If you’ve been arrested in Florida for a second DUI, you’re probably wondering whether it will be treated as a misdemeanor or felony. Well, to get you started, here’s what a second DUI is defined as under Florida Statute 316.193(1) and (2)(a):
A second DUI occurs when a person;
- Has actual physical control or drives a vehicle within Florida and is under the control of any controlled or chemical substances or alcohol and is affected so much that their decision making is impaired.
- Has a blood-alcohol or breath alcohol level of 0.08 or higher.
- Has been previously convicted of a DUI offense before or an out-of-state offense that’s comparable.
One of the major misconceptions associated with DUIs is that they are only effective if you’re driving under the influence of alcohol. However, you should note that this term also refers to drugs and other controlled substances.
After being arrested for a second DUI offense, the first thing you should do is to contact a DUI attorney because your penalties are highly dependent on your lawyer’s ability to defend you. Check out our comprehensive guide below into second DUIs, including the expected penalties and effective defense strategies.
Is a Second DUI a Felony?
DUIs can either be convicted as a misdemeanor or felony, but standard first offenses are almost always misdemeanors. If you, however, injure another person seriously or cause an accident that results in their death, you’ll be looking at a felony, even if it’s your first offense. You also risk being charged with vehicular manslaughter. In most states, 1st and 2nd DUI cases are usually charged as misdemeanors, while all subsequent convictions are felonies. Your DUI case may also be charged as a felony if your blood alcohol content was extremely high or your crime was egregious, e.g., you were transporting young children while extremely drunk.
Is There a Difference Between a Misdemeanor and Felony DUI?
Yes, and it all boils down to the penalties. Misdemeanors typically have less harsh penalties compared to felonies. For instance, in a misdemeanor DUI, you may face 1-year imprisonment and around $1,000 in fines. For felonies, on the other hand, the prison sentence is much longer, and the fines could accumulate to thousands of dollars. Felonies are also sometimes accompanied by additional consequences, including the loss of voting rights.
What Are the Penalties for a Second DUI in Florida?
Even though a second DUI in Florida is considered a Second Degree Misdemeanor, its penalties are more severe compared to other traditional second-degree misdemeanors. It also carries additional penalties if you were accompanied by a minor at the time of your arrest or your blood or breath alcohol content was .15 or higher.
There are 2 main factors that determine the minimum mandatory requirements for your second DUI conviction; whether your arrest is outside of 5 years of a prior conviction or within 5 years of a prior conviction.
Outside Five Years of a Prior DUI Conviction
Under the Florida State Statute 316.193, you risk facing minimum mandatory punishments that include;
- Jail time: a maximum jail term of 9 months is required, but if your alcohol content levels were higher than .15, this period is increased to 12 months.
- Fines: the fine range for people whose blood alcohol level is less than .15 is usually between $1000 and $2000. If your alcohol content levels were .15 or higher and you were driving with a minor at the time of arrest, the fine range increases to between $2000 and $4000.
- Probation: you risk facing a probation period ranging between 6 to 12 months.
- Community Service: most of the time, people facing a DUI offense outside 5 years of their previous conviction are subjected to community service.
- Driver’s License Revocation: if you’re convicted, you risk facing a license renovation for a period of 6 to 13 months. You also lose your eligibility for a Florida Business Purposes Only License and can only get it back if the DHSMV and court-ordered suspensions end.
- Ignition Interlock: you may face a 1-year ignition interlock if you’re convicted, but if your blood alcohol content was .15 or higher, this period increases to 2 years.
- Vehicle Impound: for a second DUI outside 5 years of the prior conviction, a 10-day impoundment is required. The judge may, however, dismiss this penalty if your vehicles are for business use and are solely driven by the employees.
Within Five Years of a Prior DUI Conviction
If your second DUI offense was within 5 years of the previous conviction, the mandatory minimum penalties include;
- Jail Time: you risk facing mandatory imprisonment of 10 days minimum but does not exceed 9 months. If your blood alcohol content was .15 or higher or you were driving with a minor at the time of the arrest, the jail time is increased to 12 months.
- Fines: the minimum fines range between $1000 and $2000 for a blood alcohol content of less than .15. If it was higher than this and you were in the presence of a minor, the fine increases to between $2000 and $4000.
- Probation: the probation period is between 6 and 12 months.
- Community service: you’ll be required to perform community service for a period determined by the judge.
- Driver’s License Revocation: your driver’s license will be revoked for a minimum of 5 years. You also lose eligibility for a Business Purposes Only License until 1 year of the 5-year revocation is over.
- Ignition Interlock: an ignition interlock of 1 year is required, but if your blood alcohol content was .15 or higher, this period increases to 2 years.
- Vehicle Impound: for DUI offenses within 5 years of the prior conviction, the vehicle impoundment period increases to 30 days minimum.
It’s important to note that the driver’s license revocation begins when your plea is entered, and during this period, you’ll be ineligible for a hardship license.
What Are the Top Defenses to Second DUI Offense?
Your freedom and criminal record are dependent on how well your DUI attorney represents you. There are 4 main defense strategies;
Illegal Traffic Stop
Contrary to popular belief, law enforcement can’t just stop you without any reason. The law is very clear on this, and you can only be stopped if;
- The law enforcement officer has probable cause that you committed a crime.
- They have reasonable suspicion that you’ve committed a traffic offense.
However, if your attorney can prove that the stop was illegal and the officer was mistaken, any evidence they obtained during the stop will be suppressed. For instance, if an officer stopped you on suspicion that your license plate was expired while it was up to date and then arrested you for a DUI, the traffic stop will be considered illegal.
Inadmissible Breath Results
Breathalyzers are highly regulated and are subject to strict maintenance and storage requirements; otherwise, the results will be inadmissible. The testing process is also very specific and should be performed in a standardized way. If law enforcement officers fail to conduct the tests as required by law or use improperly maintained devices, the results could be ruled inadmissible even when the alcohol content was extremely high.
Some of the elements that can be used to determine the reliability of the breathalyzer results include;
- Officer incorrectly stated Florida’s Implied Consent Law or failed to read it.
- They failed to perform observations 20 minutes before administering the test.
- The machine was improperly calibrated before being administered.
- They asked you to keep blowing into the breathalyzer.
Insufficient Probable Cause
The law enforcement officer can only arrest you for a DUI with probable cause; that is, they had sufficient suspicion that you were driving under the influence of controlled substances or alcohol and that your normal faculties were impaired as a result. If your lawyer can prove that the officer’s probable cause wasn’t backed by sufficient evidence, all evidence from the arrest will be suppressed.
Here’s a great example of insufficient cause; sometimes, law enforcement officers solely arrest a driver based on the odor of alcohol, but this on its own is not enough to justify a DUI arrest.
Improper Field Sobriety Tests
Most of the time, law enforcement officers first administer field sobriety tests before arresting the driver for a DUI. These tests are mainly designed to help them determine whether the diver’s normal faculties were impaired. Your lawyer can, however, challenge these results if;
- You have physical injuries that impact your ability to perform the tests.
- The officer is unfamiliar with your coordination and true balance.
- They are unqualified to perform some field sobriety tests.
There are also tests that are inadmissible in court.
Seek Legal Help From A Florida DUI Attorney Today!
If you’ve been arrested for a second DUI offense, you’re probably worried about the penalties you may face. There’s also a high chance that you’re probably wondering, ‘Is a Second DUI a Felony?’. We’ll this is dependent on whether your DUI resulted in serious injuries or death of the other party. Otherwise, it will be charged as a misdemeanor.
Immediately you’re arrested, make sure you contact a DUI attorney at Meltzer & Bell, P.A. because your freedom may just depend on it. Contact us today for a free consultation, or alternatively, you can call us on (561) 557-8686.