A charge of driving under the influence, or DUI, in Florida is a serious offense. Subsequent convictions, such as a conviction for a fifth DUI offense, are punishable by lengthy periods of incarceration coupled with substantial collateral consequences including long periods of probation, expensive fines, and fees, along with the mandatory installation of an ignition interlock system, and impoundment of the subject vehicle.

Title XXIII, Chapter 316, section 193 of the Florida statutes governs the offense of DUI. The government of Florida, represented by the state’s attorney, assumes the burden of proof in a DUI criminal prosecution. The person charged with the crime must receive the benefit of an acquittal if the government fails to present sufficient evidence to sustain its burden of proof, which is to prove the case beyond a reasonable doubt.

Section 316.193(1) sets out the elements the government must prove in its case against accused. The government must prove that the accused was either operating a vehicle or in control of a vehicle within the state of Florida. Additionally, the state must prove that either the operator or the person in control over the car either,

  • Had his or her normal faculties impaired by the consumption of alcohol, illegal drugs, prescription drugs, or a combination thereof, or
  • Had at least 0.08 grams of alcohol in 100 milliliters of blood, or
  • Had at least 0.08 grams of alcohol in 210 liters of breath. 
  • The government will use the evidence obtained by the officer, including field sobriety tests, whether conducted roadside or at the detention facility, along with a breathalyzer test or a blood test to prove its case. As with any prosecution, the government bears the burden to prove that all testing devices were working correctly at the time the testing was done, and the analysis was correct. 

    If the state’s attorney sustains the burden of proof on the underlying charge, then the penalty phase of the prosecution begins. Under §316.193(6)(m), the state can use a previous conviction from within the state of Florida or a conviction from another state for a similar charge as evidence that the defendant was previously convicted for DUI. 

    The burden the state has when proving a prior offense is not high if the conviction was in Florida. Under §316.193(12), the state may rely on evidence maintained by the Florida Department of Highway Safety and Motor Vehicles to prove the defendant was convicted of prior DUI offenses in Florida. The accused, however, has the opportunity to rebut the evidence proffered by the state. Both the government and the accused may present evidence supporting their relative positions. 

    Punishment for a Fifth DUI Conviction in Florida

    A conviction for a fifth DUI offense in Florida is a third-degree felony. Florida law does not distinguish penalties for DUI convictions that exceed a fourth offense. Technically, therefore, a fifth DUI conviction is the same as for a fourth DUI conviction. However, the judge has the discretion to sentence the person convicted for DUI to as much as five years to a Florida state penitentiary for a third-degree felony pursuant to §775.082. Additionally, 30 days of that sentence must be served. The judge can order the person to jail for intermittent periods, however, 48 hours of the 30-day minimum sentence must be served consecutively. 

    Florida’s habitual felony law could come into play for a person convicted of a fifth DUI offense in Florida. Florida’s habitual felony offender law, found at §775.084, gives the state’s attorney the discretion to prosecute the person charged with a fifth offense DUI provided that the offender’s previous history satisfies the statutory requirements. If the government chooses to prosecute the person charged with a fifth DUI offense as a habitual felony offender, then the person faces a maximum prison sentence of 10 years. The term of imprisonment could be ten years, with five years of minimum-mandatory time, depending on the nature of the accused’s previous felony record, especially if the record contains acts of violence.

    Fifth Offense Conviction Collateral Consequences

    The person who was convicted of a fifth DUI offense in Florida faces strict collateral consequences in addition to incarceration. The judge must impose a $2,000.00 fine, but the fine could be as much as $5,000.00 according to §775.083. Furthermore, the court must assess $50.00 in court costs to the person upon conviction. The judge can allow the person to perform community service in lieu of payment of any fines and fees. 

    Probation is another mandatory requirement of a Florida DUI conviction. The person convicted of a fifth offense DUI in Florida will likely have a long period of probation along with a court-imposed commitment to a residential substance abuse rehabilitation facility. The facility must be certified and conduct random testing and screening for drug and alcohol use among the residents. Additionally, the person must attend a Level II DUI driving program. Failure to satisfy these conditions of probation could result in additional incarceration. The probationer must pay off the costs of attending these programs.

    The convicted offender does receive the benefit of inpatient or residential substance abuse treatment. However, Section 316.193(6)(m) provides that the offender will receive time credit off of his or her prison sentence for every day spent in a residential substance abuse treatment program. 

    The sentencing judge may impound, or order immobilized, the vehicle the convicted person was driving when arrested, and all other vehicles owned individually or jointly with others. The term of impoundment will not exceed 90 days. However, the impoundment or immobilization term must occur while the person is eligible to drive and not while incarcerated. The judge could waive or dismiss an impound order under numerous circumstances, including assurances that the offender installed an ignition interlock device in all of the vehicles to which the offender has access.

    The requirement of an ignition interlock device will not be imposed until the offender becomes eligible to receive a business hardship license. At that point, the offender must install the interlock device and maintain it at his or her expense, for at least five years