DUI Procedures in Florida

There are many stages involved in a DUI charge. From the initial stop to the conclusion of the case, each step of the process addresses a different aspect of your DUI charge. The different stages that are involved in a DUI case are:

• Arrest
• Booking & Bail
• Arraignment
• Preliminary Hearing
• Pre Trial Motions
• Plea Bargains
• Trial
• Sentencing
• Appeals
• Expungement

In each stage of the proceeding an experienced attorney can make an incredible difference in the case.

ARREST

The initial arrest is the process that most people know. An arrest occurs when an officer feels that he or she has probable cause to believe that the crime of DUI has been committed. Probable cause means that there is some evidence that you committed the crime of DUI. It is far less of a standard than that needed for a conviction.

When a person is arrested, he or she is placed in handcuffs and taken in the police car to the jail. Upon arrival at the jail, the officer will start the process of asking for a breath or urine sample in line with the implied consent laws. Paperwork will be completed. You will be searched and asked for some initial information such as your name, date of birth, social security number and address.

The officer will ask these questions while conducting the 20 minute observation period required in order for a breath test to be considered valid. If you consent to the breath test, you will be taken to the breath testing room after this 20 minute period. After administration of the test, you will be taken to booking. If you refuse to take the test, you will be taken straight to booking for processing.

BOOKING AND BAIL

“Booking” refers to the process by which you are admitted into the jail. When you are booked, all of your personal information is entered into the criminal database along with your photo and fingerprints. This information is paired with your criminal charges.

After the breath test is taken or refused, the officer will have you remove all of your personal items for inventory. They will be taken and placed in a safe location as you enter the more secure area of the jail. A booking officer will take your mug shot for future identification. Another officer will take your fingerprints for identification purposes. Your name will be run through the system to check for any outstanding warrants or holds. If you have no other charges, warrants or holds, you will be taken to a holding cell to await bail or first appearance.

“Bail” or “bond” refers to the monetary amount necessary for you to post to ensure you return to court to face your charges. The idea is that if you have some type of financial investment in your appearance you will be less likely to ignore your court date. If you have the money to bond out, you can start the process as soon as the booking procedure is complete. If you do not have the funds to post, you can wait for first appearances or contact a bail bondsman.

Bail Bonds

If you do not have enough money to post your own bail, you can try to get out using a bail bondsman. A bail bondsman is a person who will assist you in posting bail for a fee. In general, you supply the bondsman with a 10% down payment and some type of collateral. In return the bail bondsman posts your bond for you, and you are released from jail.

As long as you appear for all of your scheduled court dates you will get your collateral back. The bondsman keeps your 10% down payment as compensation. If you don’t appear for your court date, the bondsman keeps the 10% down payment and your collateral. So it is important that you show up to court.

First Appearances

If you don’t have the money to post bond, and if you choose not to use a bail bond agency to try to post your bail, you will be brought to First Appearances. First appearances are just that, your first appearance before the judge.

The judge at first appearance reviews the probable cause affidavit prepared by the law enforcement officer. The probable cause affidavit, or PCA, is the sworn affidavit where the officer sets out the facts of your case as he or she sees it. The facts establish the probable cause for your arrest. The judge will review this PCA and determine if there really is probable cause for your DUI arrest or not.

If the judge determines that there is no probable cause, they will allow the officer to supplement the paperwork with additional facts to see if they can meet the standard. If they can’t establish the probable cause then you will be released with no bond.

If the judge upholds the probable cause a bond amount will be set. It may stay the same as when you entered the jail. If you have a bad record or if there are aggravating circumstances it may be raised. If there is a supervised release program you may be allowed release with certain restrictions such as weekly check ins and/or alcohol testing but no posting of money. If you are very lucky, you may be released on your own recognizance or “ROR.” This means the Court will allow you to be released solely on the promise that you will faithfully make all of your court dates.

Whether you are released on bond, on supervised release or ROR, the jail is required by law to keep you at least 8 hours to ensure your alcohol level drops to an acceptable level.

ARRAIGNMENT

The next stage in the process is the arraignment. If you hire an attorney, he or she will enter a “Notice of Appearance” on your behalf. This notice tells the State that you are denying the charge and entering a plea of “not guilty.” It also informs the State which attorney will be representing your interest. Because this notice is filed with the Court, you will be excused from your arraignment unless the attorney tells you otherwise.

If you have not yet hired an attorney, at the time of your arraignment the State will announce whether or not they intend to charge you with DUI. If they are charging you with DUI they will indicate if they are filing charges as a first time DUI, DUI with property damage, second DUI, etc. This way you know the exact charge against you.

After hearing the charge, the offender has the opportunity to enter a plea of “guilty” or “not guilty” to the crime charged. If you plea “not guilty” the court will set another court date known as a “case management” or “pre-trial conference” date in your case. This gives you time to investigate the case and fully understand all evidence against you.

If you plea guilty you will be sentenced. The DUI statute does not allow for deferred sentencing. Once there is an admission or finding of guilt in a DUI case, the offender must receive sentence. This means if you are going to be sentenced to jail, the jail sentence would be imposed immediately if you plea at arraignment. Some judges allow an offender a “turn-in” date. This means you know you have to report to the jail on a certain date to begin your sentence. But this is rare. If the State is asking for jail and you enter a plea at arraignment, you will probably be taken into custody on the spot.

It is not advisable to plea guilty to a DUI charge at arraignment. This is especially true if you are not represented by counsel. There is always a possibility that there may be a defense available to you that would go undetected if you enter a plea right away. If you feel that it may be in your best interest to resolve the case at arraignment, it is best if you at least consult with a knowledgeable attorney first. Not entering a plea at arraignment does not prevent you from entering a plea at a later date. It simply allows you the opportunity to investigate all options to determine the best fit for you.

PRELIMINARY HEARING

Preliminary hearings are those that occur prior to formal charges being filed. Preliminary hearings fall into two general categories. These categories are adversarial hearings and bond hearings. Both can influence bond amounts, but the way it is approached is totally different.

Adversarial hearings deal more directly with preventing a charge from being filed. In these hearings more facts are elicited about the case itself. Sworn testimony is taken and there is great structure. The object is to secure release by preventing charges from being filed.

Bond hearings can be done at any time. There is usually a limited amount of testimony taken and the object is to secure the person’s release from jail regardless of whether charges are filed or not.

Adversarial Preliminary Hearings

An adversarial preliminary hearing is similar to a mini trial. The purpose of the hearing is to force the witnesses against you to show up and state under oath reasons you should be charged with a crime. Sometimes as a result of these hearings the charges are dropped. If not, then the attorney has a sworn statement on the record to use in helping to prepare your case.

In order to hold an adversarial hearing the attorney must file a notice within the first 21 days. There are provisions that allow for the motion to be filed outside of the 21 day window, but the sooner you have this hearing to lock in testimony the better.

Adversarial preliminary hearings are only available in felony cases. As most DUI cases are misdemeanors this is not commonplace in a DUI offense. But in cases of felony DUI, such as a fourth or subsequent offense, DUI Manslaughter or DUI with Serious Bodily Injury it may be a useful tool for the attorney to use.

In addition to serving as a way to obtain valuable information prior to the State’s filing of a case, the adversarial preliminary hearing can lead to information that can be used to convince the judge to lower a bond for an offender who remains incarcerated.

Bond Hearings

If you cannot afford the bond set for you at your first appearance, your attorney may ask for a bond hearing. A bond hearing is a time set in front of the judge to present additional factors as to why your bond should be set to an amount you can post. The main purpose is to ask the judge to let you out of jail under circumstances that you can afford. Sometimes the judge will agree and let you out. Other times they will not agree and your bond will remain the same

IF YOU HAVE A BAD RECORD OR MULTIPLE CHARGES, the state may set a bond hearing to have your bond increased or even revoked. This is especially true in serious DUI cases where the State feels that you will be a danger. So while your bond can go down at a bond hearing it can also go up if you are not careful.

Some factors that are considered at the bond hearing are:

• Prior record
• Crime charged
• Ties to the community, such as:
  • Family in the area
  • Whether you have a job
  • Do you own or rent a home
  • Length of time in the area

If after considering these factors the judge feels there is reason to change the bond, they will issue an order to reflect the change. This can result in your being released from jail. Most judges will not consider a pro-se motion for bond. They will only hear requests for changes of bond from licensed attorneys.

Once these preliminary matters are addressed, it is time to move on to the more substantive issues that surround your case.

PRE-TRIAL MOTIONS

There are many motions that occur after the filing of the information. These are designed to uncover all evidence that can be used against you. Once all the information is obtained, other proceedings are in place to try to eliminate all of that evidence so as to place you in the best position for trial. If the attorney is successful this can result in the dismissal of your case or a reduction of charge. If the attorney is not successful, you can be assured that you have all the information necessary to prepare for trial. If the evidence is too unfavorable, then you can make a decision as to whether to proceed or enter into plea negotiation.

The three most used categories of pre-trial motions are:

• The Demand for Discovery
• Pre-Trial Conference (also known as Case Management) and
• Pre-Trial Motions

All of these are used to place you in the best position possible in making decisions in your case.

Discovery

After your arrest, your attorney will request discovery. Discovery is the name given to the process by which the attorney receives copies of all of the evidence that the State intends to use against you. The State may also request discovery from you, such as the names of witnesses or identity of your alibi.

In a DUI case, discovery usually includes video evidence, lab reports and breath testing information. DUI discovery can be quite technical and can take time to obtain. The discovery will also include a witness list of all the people the State intends to call at trial.

As part of the discovery process, your attorney may take depositions of these witnesses. In a deposition the witness that is going to be called at trial must come in ahead of time and give a sworn statement. The attorney then uses this statement to gather more information in your case. At trial the attorney may use the statement to try to impeach the witness or make them seem less credible. If the testimony is favorable to you, the attorney may use the deposition to file motions to dismiss your case or suppress evidence.

Pre Trial or Case Management

The pre-trial or case management date is a status date that occurs after the attorneys receive discovery. At this date pre-trial motions are filed and deadlines are set. This is also where the trial date is determined. Sometimes a defendant will enter a plea during the pre-trial hearing if they no longer wish to challenge the case.

In all cases the pre-trial serves as a control date to make sure the case progresses in a timely manner. This date ensures that all of the parties are aware of any and all deadlines and keeps cases from being lost in the system. It is a very important date for docket control.

Pre Trial Motions

Pre-trial motions are a large part of DUI practice. It is through motions that many DUI cases are won or lost. These motions occur prior to trial, and can sometimes serve as leverage to get a client a better deal.

Motions are set in order to sort through the evidence and set the boundaries of a case. The four most popular pretrial motions are the motion to suppress, motion to dismiss, motion to compel and the motion in limine.

• Motion to Suppress – this motion is filed when it is alleged that the officer obtained some type of evidence illegally. Usually the attorney alleges a violation of your Fourth and Fourteenth Amendment right to be free from search and seizure, or your Fifth Amendment right to self incrimination. If the motion is granted then the State is unable to use that particular piece of evidence against you at trial. This can lead to a dismissal of the charge.
• Motion to Dismiss – In this motion, the attorney asks the judge to throw out the case. The premise is that even if everything the state says that happened is true, it is not enough to charge you with a crime. If the motion is granted, the charges are dropped against you and you are free to go.
• Motion to Compel – This is used when your attorney needs some type of evidence and the State refuses to provide it. The attorney asks the court to command the State to give it to you. If the motion is granted and the State is unable to provide the evidence, the judge may rule that the State is not able to use related evidence against you at trial placing you in a better bargaining position.
• Motion in Limine – this is a motion that is filed before trial to prevent the state’s witnesses from mentioning some fact at trial. The most common ground for a motion in limine is to exclude any reference to your prior arrest record.

Once your attorney has filed all the appropriate motions and the ruling have been rendered you must make the determination whether to plea or proceed to trial.

PLEA BARGAINS

Plea bargaining is the way 90% of cases are resolved through the criminal justice system. When an attorney enters into plea negotiations they are asking the State to make the best offer possible in order to avoid trial.

When your attorney tries to negotiate a plea on your behalf, they speak with the prosecutor and present mitigating factors. These factors may be things about your life such as that you are a single parent, or that you confessed right away, or that going to jail would cost you your job.

The attorney may also present legal arguments to try to get a better deal for you such as “I won’t file the motion to suppress if you agree to no jail,” or “if you reduce the charge we can avoid trial.” In this way the attorney will try to get the best possible offer in your case so that you can avoid trial and also more intense penalties.

If your attorney is not able to negotiate an acceptable plea, the attorney can ask the judge to get involved in the negotiation. Some judges are unwilling to do this. Others are happy to get involved. It just depends on the judge in your particular jurisdiction.

If there are minimum penalties required in your case, your attorney will not be able to negotiate them away unless the State changes the charge. However, with sanctions such as fines and court costs, the attorney may be able to get the Court to allow you to perform community service hours instead to work off the money. If you have money but no time, the attorney may convince a judge to allow you to “buy out” the community service. These allow you to make arrangements to fulfill the requirements of the minimum penalties without going outside of your means.

If the attorney is able to work out a deal that is acceptable to you then you enter a plea and the case is over. If not you will proceed to trial. Once you proceed to trial your opportunity to try to work out a deal cease. At that point it is up to the judge to determine appropriate sentence. That sentence may be less than what the State was offering, or it may be more. It just depends on the situation.

TRIAL

If you go to trial you elect to have a jury determine if you are innocent or guilty. On the date of trial your case will proceed in an orderly way. The attorney you hire will explain all of the steps in detail as well as your roll. Each jurisdiction has slight variations to the process. But in general the procedure is as follows:

• Jury Selection (also known as Voire Dire)
  • This is the process by which you, your attorney and the attorney for the state select the individuals that will serve on the jury and hear your case. The idea is to get a panel of jurors who will be fair to both sides.
  • In jury selection the judge will address a panel of prospective jurors and ask a few questions. Then the State will ask questions of the panel. Then your attorney will address the panel. Based on their answers your attorney and the attorney for the State will elect the six who are the most fair to be jurors in your case.
• Opening statements
  • After the panel is selected the trial will start. The first step is opening statement.
  • During the opening statement both attorneys explain to the jury what they think the evidence will show during the course of the trial. The State goes first and then the defense attorney.
  • After opening statement the State will call the first witness
• The State’s case
  • The state puts on their witnesses and presents evidence and tries to convince the jury to convict you
• Cross examination
  • Your attorney then questions the State’s witnesses to try to show inconsistencies or questions in their testimony in order to convince the jury not to convict you.
• The State then “rests.”
  • When the State is done presenting their case they rest or say they are done. Then it is your attorney’s turn to present your case.
• The “JOA”or Judgment of Acquittal
  • Your attorney will move for a JOA. This means once the State rests your attorney will ask the judge to find that the state has not presented enough evidence to the jury for them to determine if you have committed the crime. If it is granted, the case is over and your case is dismissed. If not then your attorney presents your case.
• The Defense’s case
  • If you have witnesses or evidence, it is at this time that you get to present it to the jury.
  • The State then has the opportunity to cross examine your witnesses just like your attorney cross examined the witnesses for the state.
• Closing arguments
  • This is the last argument that the State and your attorney make to the jury to summarize the evidence and tell the jury why they should vote guilty or not guilty
• Charge to the Jury
  • After closings, the judge will read the jury the jury instructions that are specific to your case. These are the guidelines the jury must use to determine their verdict.
• Deliberation and Verdict
  • The jury then takes the instructions back to the jury room to make a decision. When they come to a decision then they return to the courtroom with the verdict.
  • If the verdict is not guilty you go free
  • If it is guilty you proceed to sentencing.

This is the overall procedure followed in every trial. If you are found guilty the statute says you must be sentenced immediately in a DUI charge. This means your attorney will have had to prepare for the worst while also prepping for trial.

SENTENCING

If you enter a plea or are found guilty of a crime, then it is up to the judge to pronounce sentence. A sentence is your punishment. DUIs have a very structured penalty that must be imposed. These include minimum fines, mandatory jail sentences, mandatory license suspensions, DUI School and court costs. The only area where a judge has any type of discretion is if he or she wants to impose MORE of a penalty than is required by law.

The minimum sentence for most DUI cases is probation. If it is a first time DUI there are also mandatory community service hours that must be performed. If it is a second or third DUI there may be minimum jail time to be served. This is also true in felony DUI cases.

If your DUI has been charged as a felony, the judge will have to follow the sentencing guidelines, the minimum penalties set forth in the statute and also the points on a scoresheet. “Scoresheets” or sentencing guidelines give points for all prior offenses as well as the current DUI. If you score enough points you may end up with a mandatory prison sentence.

The sentencing range for DUI charges are as follows:

DUI Offense	Statute No.	Minimum Mandatory	Maximum Jail	Minimum Fine	Maximum Fine	Vehicle Impound	License Suspension	Ignition Interlock	Community Service
1st offense	316.193 (1)	None	6 months	$500	$1000	10 days	6 to 12 months	Not Required	50 hours
1st offense BAC .15 or higher	316.193(4) (a)(1)	None	9 months	$1,000	$2,000	10 days	6 to 12 months	6 months	50 hours
2nd offense outside of 5 years	316.193(2)(a)(3)	None	9 months	$1,000	$2,000	10 days	6 to 12 months	1 year	None Required
2nd offense outside of 5 years BAC .15 or higher	316.193(2)(a)(3)	None	1 year	$2,000	$4,000	10 days	5 years to life	1 year	None Required
2nd offense within 5 years	316.193(2)(a)(3)	10 days	1 year	$1,000	$2,000	30 days	5 years to revocation	1 year	None required
2nd offense within 5 years BAC .15 or higher	316.193(2)(a)(3)	10 days	1 year	$2,000	$4,000	30 days	5 years to revocation	1 year	None required
3rd offense outside of 10 years any BAC level	316.193(2)(b)(2)	None	1 year	$2,000	$4,000	10 days	6 to 12 months	2 years	None required
3rd offense within 10 years any BAC level	316.193(2)(b)(2) FELONY	30 days	5 years	$2,000	$5,000	90 days	10 years to revocation	2 years	None required
4 or More Offenses	316.193(2)(b)(3) FELONY	None	5 years	$2,000	$5,000	90 days	Revoked	2 years	None required
DUI With Serious Bodily Injury	316.193(3)(c)(2) FELONY	Depends on the scoresheet	5 years	$1,000	$5,000	10 days	3 years to revocation	Not Required	None Required
DUI Manslaughter	316.193(3)(c)(3) FELONY	4 years	15 years	$1,000	$15,000	10 days	Revoked	Not required	None Required

The sentence you receive for your DUI charge will fall within these ranges. If it does not, you may be entitled to an appeal.

APPEALS

If you feel that something was not done correctly in your case you have the right to appeal to a higher court. The higher court will review the record and determine if there were any errors. If there were and the errors were bad enough, the higher court will direct the lower court to correct it by dismissing your case or starting it over from the beginning.

Most DUI cases are tried at the County Court level. When you file an appeal, the appeal goes to the Circuit Court in an Appellate capacity. This means that a judge that works with the judge who presided over your case will be reviewing your case for error. Many feel this prevents the offender from getting a fair review.

If the Circuit Court upholds the lower court’s ruling you can file a Writ with the DCA. The Writ asks the District Court of Appeal to find error with both court’s rulings. If the DCA finds error the case will be reversed and sent back to the County court to try again. If it is upheld then that is the end of the appeal process barring some type of great constitutional concern.

If the case was a felony and tried in Circuit Court, the case is appealed directly to the Court of Appeals. This allows for a more unbiased review of the proceedings. If the DCA rules in your favor the case is sent back to comply with the new order. If it is upheld, a Writ can be filed with the Supreme Court but again, barring some great constitutional issue the appeal will probably not be considered.

Appeals are expensive and are not often done in DUI cases. Most of the caselaw relied on come from DUI Manslaughter charges. This is because the DCA has the first round of review. This does not mean it is not your right, however, and if you feel strongly you should be sure to file the proper paperwork.

EXPUNGEMENT

Florida law specifically excludes DUI charges from being expunged. Even if you are found not guilty at trial, a DUI charge will remain on your record forever.

Florida has no time limits that allow a DUI charge to “fall off” or disappear from your record. Where other states will only consider a DUI charge within the past 5 or 10 years when charging a prior conviction, Florida considers all priors regardless of the time that has elapsed.

These are the steps that every case follows as it proceeds through the criminal justice system. The process can be overwhelming. However, with the help of a good Dui attorney you can make sure all of your rights will be protected. The sooner you contact an attorney the better your chances will be for obtaining a favorable outcome.