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Florida’s DUI Statute

Florida has some of the most thorough DUI laws in the United States, and some of the harshest penalties.  Florida Statutes Section 316.193 details Florida’s DUI law and the penalties for violating the law. The penalties for DUI are summarized in an easy-to-read format on a separate page of this site.  If you have been arrested for DUI, the State is required to prove your guilt beyond and to the exclusion of every reasonable doubt.  In order to prove the criminal charge of Driving Under The Influence, the State must prove two basic elements:

1. 1.  The accused was “driving or in actual physical control of a vehicle within this state;”
   

2. 2.  The accused was under the influence of alcohol or drugs “when affected to the extent that the person's normal faculties are impaired,” OR has a “blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood,” OR has a “breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.”
   

Let’s take a look at the first element, “driving or in actual physical control.”  Everyone knows what “driving” means, but the concept of “actual physical control” is a more troubling concept.  According to Florida’s Standard Jury Instructions In Criminal Cases, “actual physical control of a vehicle” means that the accused “must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he or she] is actually operating the vehicle at the time.”  Even if someone has had a few drinks and believes that they are doing the right thing by not driving, they can still legally be arrested for DUI if, for example, they are sleeping in the car and the keys are nearby.

Just as everyone knows what “driving” is, most people also know that “0.08 is the limit.”  While it is true that it is unlawful to drive or be in actual physical control while your breath or blood contains 0.08 grams of alcohol per 100 mL of blood, or 0.08 grams of alcohol per 210 liters of breath, it is also unlawful to drive or be in actual physical control of a vehicle while under the influence of drugs or alcohol while your “normal faculties” are impaired.  According to the Standard Jury Instructions In Criminal Cases, “normal faculties” include, but are not limited to “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, to normally perform the many mental and physical acts of our daily lives.” In the typical DUI case, the officer will have had the accused perform a series of roadside sobriety tests to determine if the accused’s normal faculties are impaired.  Though the officer most likely does not know the accused’s normal physical or mental abilities, he will form an opinion as whether the driver’s normal faculties are impaired, and that opinion, combined with the officer’s other observations, often results in an arrest.  Because the law contemplates situations where someone accused of DUI will refuse to give a breath, urine, or blood sample, this provision enables the Government to prosecute alleged DUI offenders if they refuse to give such a sample.  It also gives the prosecutor a back-up plan if the accused was “under the limit” or had not consumed alcohol at all, as is the case when one is accused of Driving Under The Influence of Drugs.

Although this is the current state of the law, it does not mean that your case is hopeless.  I have successfully obtained dismissals and reductions to lesser charges in many DUI cases.

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