DUI Lawyer in Melbourne, FL

Representing Those Accused of DUI in Brevard County

At Funk, Szachacz & Diamond, our Board Certified DUI attorneys in Melbourne represent clients facing charges pertaining to drunk driving. Our criminal defense team can advise you of options that may be possible in your situation. We can explore business purpose licenses, challenging the suspension, or completing an educational program to regain your license.

Driving Under The Influence in Florida

Driving Under the Influence (DUI) ranks fourth behind larceny, narcotics and assault as Florida's most common crime.

DUI can be committed in a few ways:

• Driving while impaired - This includes being in actual physical control of a vehicle while under the influence of alcohol or certain prohibited substances to the extent that a person's normal faculties are impaired.
• Driving with a high BAC - Someone can be charged with a DUI without impaired faculties, but with a blood alcohol level of 0.08 or higher, while in physical control of a vehicle.
• Sitting in the driver's seat - You don’t actually have to be driving to be charged with DUI. People have been charged with DUI for sitting in the driver’s seat with the keys nearby, even if they are not actually driving the car.

Actual physical control is not clearly defined under Florida law, but courts seem to interpret the phrase to mean that the person was near the driver's seat and, if they wanted to, could have driven.

For example, if an intoxicated person is seated behind the wheel or lying on the seat near the wheel of a stationary vehicle with the keys in the ignition or nearby, they can be charged with DUI.

It should also be noted that Florida's DUI laws apply to any kind of vehicle, including bicycles and farm equipment.

What are the Penalties For a DUI in Florida?

In Florida, anyone stopped by law enforcement and having a blood-alcohol level of more than 0.08 or refusing to take the testing will have an immediate administrative driver's license suspension between six and eighteen months. After thirty days of the arrest, the person in question will face an immediate administrative suspension of their driver's license for six to eighteen months.

First Offense DUI

A first offender must then wait thirty to ninety days after the effective date of their license suspension in order to be eligible for a "business purpose only license."

A person may challenge the suspension, but should it not be reversed, the offender must complete an educational program to regain their license after the suspension period expires. The increased cost of automobile insurance due to an alcohol-related suspension is often substantial.

Penalties for First-Time Convictions:

• A fine of $250-500
• Imprisonment of up to six months
• Suspension of his or her driver's license (even if the license was already administratively suspended by the arresting police officer)
• Fees and costs (usually around $1,000)
• The impoundment of his or her vehicle for ten days, probation for up to one year
• A minimum of fifty hours of community service
• A permanent criminal misdemeanor conviction on his or her record

Moreover, the cost of their automobile insurance will likely triple over the next three years. The offender will have to face the social consequences of being a known DUI offender.

Subsequent DUI Convictions

Penalties for Subsequent DUI Convictions:

• A fine of $500-1,000
• Up to nine months in jail with a mandatory minimum of ten days in jail
• Impoundment of the offender's vehicle for thirty days (if the second conviction is within three years of first conviction)
• Driver's license suspension of at least five years
• Fees and costs of about $1,500 not including the cost of insurance, which will be extremely high

A fourth DUI conviction is a felony, regardless of the time period, and the offender's license is permanently revoked. If there is any property damage, personal injury or death involved in a DUI incident, a person faces up to fifteen years in prison, depending on the circumstances.

In addition to the penalties imposed by the court, you will have a permanent conviction on your record. You will have to contend with the social consequences of a DUI conviction, and your record may limit employment opportunities. You will pay significantly higher rates for car insurance, even after your license is reinstated.

Implied Consent and the Right to Refuse Testing

Florida law provides that any driver operating a motor vehicle within the state who is lawfully arrested for DUI must consent to a chemical or physical test for the purpose of detecting alcohol or any other prohibited substance. The test may take the form of breath, blood or urine analysis.

If a person refuses to take a test, their license will be administratively suspended for one year. If a person takes a test and is determined to have driven or been in control of a vehicle with a blood-alcohol level of more than 0.08 percent, their license will be administratively suspended for six to eighteen months.

Remember that an administrative suspension of a driver's license is separate from, and often in addition to, the penalties of a DUI conviction.

What are the sequence of events for a typical DUI case and trial?

The Initial Stop By Police

After stopping a vehicle, a law enforcement officer will either order the driver to exit the car or approach the car while the driver remains inside. Under Florida law, a driver is required, if asked, to produce a vehicle registration document, proof of insurance, and a driver's license to the officer.

A driver has no legal obligation to answer any questions asked by the officer, including those related to sobriety, destination, or point of departure.

The officer may ask the driver to exit the car and, with reasonable suspicion, perform roadside tests.

The National Highway Traffic Safety Administration has devised three tests believed to indicate impairment:

• An eye test
• A walk-and-turn test
• A stand-on-one-leg test

Some officers may use variations of these tests. The driver, however, is under no legal obligation to perform the tests (though evidence of a driver's refusal can be used in court). If, in the officer's opinion, there is probable cause to believe a person is guilty of DUI, they will be arrested.

The Trial

Under the United States system of justice, all defendants are innocent until proven guilty. To prove a defendant guilty of DUI, the prosecution must persuade a jury (or a judge) that the defendant committed the crime "beyond a reasonable doubt." This standard of proof is higher than that required in a civil trial.

A defendant's attorney will closely scrutinize all elements of the case against their client. They will pay particular attention to the procedures the police followed in arresting and testing the defendant.

Common DUI Defense Arguments

If, for example, the prosecution fails to prove the police had probable cause to stop and arrest the defendant, the case will fail even if the defendant was indeed driving drunk. Police are constitutionally prohibited from indiscriminately stopping or arresting people.

Another argument a defense attorney might make is that while the defendant may have had a blood alcohol level of more than 0.08 percent at the time of the test, when he or she was stopped, his or her blood alcohol level was still within legal bounds.

The level of alcohol in a person's bloodstream does not immediately increase upon drinking alcohol. The absorption of alcohol into the bloodstream takes time and is based on a variety of factors (e.g., a person's weight, metabolism, amount of food in the stomach). If the police arrested the defendant before they were legally drunk, the defendant may be acquitted.

Appealing a DUI

If a defendant is convicted of DUI, they are still entitled to an appeal.

Appeals from a guilty plea concern only the correctness of the sentence, not the innocence or guilt of the defendant. Appeals from a conviction relate to whether the defendant's right to trial was violated in any substantial way.