Understanding Florida Law, Penalties, and Defenses

As a Florida DUI defense lawyer, one of the most common questions I hear from clients is whether a third DUI charge will automatically be treated as a felony. The truth is that it depends on the timing of your prior convictions, the circumstances of your arrest, and how prosecutors decide to file the case. A third DUI in Florida is not always a felony, but it can be, and the consequences can be severe.

When someone calls my office after being arrested for a third DUI, they are usually scared, confused, and worried about losing their freedom and driver’s license. My job is to carefully examine the facts, the law, and the state’s evidence to determine whether the charge is properly classified and to fight for the best possible outcome.

Florida DUI Law: What the Statutes Say

The starting point for understanding a third DUI charge is Florida Statutes Section 316.193, which defines driving under the influence and outlines penalties for repeat offenders.

Here is the statute language that applies:

Fla. Stat. §316.193(1): “A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.”

The statute then sets out escalating penalties for repeat offenses:

Fla. Stat. §316.193(2)(b)1.: “Any person who is convicted of a third violation that occurs within 10 years after a prior conviction for DUI commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

This means:

  • If your third DUI is within 10 years of a prior conviction, it is a third-degree felony.

  • If your third DUI is outside of 10 years, it is still a misdemeanor, but the penalties are enhanced compared to a first or second offense.

This timing difference is critical, and it is one of the first things I evaluate when a client is facing a third DUI charge.

When a Third DUI is a Felony vs. a Misdemeanor

To break it down more clearly:

  • Third DUI within 10 years of any prior DUI conviction: Felony of the third degree, punishable by up to 5 years in prison and a 10-year license revocation.

  • Third DUI more than 10 years after the last DUI conviction: Still a misdemeanor, but punishable by up to 12 months in jail, a $5,000 fine, and mandatory ignition interlock installation.

This is why the details of your prior record matter so much. A skilled DUI defense lawyer will analyze the dates, prior court filings, and whether the state can even prove that the prior convictions are valid and admissible.

Why You Need an Attorney to Challenge Prior Convictions

The prosecution must prove not only the new DUI but also that your prior DUI convictions were valid and meet the statutory requirements. I have successfully challenged prior convictions on the basis that:

  • The prior plea was not entered with a proper waiver of rights.

  • The records from the prior case were incomplete or missing.

  • The conviction occurred in another state and does not qualify under Florida law.

If the state cannot properly prove up your priors, then what might have been filed as a felony could be reduced to a misdemeanor. This can make the difference between state prison and a county jail sentence, or even probation.

Defenses to a Third DUI Charge

Every DUI case is unique, and a third DUI charge does not automatically mean conviction. Common defenses I raise include:

  • Illegal traffic stop: If the officer lacked reasonable suspicion, the stop may be unlawful.

  • Improper field sobriety tests: These tests are often administered incorrectly and can be challenged.

  • Faulty breath test machines: Florida uses the Intoxilyzer 8000, which has known reliability issues.

  • Medical conditions: Certain health issues can mimic impairment.

  • Lack of actual physical control: The state must prove you were driving or in control of the vehicle.

Each defense requires careful investigation, motions to suppress, and sometimes the use of expert witnesses. A private attorney has the time and resources to pursue these avenues in ways a public defender often cannot due to caseload limits.

Real Case Example: Reducing a Felony DUI to a Misdemeanor

Several years ago, I represented a client in Tampa who was arrested for what the state filed as a third DUI felony. The arrest occurred after he was stopped for swerving. He had two prior DUI convictions, one in Florida and one in Georgia.

After reviewing the records, I discovered that his Georgia conviction was missing a proper waiver of rights transcript. The state could not prove it up as a qualifying prior under Florida law. I filed a motion to strike that prior conviction, and the judge agreed.

With only one valid prior left, the felony charge could not stand. The case was refiled as a misdemeanor, and I negotiated a resolution that spared my client from prison and allowed him to serve probation with treatment. He kept his job, avoided a felony record, and was able to move forward with his life.

This case highlights why it is essential to have a skilled private DUI defense attorney who knows how to challenge prior convictions and force the state to meet its burden.

Other Relevant Florida Statutes That Apply

In addition to §316.193, other statutes play a role in third DUI cases:

  • §322.28(2)(a)3. – Requires a minimum 10-year driver’s license revocation for a third conviction within 10 years.

  • §316.1937 – Authorizes mandatory ignition interlock devices for repeat offenders.

  • §775.082 and §775.083 – Provide the sentencing guidelines and fine ranges for felony and misdemeanor offenses.

A third DUI conviction can also affect professional licenses, insurance, and even child custody matters. The collateral consequences can be just as damaging as the criminal penalties, which is another reason why aggressive legal representation is vital.

Why a Private Attorney Makes a Difference

When you are facing a third DUI, your future is at stake. A felony conviction means prison, a permanent criminal record, and a decade without a license. Even a misdemeanor third DUI can mean significant jail time and crushing financial penalties.

A private attorney has the ability to:

  • Investigate the stop, arrest, and testing procedures.

  • File motions to suppress evidence.

  • Challenge prior convictions.

  • Negotiate reduced charges or alternative sentencing.

  • Take the case to trial if necessary.

I have dedicated my career to defending people in your position, and I know the difference it makes when someone has a lawyer who will fight for them.

FAQs About Third DUI Charges in Florida

Is a third DUI always a felony in Florida?
No, a third DUI is only a felony if it occurs within 10 years of a prior conviction. If it happens after 10 years, it is a misdemeanor, although with enhanced penalties. This distinction is critical, and an attorney can often challenge whether the state has the right to classify it as a felony.

What are the penalties for a third DUI within 10 years?
A third DUI within 10 years is a third-degree felony. It carries up to five years in prison, a $5,000 fine, mandatory probation, community service, DUI school, and a 10-year license revocation. It may also include an ignition interlock requirement. These penalties can devastate someone’s life if not aggressively defended against.

Can I still go to jail for a third DUI more than 10 years later?
Yes, even if the third DUI is outside the 10-year window, you can face up to 12 months in jail. Judges also have the discretion to impose probation, treatment programs, fines, and ignition interlock. While not a felony, the consequences are still serious and require skilled legal defense.

How does the prosecutor prove my prior DUI convictions?
The state must present certified records of your prior convictions and show that those convictions meet Florida’s legal standards. If a prior case was out-of-state or the paperwork is incomplete, a defense lawyer may be able to keep it from being used to enhance your charge.

What happens to my driver’s license if convicted of a third DUI?
A third DUI within 10 years triggers a mandatory 10-year revocation under §322.28. Even if the offense is outside the 10-year period, the Department of Highway Safety and Motor Vehicles may impose restrictions and require an ignition interlock device. An attorney can represent you both in court and in administrative license proceedings.

Can I fight a third DUI case at trial?
Yes, and many cases can be won at trial. Breath test results can be attacked, officer testimony can be cross-examined, and witnesses can be presented to support your defense. Having a lawyer who is experienced in DUI trials is key to protecting your rights.

What if I was not driving but was just sitting in my car?
Florida law requires proof that you were “driving or in actual physical control” of a vehicle. If you were parked and not operating the car, the state may have difficulty proving this element. Defense attorneys often use this to challenge DUI charges.

Why should I hire a private attorney instead of relying on a public defender?
Public defenders are dedicated attorneys, but they handle hundreds of cases at once. A private attorney can dedicate the time, resources, and attention needed to fully investigate and challenge every aspect of your case. In felony DUI cases, this difference often determines the outcome.

How long will a third DUI stay on my record?
In Florida, DUI convictions are permanent. They cannot be sealed or expunged. This means that a felony DUI will remain on your record for life. The best chance to avoid that outcome is through aggressive defense before a conviction occurs.

Can treatment or rehabilitation programs help my case?
Yes. Courts often consider voluntary treatment and counseling as mitigating factors. In some cases, I have been able to use my client’s proactive steps to negotiate lighter sentences or alternatives to incarceration. A defense attorney can guide you on what steps will best help your case.

If you or a loved one is facing a third DUI charge in Florida, the stakes could not be higher. The difference between a felony and a misdemeanor can come down to timing, paperwork, and the skill of your attorney.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.