Jason Hicks Law Firm

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1. Should I use the Public Defender or hire a private DUI attorney?


I cannot say enough good things about the Public Defender’s Office. They do so much good for their clients with the little resources allocated to them. Many Public Defenders have a world of experience. That being said, a citizen of Florida has a right to the attorney of their choice. If you are assigned a Public Defender, you do not get to pick your lawyer. If you find that your Public Defender is inexperienced, you cannot change attorneys unless you hire a private lawyer. Also, the Public Defender’s Office is unfairly underfunded. An individual Public Defender may have over 200 cases and very little time to devote to each individual case. In addition, the Public Defender’s Office will not represent you at the critical administrative hearings involving your driver’s license suspension. When you refuse to submit to a breath test or blow over .08, in most cases your license will be suspended for 1 year for the refusal, or 6 months for blowing over .08. You have 10 days to challenge these suspensions. A private lawyer should know the defenses to these suspensions and will fight the DMV to have your full driving privileges restored. The Public Defender's Office does not offer this service.


2. Should I take the breath test?


This is the single most commonly asked question in DUI defense and the answer depends on the facts and circumstances. You have to make this decision for yourself. The best way to decide is to educate yourself about what the State needs to prove for you to be convicted of DUI. The State must prove you were driving or in actual physical control of a vehicle, and while driving, you: 1) Were under the influence of alcoholic beverages or controlled substances to the extent that your normal faculties are impaired. OR 2) You had a breath-alcohol level of .08 or more grams of alcohol per 210 liters of breath. YOU CANNOT BE FORCED TO SUBMIT TO A BREATH TEST IN FLORIDA. Only under severely limited circumstances can you be forced to submit to a blood test. In Florida, if you chose to submit to a breath test, and your breath-alcohol level is .08 or more, you gave the State critical evidence needed to convict you of DUI (assuming there are no legal defenses available to you and assuming the Prosecutor will not take mercy on you and amend the charge to a lesser offense). If you have been consuming alcohol, you run the risk of your breath test result being .08 or greater. That risk is increasingly true if you feel the effects of the alcohol upon you. If you have not been consuming alcohol, the breath test instruments should not detect alcohol (assuming they were working properly). The breath test instrument should be calibrated and tested for accuracy prior to your use, however the instrument, and its operators are not perfect. Another important factor you need to be educated about is what is called “Implied Consent.” In Florida, if you refuse to take the breath test when arrested for DUI, you will lose your driving privileges for a period of 1 year, and if you have refused in the past, you will lose your driving privileges for a period of 18 months. However, if you do blow over .08, you will lose your license anyway but for 6 months instead of the full year for a refusal. Keep in mind that the refusal suspensions and over.08 suspensions described in this paragraph are able to be successfully challenged in many instances. Keep in mind that if you are convicted of DUI, regardless of whether you submitted to a breath test, or refused, the Judge is required to suspend your license at the time of the DUI conviction. Whether or not to submit to a breath test also depends upon whether you have refused in the past. A second refusal is a separate and addition crime. As a first degree misdemeanor, you are subject to criminal penalties. After considering the above information, you make the determination whether or not to submit to a breath test.


3. What are the probable penalties for my first time DUI if I am convicted?


There are mandatory and discretionary first-time DUI penalties. The penalties depend upon the facts of the case and the practices of the prosecutor and judge. Some prosecutors and judges are harsher than others. However, there are minimum and maximum penalties. If you are convicted of a first time simple DUI, (assuming there are no aggravating factors) you must be placed on up to 12 months of supervised probation, pay a fine of at least $500, but no more than $1000, complete 50 hours of community service, pay court costs, submit to a 10 day vehicle immobilization, your license will be suspended for 6 – 12 months (separate from the refusal or .08 license suspension), and you must complete a DUI school. There are also discretionary penalties that may also be imposed such as the Victim Awareness Program and AA meetings. Again, this is a “ballpark” summary of common first-time DUI penalties when there are no aggravating factors such as property damage, injury, prior offenses, minors in the vehicle, and very high breath alcohol levels (over .15).


4. Will I go to jail?


The answer to this question depends greatly on the facts and the criminal history of the offender. For a first time simple DUI, an offender can be sentenced up to 6 months in county jail (9 months if the offender had a .15 breath alcohol level or above). However, a jail sentence for a first time offender when there are no aggravating factors such as property damage, injury, and minors in the vehicle are rare. If aggravating factors are present, the chances of an offender getting jail time increases. For a second DUI conviction an offender can get up to 9 months in county jail (1 year if the offender had a .15 breath alcohol level or above). Although you probably will not get the maximum jail for a second DUI, when someone is convicted of 2 DUI’s within a 5 year period, 10 days jail is a mandatory minimum. A second DUI conviction often carries some jail time and the amount will depend on the facts of the case and the practices of the prosecutor and judge.For a third DUI conviction, expect jail time, if not prison. If the third conviction is within 10 years of a prior, the Defendant is facing a 3rd degree felony conviction and faces up to 5 years in prison. There is mandatory jail time of at least 30 days. If the third conviction is not within 10 years of any prior, the Defendant is charged with a 1st degree misdemeanor and faces jail time up to 12 months. Considering the implications of possible jail time, it is very important to hire an attorney who is experienced in DUI defense and who knows the technical defenses to a DUI charge.


5. Will getting a DUI conviction affect my job?


Probably yes, to some degree. Your driving privileges will most certainly be affected by your DUI arrest and conviction. It is an unfortunate possibility with any DUI conviction that you could lose your job. This is particularly true if you drive for work or hold a security clearance. Think of DUI punishments like a domino effect. Losing your driving privileges could very well affect your ability to get to work. Also, if you drive as part of your employment, a suspended license will greatly hurt your ability to do your job. Many security clearances can be affected by your criminal conviction as well. Obviously, if you are subjected to jail time, that means missed work and an unhappy employer.


6. My ticket says I can only drive for 10 days, is that true?


Not necessarily. In the State of Florida, when you refuse to submit to a breath test, or if you blow over .08, you have a right to drive for only 10 days following your arrest for DUI. Within that 10 day time period you have a right to challenge the suspension of your license. Once you challenge that suspension and set it for a hearing, you will get an extra 42 day temporary driving permit allowing you to drive for business purposes only. If you successfully challenge the suspension, your full driving privilege will be restored. If you do not challenge the suspension, your license will be suspended on the 11th day for the appropriate time period unless you waive the formal review hearing and your right to challenge it. See the Update in the law below and also question 15 for more details.


UPDATE IN THE LAW: You may be able to waive the formal review hearing and immediately get a restricted license assuming you don't have any prior refusal suspensions or a prior suspension for an illegal breath or blood alcohol level. See question 15 for more details on waiving a formal review hearing and immediately obtaining a restricted license.


7. What happens at the arraignment or first court date?


If you are not represented by an attorney, you must be present at the first court appearance called the arraignment. If you fail to appear at the arraignment, the judge will likely issue a warrant for your arrest. At the arraignment, the judge will ask you how you plead to the charge and ask if you want to either hire a lawyer, or seek the services of a public defender. Never plead Guilty or No Contest at the arraignment. Only a fool would do so without having a lawyer, or at least the public defender’s lawyer, review your case for defenses. Even if you believe the evidence against you is overwhelming, there are many technical defenses to DUI that a trained DUI lawyer will find. If you have hired a private lawyer prior to that first court date, the lawyer will either appear on your behalf and waive your appearance or cancel that court date altogether. A private lawyer can appear on your behalf, and you can go about your business. This is a part of the luxury and service a lawyer provides. The lawyer can waive your appearance at most court dates allowing you to live your life while the lawyer prepares and defends your case.


8. I don’t think I was drunk. Can I still be convicted of DUI?


You do not have to be drunk to be convicted of DUI in Florida. If the State can prove that your normal faculties (your ability to walk, talk, drive a car, judge distances, make decisions, act in emergencies) are impaired by alcohol or controlled substances, you can be found guilty of DUI. Impairment is a lesser standard than drunk. Essentially, if the State can prove your normal faculties are lessened to a material degree, even if not full-blown drunk, you can be convicted of DUI. In addition, even if you have not consumed alcohol, it is still illegal to consume controlled substances to impairment and drive, even with a prescription.


9. What happens if I violate DUI probation?


You run the risk of being given up to the maximum jail time for the crime charged. There are defenses to allegations of violations of probation. To prove you violated probation, the State must prove that you willfully and substantially violated probation.


10. The evidence against me appears to be overwhelming, are there technical defenses?


A technical defense may apply to your DUI case. These defenses are not intuitive to the untrained but a trained lawyer knows what to look out for. There are so many technical defenses (“technicalities”)to DUI that they cannot be listed here. Call my office for a free consultation so that I may examine your case for the defenses if they apply.


11. I blew over .08, do I have a chance of not being convicted of DUI?


Even if you blew over .08, you may still beat the DUI charge or have it amended to a lesser charge. There are many technical defenses to DUI. Many of these apply to the breath test. The problems with the breath test machine (Intoxilyzer) are well documented in Florida. Much can go wrong with these machines. If the machine is not working correctly or not in substantial compliance with the administrative rules, the results cannot be used against the accused. These instruments are greatly regulated and the strict maintenance requirements must be strictly complied with. Any major deviation from the requirements could result in a jury not even being allowed to know what the breath test results were.


12. The officer pulled me over for no good reason. Does that matter?


In this country we have certain rights under the United States Constitution. The 4th Amendment guarantees that we cannot be stopped by the government unnecessarily without a warrant. If the police want to stop and detain you without a warrant, they have to have a “reasonable suspicion” that you committed a crime or traffic infraction. If the judge presiding over your case agrees that the police officer stopped you illegally (without reasonable suspicion), and as a result of the stop they find evidence or contraband, that evidence or contraband is deemed inadmissible against you. A Brevard County DUI Defense lawyer will file a Motion to Suppress evidence in order to raise this issue with the Court. Often in a DUI case, all necessary evidence of guilt (your identity, odor of alcohol, admissions of alcohol consumption, field sobriety exercises, breath test, etc.) is gathered after the illegal stop. When the Court throws out this evidence, it could result in the entire case against you being dismissed.


13. Can I be convicted of DUI when I was under the influence of my prescribed medication?


Yes. DUI charges based on drug impairment are becoming increasingly more common. The State of Florida has a list of substances that not only require a prescription to possess, but also cannot be consumed to impairment prior to driving a car. Many prescribed medications, especially those for pain, are on that list. If you take your prescribed medication, and it causes you to be impaired, you cannot then drive a car without running afoul of the law.


14. What are the field sobriety tests and agree to take them?


Field Sobriety Exercises or Tests are a series of standard physical tasks that require coordination, balance, strength, and concentration. These tasks are used by law enforcement as a tool to determine whether someone is impaired by drugs or alcohol. If a person's performance is poor, the officer may decide that the person must have performed poorly because of drug or alcohol impairment. Officers usually base a large part of their decision whether to arrest someone on their ability to perform these tasks. Age, athleticism, sex, body weight, balance, health, and overall physical ability directly affect one's ability to successfully perform the test. I often advise clients against taking field sobriety tests in most cases because in my opinion they are fundamentally unfair and misleading. Field sobriety tests, unlike breath tests, are not required under Florida Law and your driver’s license cannot be suspended if you do not take a field sobriety test. The same tests are offered to young athletic people, healthy people, elderly people, and overweight and injured people. Poor performance due to physical injury or illness can easily by misdiagnosed as impairment by a law enforcement officer with no medical training. Every person's normal faculties are different and should not be graded by standardized physical tests. Not when one's criminal record and liberties are at stake. In many cases, someone’s performance on these tests can be affected by nervousness, the hectic roadside environment (flashing lights, other traffic, road conditions, the temperature, etc…). Also less athletic people are way more likely to be arrested mistakenly.


15. Should I demand a formal review hearing to challenge my license suspension, or should I waive the formal review hearing in order to immediately get a hardship license?


WHICHEVER YOU CHOOSE, IT MUST BE DONE WITHIN 10 DAYS OF YOUR ARREST You may be able to waive the formal review hearing and immediately get a restricted license assuming you don't have any prior refusal suspensions or a prior suspension for an illegal breath or blood alcohol level. However, this should only be done after meeting with a knowledgeable attorney to see if there are any defenses to the license suspension. In many cases, Jason advises clients to waive the hearing if they are eligible to do so. However, sometimes he advises them to him to fight the suspension if there is a successful defense that exists or if the person is not eligible to waive the hearing. Waiving the formal review hearing is not a "one size fits all solution." It should only be done if the facts of your case recommend it. Some people, such as those who have any prior refusal suspensions or a prior suspension for an illegal breath or blood alcohol level are not qualified to waive the formal review hearing and are ineligible to immediately get a hardship license. Those individuals most certainly should demand a formal review hearing. The cost is $25 to demand a hearing and those who do demand it will immediately get a 42 driving permit, assuming your license is not otherwise suspended for some other reason. Even if you lose the hearing and your license goes into suspension, that extra 42 days of driving is obviously worth the $25 it costs to obtain it. Those who are eligible to waive the formal review hearing (they don't have any prior refusal suspensions or a prior suspension for an illegal breath or blood alcohol level) may not want to do so if there is a high probability of winning at a formal review hearing and of getting the license suspension dismissed. This requires a knowledgeable DUI attorney who can review the facts of your specific case to determine if successful defenses exist. Each case is different and what might be good for one person, might not be good for the next person. DUI is very fact specific and one minor fact can change a defense strategy drastically.

Frequently Asked Questions About DUI

Most people arrested for DUI have the same common questions:


1. Should hire a private DUI attorney or use the public defender? 

2. Should I take the breath test?

3. What are the probable penalties for my first time DUI if I am convicted?

4. Will I go to jail?

5. Will getting a DUI conviction affect my job?

6. My DUI ticket says I can only drive for 10 days, is that true?

7. What happens at the arraignment or first court date?

8. I don’t think I was drunk. Can I still be convicted of DUI?

9. What happens if I violate DUI probation?

10. The evidence against me appears to be overwhelming, are there technical defenses?

11. I blew over .08, do I have a chance of not being convicted of DUI?

12. The officer pulled me over for no good reason. Does that matter?

13. Can I be convicted of DUI when I was under the influence of my prescribed medication?

14. What are the field sobriety tests and agree to take them?

15. Should I demand a formal review hearing to challenge my license suspension, or should I waive the formal review hearing in order to immediately get a hardship license?

The material presented on the Jason Hicks Law Firm, PLLC website is intended for information purposes only. It is not intended as professional advice and should not be construed as such. FLORIDA LAW CHANGES RAPIDLY AND THE DISCUSSIONS OF LEGAL ISSUES CONTAINED IN THIS WEBSITE ARE NOT UPDATED DAILY. SPEAK TO A LAWYER FOR UP TO DATE LEGAL ADVISE. DO NOT RELY SIMPLY ON A WEBSITE. Transmission of the information and material herein is not intended to create, and receipt does not constitute, an agreement to create an attorney-client relationship with the Jason Hicks Law Firm or any member thereof. Some links within this website may lead to other sites. Jason Hicks Law Firm does not necessarily sponsor, endorse or otherwise approve of the materials appearing in such sites.

Former State Prosecutor



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