second, the criminal case will unfold in court. Our seasoned DUI lawyers possess extensive experience handling both types of cases across all three counties and can provide tailored advice on the most suitable course of action for you.

We strongly encourage anyone accused of a DUI to consult with an attorney early in the process. For assistance in selecting the right attorney, consider reading our Tips for Choosing a DUI Attorney.

In order to secure a third conviction for DUI, the State must establish two crucial elements beyond a reasonable doubt. For a Third DUI Outside of 10 years, the state must prove the priors to the judge for sentencing purposes. For a felony conviction on a charge of Third DUI Within 10 Years, the State must further prove the prior convictions to a jury beyond a reasonable doubt.

Firstly, they must demonstrate that the defendant either operated or was in "actual physical control" (i.e. had the ability to operate a vehicle). This includes situations where the defendant was discovered inside or on the vehicle with the keys in the ignition, regardless of their intention to sleep off the effects of alcohol. However, if the vehicle was not functional at the time of the alleged offense, the defense of inoperability may be invoked.

The second element pertains to the defendant's impairment caused by the consumption of alcoholic beverages, a chemical substance, or a controlled substance. This impairment can be proven in two ways: either by showing that the defendant's normal faculties were affected, or by establishing that their blood or breath-alcohol level exceeded the legal limit of .08 grams of alcohol per 100 milliliters of blood or 210 liters of breath.

To assess impairment of normal faculties, law enforcement often conducts field sobriety exercises. These tests are designed to identify any minor slips, slurs, or missteps that may indicate impairment. Although officers claim that these exercises are not graded on a pass/fail basis, they are trained to closely observe any perceived mistakes made by the defendant.

The term "normal faculties" encompasses a wide range of abilities, including but not limited to vision, hearing, mobility, speech, judgment, driving skills, decision-making in emergencies, and the performance of various mental and physical tasks in our daily lives. It may seem astonishing, but the police rely on these roadside assessments to determine a person's impairment. 

Additionally, it is important to note that any actions or statements made by the defendant while in the back of the patrol car, such as falling asleep, are recorded and can be used as evidence against them during the trial.

In the case of a third DUI within 10 years, the State has the added burden of proving your prior conviction to the jury.  To do so, they will rely upon the driving record and certified convictions from the priors, combined with a custodians of record and fingerprint analysts. 

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 Ft. Lauderdale, Miami, and Palm Beach. 

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 third 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 Third DUI Outside Ten (10) Years

If a third DUI offense occurs outside of the ten-year period, it is considered a first-degree misdemeanor offense under Florida law. The court is required to impose the following mandatory minimum requirements, unless the conviction is avoided:

• Incarceration or Jail Time: The maximum imprisonment period is 12 months.
• Terms of Probation: The probation period can be up to 12 months.
• Fine: The minimum fine is $2,000, with a maximum of $5,000. If the blood alcohol level (BAL) is .15 or higher, or if there is a minor in the vehicle, the fine will not be less than $4,000.
• Vehicle Impoundment: Unless the defendant's family does not have any other means of transportation, the vehicle will be impounded for 90 days. However, the impoundment cannot occur at the same time as the jail time, except if the vehicle is exclusively operated by the defendant's employees or for business purposes.
• Driver License Revocation Period: The minimum revocation period is 180 days, with a maximum of one year.
• DUI School: The defendant must complete Level II DUI school, which includes a substance abuse evaluation. Any recommended follow-up treatment must also be completed.
• Mandatory Ignition Interlock Device: The defendant must install an ignition interlock device in their vehicle for at least two years.

Often, there are non-mandatory conditions the court may choose to impose but are very common. These include a Mother's Against Drunk Driving (MADD) program called the "Victim Impact Panel." Another common condition may be a transdermal alcohol detector (TAD).

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 third DUI conviction that occurs outside of ten years is that the driver will not be eligible for a hardship license after a second DUI conviction.

Penalties for a Third DUI Within Ten (10) Years

If a third DUI offense occurs within ten years of the second DUI, it is considered a felony DUI offense under Florida law. The court is required to impose the following mandatory minimum requirements, unless the conviction is avoided:

• Jail: Mandatory imprisonment of at least 30 days, with at least 48 hours served consecutively.
• Fine: Not more than $5,000, unless the blood alcohol level (BAL) was .20 or above or a minor was in the vehicle. In those cases, the fine will range from $2,000 to $5,000.
• Vehicle Impoundment: The vehicle will be impounded for 90 days.
• Driver License Revocation Period: If both prior DUI convictions occurred within a 10-year period, the driver's license will be revoked for at least 10 years. If at least one of the prior DUI convictions occurred within five years, the revocation period will be at least five years.
• Hardship Reinstatement: The driver may be eligible for a hardship reinstatement after two years if they have not consumed any alcoholic beverages or controlled substances, have not driven a vehicle for the 12 months prior to reinstatement, have completed DUI school, and remain in the DUI supervision program for the remainder of the revocation period. If at least one of the prior DUI convictions occurred within five years, the driver may be eligible for a hardship reinstatement after 12 months.
• Level II DUI School: The driver must complete three days of classroom instruction, undergo a substance abuse evaluation, and complete any recommended follow-up treatment.
• Mandatory Ignition Interlock Device: The driver must install an ignition interlock device in their vehicle for at least two years.

It is important to note that these are the mandatory minimum requirements, and the court may impose additional penalties at their discretion.

A little-known statutory section allows law enforcement to seize the vehicle of any person found driving under the influence who's license is currently suspended for a prior DUI. 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 driving under the influence, the vehicle is subject to seizure and forfeiture under §§ 932.701-932.7062 and can also be subject to liens for vehicle recovery, towing, or storage under § 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 consider whether the owner's family has alternative means of transportation when making decisions in a forfeiture proceeding under this section.