DUI Blood & Breath Testing…Factors to Consider When Deciding Whether to Submit

In exchange for the privilege of driving within the State of Florida, one impliedly consents to comply with lawful requests by law enforcement to submit to blood/breath alcohol tests.  The decision whether to perform or refuse to perform can be complicated and will depend on a several circumstances and factors.   The best way to avoid these tests altogether is to avoid getting behind the wheel of a vehicle after drinking alcoholic beverages.  However, if you find yourself in this position there are several things you should know.

 

First, refusing to perform the tests will lead to a 12 month suspension for a first time refusal, and an 18 month suspension if you have refused a prior breath/blood alcohol test.  If you do perform the tests, and either your blood alcohol level is determined to be greater than or equal to .08 grams of alcohol per 100 milliliters of blood, or .08 grams of alcohol per 210 liters of breath, your driver’s license will be suspended for a period of 6 months…or 12 months if this wasn’t your first suspension for unlawful breath/blood alcohol level. 

 

For a prosecutor in a DUI case life is simpler when a defendant submits to testing and tests at .08 or greater.  Refusing to submit to testing certainly increases your chances of attaining a favorable outcome in your DUI case, however positive tests alone are not the only way for a prosecutor to get a conviction.  Facts such as physical appearance, slurred speech, odor of alcohol, abnormal driving behavior and poor performance on field sobriety tests can also be used by the State to prove you were under the influence of alcohol to the extent your normal faculties were impaired.  If you are found driving in a dangerously erratic manner and you fall out of your vehicle as the officer approaches, refusing to take the breathalyzer probably will not save you. 

 

There is no one correct answer concerning whether to take the tests.  If you know you have not been drinking, or have consumed a very small amount of alcohol, it may be wise to submit to the testing to avoid having your driver’s license suspended for an extended period of time.  However, if you believe there is any chance of failing the tests should you perform, it may be in your best interest to avoid building the prosecution’s case for them and refuse to test.  Each scenario is different and will require a unique, case-by-case analysis of the circumstances to make an appropriate decision, however if you know you have consumed a significant amount of alcohol it may be wise to refuse to make any statements, refuse all field sobriety testing, and refuse to submit to breath or blood alcohol tests. 

Florida DUI Penalties

The following describes the penalties possible upon DUI conviction in the State of Florida.  This information was obtained from the Florida Department of Highway Safety and Motor Vehicles.

Fine Schedule s. 316.193(2)(a)-(b), F.S.

• First Conviction: Not less than $250, or more than $500. With Blood/Breath Alcohol Level (BAL) of .20 or higher or minor in the vehicle: Not less than $500, or more than $1,000.
• Second Conviction: Not less than $500, or more than $1,000. With BAL of .20 or higher or minor in the vehicle: Not less than $1,000, or more than $2,000.

  Third Conviction More than 10 years: Not less than $1,000, or more than $2,500. With BAL of .20 or higher or minor in the vehicle: Not less than $2,000.
  

• Third Conviction Within 10 years: Not more than $5,000. With BAL of .20 or higher or minor in the vehicle. Not less than $2,000.
  
• Fourth or Subsequent Conviction: Not less than $1,000. With BAL of .20 or higher or minor in the vehicle. Not less than $2,000.

Community Service – s. 316.193 (6)(a), F.S.

First Conviction: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required.

Probation – s. 316.193 (5)(6), F.S.

First conviction, total period of probation and incarceration may not exceed 1 year.

 

Imprisonment- s. 316.193 (2)(a) 2, 4(b), (6)(j), F.S.

At court’s discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward term of imprisonment.

• First Conviction: Not more than 6 months. With BAL of .20 or higher or minor in the vehicle: Not more than 9 months.
• Second Conviction: Not more than 9 months. With BAL of .20 or higher or minor in the vehicle: Not more than 12 months. If second conviction within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive.
• Third Conviction: If third conviction within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If third conviction more than 10 years, imprisonment for not more than 12 months.
• Fourth or Subsequent Conviction: Not more than 5 years or as provided in s.775.084, Florida Statutues, as habitual/violent offender.

Impoundment of Immobilization of Vehicle – s. 316.193 (6), F.S.

Unless the family of the defendant has no other transportation: First conviction = 10 days; second conviction within 5 years = 30 days; third conviction within 10 years = 90 days. Impoundment or immobilization must not occur concurrently with incarceration. The court may dismiss the order of impoundment of any vehicles that are owned by the defendant if they are operated solely by the employees of the defendant or any business owned by the defendant.

Conditions for Release of Persons Arrested for DUI-s. 316.193 (9), F.S.

• The person is no longer under the influence and;
• The person’s normal faculties are no longer impaired
• The person’s blood/breath alcohol level is lower than 0.05; or
• Eight hours have elapsed from the time the person was arrested.

DUI Misdemeanor Conviction: (Accident Involving Property Damage or Personal Injury)-s. 316.193 (3), F.S.

Any person who causes property damage or personal injury to another while driving under the influence is guilty of a First Degree Misdemeanor (not more than $1,000 fine or 1-year imprisonment).

DUI Felony Conviction: (Repeat Offenders or Accidents Involving Serious Bodily Injury)-s. 316.193 (2),(3) F.S.

• Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment).

• Any person who causes serious bodily injury while driving under the influence is guilty of a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment) or if habitual/violent felony offender as provided in s. 775.084, F.S.

Manslaughter and Vehicular Homicide-s. 316.193 (3), F.S.

• DUI/Manslaughter: Second Degree Felony (not more than $10,000 fine and/or 15 years imprisonment).
• DUI Manslaughter/Leaving the Scene: A driver convicted of DUI Manslaughter who knew/should have known accident occurred; and failed to give information or render aid is guilty of a First Degree Felony (not more than $10,000 fine and/or 30 years imprisonment).
• Vehicular Homicide: Second Degree Felony (not more than $10,000 fine and/or 15 years imprisonment).
• Vehicular Homicide/Leaving the Scene: A driver convicted of vehicular homicide who left the scene of an accident is guilty of a First Degree Felony (nor more than $10,000 fine and/or 30 years imprisonment).

Driver License Revocation Periods for DUI-s. 322.271, F.S. and s. 322.28,F.S.

A. First Conviction: Minimum 180 days revocation, maximum 1 year.

B. Second Conviction Within 5 Years: Minimum 5 years revocation. May be eligible for hardship reinstatement after 1 year. Other 2nd offenders same as “A” above.

C. Third Conviction Within 10 Years: Minimum 10 years revocation. May be eligible for hardship reinstatement after 2 years. Other 3rd offenders same as “A” above; one conviction more than 10 years prior and one within 5 years, same as “B” above.

D. Fourth Conviction, Regardless of When Prior Convictions Occurred) and Murder with Motor Vehicle: Mandatory permanent revocation. No hardship reinstatement.

E. DUI Manslaughter: Mandatory permanent revocation. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years.

F. Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: Minimum 3-year revocation. DUI Serious Bodily Injury having prior DUI conviction is same as “B-D” above.

Commercial Motor Vehicles (CMV) – Alcohol-Related Convictions/Disqualifications-s. 322.61, F.S.

• Persons convicted of driving a commercial motor vehicle with a blood alcohol level of .04 or above or refusing to submit to a test to determine the alcohol concentration while driving a commercial motor vehicle, driving a commercial motor vehicle while under the influence of alcohol or controlled substance, or driving a commercial motor vehicle while in possession of a controlled substance shall be disqualified from operating a commercial motor vehicle for a period of 1 year. This is in addition to any provisions of s. 316.193 for DUI convictions.
• Second or subsequent conviction of any of the above offenses arising out of separate incidents will result in a permanent disqualification from operating a commercial motor vehicle.
• There are no provisions for persons disqualified from operating a commercial motor vehicle to obtain a hardship (business or employment) license to operate a commercial motor vehicle.

Business Purposes Only/Employment Purposes Only Reinstatements-s. 322.271, F.S. and s. 322.28, F.S.

• First Conviction: Must complete DUI school, apply to department for hearing for possible hardship reinstatement. Mandatory ignition interlock device for up to six months for BAL of .20 or higher, or for two years if BAL is greater than .20.

• Second Convictions (or more): No hardship license except as provided below. Mandatory ignition interlock device for one year, effective 07/03.
• Second Conviction Within 5 Years: (5-Year Revocation) May apply for hardship reinstatement hearing after one year. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement. Mandatory ignition interlock device for one year or for two years if BAL is greater than .20.
• Third Conviction Within 10 Years: (10-Year Revocation) May apply for hardship reinstatement hearing after two years. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in the cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement.  Mandatory ignition interlock device for two years.
• DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Revocation): May be eligible for hardship reinstatement after 5 years have expired from date of revocation or expired from date of term of incarceration provided the following requirements have been met:

1. Has not been arrested for a drug-related offense for at least 5 years prior to the hearing;

2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;

3. Has been alcohol and drug-free for at least 5 years prior to the hearing; and

4. Must complete a DUI school and must be supervised under the DUI program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license).

5. Ignition interlock device required for two years.

• Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: (3 Year Revocation): May immediately apply for hardship reinstatement hearing. Must complete DUI school or advanced driver improvement course.

DUI School Requirements – s. 316.193 F.S., s. 322.271, F.S., s. 322.291, F.S.

• First Conviction: Must complete DUI school before hardship reinstatement. Customers who wait out revocation period before reinstatement need only show proof of enrollment or completion to become re-licensed. If customer enrolls and is reinstated after revocation period expires, failure to complete the DUI school within 90 days after reinstatement will result in license cancellation; the driver cannot then be re-licensed until DUI school is completed.

• Second Conviction in 5 Years (5-Year Revocation) or Third Conviction in 10 Years (10-Year Revocation): Customer must complete DUI school following conviction. See requirements in 13C and 13D respectively.

• DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Revocation): Must complete DUI school before hardship reinstatement.

• Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide: (Minimum 3 year Revocation): See 13F
• Customers Who Wait Until Revocation Period Expires: Must enroll in DUI school and pass the driver license examinations to be re-licensed. Failure to complete the school within 90 days after such reinstatement will result in cancellation of the license until the school is completed.

• Reckless Driving: If the court has reasonable cause to believe that the use of alcohol, chemical or controlled substances contributed to a violation of reckless driving, the person convicted of reckless driving must complete DUI school if ordered by the court.

• Treatment: Treatment resulting from a psychosocial evaluation may not be waived without a supporting psychosocial evaluation by a court appointed agency with access to the original evaluation.

**The above information is for informational purposes only and is not intended to be legal advice.  It is recommened anyone with questions consult with an attorney**

Beer Alcohol Content Chart

Check out the following %alcohol content statistics for the following popular beers:

 

Domestic and Imported Beers
Product	Country	% Alc/Vol
Anchor Porter	USA	5.66
Anchor Steam Beer	USA	4.63
Andeker	USA	4.71
Asahi Draft Beer	JAP	5.21
Ballantine India Pale	USA	6.39
Ale
Ballantine Beer	USA	4.82
Ballantine XXX Ale	USA	5.38
Bass Pale Ale	UK	4.83
Beamish Irish Stout	IRL	3.73
Beck’s Beer	GRM	5.13
Black Horse Ale	USA	4.74
Blatz Beer	USA	4.86
Boulder Porter	USA	6.07
Budweiser Beer	USA	4.65
Bud Dry	USA	4.80
Busch Beer	USA	4.72
Carling Black Label	USA	4.46
Carlsberg Beer	DEN	5.10
Carta Blanca Beer	MEX	4.02
Colders 29 [degrees]	USA	4.79
Tacate Beer	MEX	4.30