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DUI Defense

Driving under the influence (DUI) is illegal in all 50 U.S. states. However, Florida is known for having harsh penalties for DUI convictions. The high rates of DUI offenses in Florida have to strict laws with severe consequences. It’s vital that you’re aware of the legal process if you’re charged with DUI.

DUI penalties can be life-changing. You may be forced to pay large fines, complete community service, participate in DUI programs and even be forced to serve jail or prison time. Hiring an attorney and understanding your rights is paramount to obtaining a desirable outcome for your DUI. If you or someone you know has been charged with a DUI, it’s vital that you contact the attorney at Law Offices of Bryan J. McCarthy.

Attorney for DUI Charges in Brevard County, Florida

Have you been charged with driving under the influence in Florida? It’s imperative that you start taking steps to build your defense now. DUI charges can lead to harsh criminal penalties such as steep fines and incarceration. If you or someone you know has been charged with a DUI, call the attorney at Law Offices of Bryan J. McCarthy.

Law Offices of Bryan J. McCarthy has a strong primary focus on criminal defense, especially driving under the influence. We understand law enforcement tactics and common prosecution cases for DUI. Additionally, our attorney has years of experience defending those with DUI charges. Don’t hesitate. Call the attorney at Law Offices of Bryan J. McCarthy today at (321) 248-7742 for a free consultation.

Our attorney practices law throughout the greater Melbourne area and surrounding areas including Titusville, Cocoa, Cape Canaveral, and Palm Bay.

Overview of DUI Defense in Florida

  • DUI Defined under Florida Law
  • DUI Testing in Florida
  • Implied Consent Laws in Florida
  • DUI Penalties in Florida
  • Additional Resources

DUI Defined Under Florida Law

Driving under the influence is defined in Florida Statute § 316.193. A driver is guilty of the crime if they are found in actual physical control of a vehicle and they have a blood alcohol concentration (BAC) of .08 or higher or do not have the normal use of their faculties. Normal faculties include a person’s ability to hear, walk, see, balance, talk and perform everyday tasks.

The term “actual physical control” can create some confusion with drunk driving cases. A person can be convicted of DUI without ever actually driving a motor vehicle. Actual physical control means that you have the capability to drive, but you weren’t actively driving.

The following are several factors that the court uses to determine if a person is in actual physical control of a vehicle.

  • If the car is turned on or not;
  • If the motor vehicle is parked;
  • If the car has been driven recently;
  • The car’s workability;
  • Where the alleged offender was in the vehicle;
  • Whether the engine is on or not; and
  • Where the keys are located.

DUI Testing in Florida

Law enforcement uses several methods to measure a person’s impairment level. Typically, police officers will use two types of testing to obtain the evidence they need. These tests include field sobriety tests and chemical testing.

Field sobriety testing is a series of physical exercises that determine if a person is intoxicated or not. The National Highway Traffic Safety Administration (NHTSA) has standardized three tests for law enforcement to use during DUI stops. These tests have been studied in NHTSA experiments and are highly utilized by prosecutors in court.

The following are the tests that are standardized by the NHTSA:

  • Horizontal Gaze Nystagmus – Nystagmus is when a person’s eye twitches due to drugs or alcohol. Law enforcement will measure your eyes by using a horizontal gaze nystagmus test. A police officer will put an object 12 to 15 inches away from your nose and sway it back and forth. If your eye twitches or has issues tracking it may be a sign of impairment.
  • Walk-and-Turn – Law enforcement may use this test to measure your physical faculties. You will be asked to take nine heel-to-toe steps in a straight line and then turn on one foot to take another nine heel-to-toe steps back.
  • One-Leg Stand – Police officers will test your balance with a one-leg stand. You will be asked to stand on one leg about six inches off the ground and count for 30 seconds. If you struggle to keep balance the officer may believe you’re intoxicated.

Officers also use chemical testing to determine if a person is intoxicated or not. All tests measure BAC, while blood and urine test measure the level of drugs in a person’s system. These chemical tests are incredibly valuable to the prosecution. While field sobriety testing is arguably vague, the results from a chemical test are hard to contest. Police officers use three sets of tests to measure a person’s impairment level including:

  • Breath – The most common chemical testing is breath analysis. Officers do this with a breathalyzer at the station or with a portable breath test at a DUI stop. Breath analysis can be controversial since blood-alcohol concentration (BAC) is hard to determine with breath.
  • Blood – Officers may ask you to submit to a blood draw. Blood tests are the most accurate out of all chemical testing. Normally, police officers will ask you to do a blood test if they believe you’re on drugs or narcotics.
  • Urine – Sometimes officers will ask you to submit to a urine test. Urine analysis is incredibly controversial because drugs can remain in your system longer than 24 hours. So if you have consumed marijuana, for example, the drug may stay in your body for up to three weeks.

Implied Consent Laws in Florida

Florida has a set of laws that are directly related to chemical testing. Florida Statute § 316.1932 states that any person who uses Florida public roads is implicitly giving their consent to chemical DUI testing by law enforcement. Implied consent laws mean you cannot refuse chemical testing without some sort of consequence.

If you refuse chemical testing, you may face administrative penalties. You will receive a “Notice of Suspension” and have 10 days to file an administrative suspension hearing. Failure to act will result in a license suspension for up to 12 months. However, if you successfully file for a hearing you and your attorney can battle for your driving privileges in court.

You may face a license suspension, but most attorneys will suggest that you refuse chemical testing. It’s been proven that some have failed chemical testing because of simple human error. Factors such as contaminated samples, faulty machines and bad management can lead to mistakes. Even if you are 100 percent sober there’s a possibility of failing. If you’re willing to take that chance, then submit to chemical testing.

Those who aren’t willing to tempt fate may find themselves in handcuffs. If the officer who pulled you over has probable cause of DUI, then he or she can arrest you. An arrest is never a pleasurable experience. You may be forced to go through the booking process and spend a short period of time in jail. However, this may be the best possible option.

If you don’t submit to chemical testing, then the prosecution has no hard evidence against you. Instead, they will be relying on objective evidence and testimony from your arresting officer. It’s much easier to win a DUI case without chemical testing evidence. While being arrested is terrible, it may be better to endure the process so that your charges are reduced or dropped.

Penalties for Driving Under the Influence in Florida

The penalties for DUI are reliant on your criminal history and if aggravating factors are present. It’s important to note that the following penalties don’t include aggravating factors. If any aggravating factors occurred during the offense, the penalties might be elevated. Having a child passenger during the offense or having a BAC of .15 are aggravating factors under Florida law.

First Offense: Second Offense:
(more than five years from first conviction)
Second Offense:
(within five years of first conviction)
Third Offense:
  • Six months in jail
  • Fine up to $1,000
  • 50 hours of community service
  • License suspension for six months
  • 10-day vehicle impoundment
  • DUI school
  • Nine months in jail
  • Fine of up to $2,000
  • 50 hours of community service;
  • License suspension up to 12 months
  • 30-day vehicle impoundment
  • DUI school
  • Possible installation of an ignition interlock device (IID)
  • Minimum of 10 days in jail
  • Maximum of nine months in jail
  • Fine of up to $2,000
  • 50 hours of community service
  • License revocation for up to 5 years
  • 30-day vehicle impoundment
  • DUI school
  • Mandatory IID
  • 5 years in prison
  • Fine of up to $5,000
  • 50 hours of community service
  • License revocation for up to 10 years
  • 90-day vehicle impoundment
  • DUI school
  • Ineligible for a hardship license for two years
  • Mandatory IID

Additional Resources

DUI Statistics in Florida – Visit the official website for the Florida Department of Law Enforcement to gain access to infograms for driving under the influence. Learn how many DUI arrests occurred in the state, the percentage based on age and sex, and DUI arrest county by Judicial Circuit.

Florida DUI Laws – Visit the official website for Online Sunshine, which contains all of Florida state laws and legislation. Find more information about how driving under the influence offenses are treated under Florida law, the penalties and the possible admissible defenses.

Lawyer for DUI Defense in Melbourne, Florida

If you or someone you know has been charged with a DUI in the Brevard County area, it’s crucial that you seek a criminal defense attorney. The attorney at Law Offices of Bryan J. McCarthy excel in criminal defense. We understand the struggles that come with DUI charges. Our attorney will utilize all resources and knowledge to create the defense you need.

Get ahead of your charges and call us today. We accept clients throughout the greater Brevard County area and surrounding counties including Volusia County and Indian River County.