DUI Defense Lawyer in Cape Coral, Florida (FL)
Driving Under the Influence of Alcohol or Drugs (DUI) Law, Punishments, and Defenses
DUI Arrest in Cape Coral
The state’s attorney office for the Twentieth Judicial District in Florida prosecutes DUI offenders from Cape Coral. The state’s attorneys assigned to prosecute DUI cases take their role seriously. They fight vigorously for convictions in DUI cases, and if they are successful, they ask for severe penalties, punctuated by lengthy jail sentences and oppressive conditions of probation. Therefore, a DUI arrest in Cape Coral has the potential to alter your life substantially, unless you align yourself with Musca Law, which is a law firm that has the experience, determination, and trial skills to defend your case successfully and minimize the disruption a simple mistake could have on your life.
DUI is just one of the numerous driving charges a person could face after an arrest while allegedly driving after drinking. A person can be convicted under Florida Statutes §316.193 if the state’s attorney proves beyond a reasonable doubt that:
- The accused operated a vehicle or exercised physical control over a car; and
- Was under the influence of alcohol, under the influence of any substance delineated in Florida Statutes §877.111, or any of the controlled substances identified in Chapter 893 of the Florida Statutes, OR
- A blood alcohol concentration (BAC) of 0.08 grams or more of alcohol per every 100 milliliters of blood or has a BAC of 0.08 grams or more per every 210 liters of breath.
Thus, the state’s attorney has three legal theories to pursue when prosecuting a person in Cape Coral for DUI. The legal arguments are not mutually exclusive and can be joined with each other. For example, the state’s attorney could allege that the driver of a vehicle arrested for DUI had both alcohol and an illicit drug in their blood. Evidence that the accused ingested both alcohol and a prohibited drug then drove may be sufficient to convict a person for DUI in Cape Coral.
Lee County DUI Penalties
The nature and extent of the penalties a judge will impose upon a person convicted of DUI will depend on whether the person has any prior DUI offenses, or whether the facts of the case allow for enhanced penalties.
First Offense DUI
The penalties established by §316.193 for a first offense DUI conviction are harsh. The judge may sentence the offender to serve up to six months in the county jail. Offenders can receive an incarcerated sentence for a first offense DUI if they have a criminal record. Otherwise, the judge will place the offender on probation for at least one year, order him or her to perform community service, pay a fine between $500.00 and $1,000.00, and suspend the driver’s license for up to one year but no less than 180 days as required by Florida Statute §322.28. The court may also order the defendant to enter and complete a substance abuse program and install an interlocking device on the ignition of any car the offender drives primarily. The court will order the offender to report to probation monthly as well.
Second Offense DUI
The penalties for a second offense DUI would include jail time up to nine months, with a mandatory ten days in jail if the previous crime happened within five years, a fine between $1,000.00 and $2,000.00, and a mandatory ignition interlock for one year. Furthermore, the license suspension for a second offense DUI conviction, if the previous conviction was less than five years before, is five years. Otherwise, the period of revocation is at least one year. The judge will also impose probation, substance abuse counseling, and monthly reporting to probation.
Third Offense DUI
A third DUI conviction would carry a possible five-year prison sentence as a third-degree felony if the previous conviction occurred within ten years of the newest conviction. If the time between second and third convictions exceeds ten years, then the charge becomes a first-degree misdemeanor which is punishable by no more than one year in jail. The person convicted of a third DUI charge must pay a fine between $2,000.00 and $5,000.00. Also, the offender must install an ignition interlock device for two years after the person gets his or her license back after a possible ten-year suspension.
Fourth or Subsequent Offense DUI
A fourth or subsequent DUI conviction is a third-degree felony. The convicted offender faces up to five years in prison, regardless of when the previous convictions occurred. Also, the person’s license will be suspended permanently but can be restored upon applying for a hardship license in highly limited circumstances.
Enhanced DUI Penalties
Multiple DUI convictions increase the possible prison sentences a judge could impose. Additionally, aggravating factors can increase potential penalties, as well. Registering a BAC of 0.15% or above, even if a first offense, increases jail time and warrants the installation of an ignition interlock device.
Accidents involving motorists operating under the influence invoke enhanced penalties as well. A crash that causes property damage or personal injury when someone is DUI is a first-degree misdemeanor. A DUI crash that causes serious bodily injury is a third-degree felony. Finally, DUI manslaughter is a second-degree felony, punishable by imprisonment for a prison term of fifteen years. However, if the person charged did not render aid or otherwise stop, commits a first-degree felony, which is punishable by up to 30 years in prison and a $10,000.00 fine.
Two Punishments for One Arrest: Criminal versus Administrative Penalties
The Florida Department of Highway Safety and Motor Vehicles will suspend a person’s driver’s license administratively, even before a court decides the criminal case. Factors such as chemical test refusal, the driver is under 21, the person has prior arrests, along with other factors, could result in the administrative suspension of the driver’s license. Administrative license suspension is exclusive of any criminal penalties imposed.
Florida law only allows ten days to appeal the administrative decision to suspend the driver’s license. Retaining a DUI defense attorney with a thorough understanding of Florida law could assist you in appealing your license loss immediately upon your release from jail.
How to Get a Temporary Driver’s License After a Cape Coral DUI Arrest
Florida law will grant a temporary driving permit, often referred to as a “hardship” license in certain circumstances. A person under 21, because of Florida’s Zero Tolerance Law, cannot obtain a hardship license, even if the person is not above the “legal limit” of 0.08. However, a person legally eligible to consume alcohol could obtain an administrative review of the officer’s decision to suspend the accused’s privilege to drive. The person has ten days in which to appeal. At the administrative hearing, known as a formal review, an experienced DUI attorney can cross-examine the arresting officer, test administrators, and other witnesses. The administrative hearings officer could reinstate the driver’s license of the accused if the law enforcement officers failed to follow the law. Additionally, filing a request for a formal hearing will provide the accused with a chance to obtain evidence for the criminal trial.
Process of a DUI Criminal Case in Cape Coral
A DUI case begins with some event that occurs while a person is driving. The police could stop the driver because of dangerous driving or while responding to a car accident. The initial police encounter determines what happens next.
- A DUI case must begin with some evidence of operation or control over a motor vehicle. The overwhelming majority of DUI prosecutions start with a car stop by an officer on patrol or while conducting a DUI checkpoint. Once law enforcement officers lawfully stop a vehicle, they can speak with the driver. The officer might have a suspicion that the driver is drunk when he or she stops the car. The officer tries to collect more evidence of intoxication while speaking with the driver. The officer looks for the so-called “tell-tale” signs that someone is DUI: eyes that are glassy, bloodshot, and watery; slow, thick-tongued speech, incoherent speech; difficulty remembering facts; trouble locating or manipulating a driver’s license; and other movements that lead the officer to believe the driver could be impaired. At that point, the officer can order the person out of the vehicle and order the driver to perform field sobriety tests and to take a portable breath test.
- Every state in the Union has an implied consent statute. In Florida, every motorist, by the sole fact of driving a vehicle on a public way, consents to give a blood or breath test by implication. Refusing to provide a breath sample or blood sample is grounds for the government to suspend the suspect’s driver’s license for one year. Also, refusing to give a sample could enable the police to take a sample by force.
- Upon a finding of probable cause, the officer can make an arrest. The driver can make one phone call. Usually, the phone call is to a lawyer or another individual who could post bail. The suspect may not secure release from jail until the person’s BAC drops below 0.05% or eight hours have passed, whichever occurs first.
- The case then moves into court for an arraignment. An arraignment is a hearing in which the accused receives formal notice of the charges, and how the person would like to plead. The person is entitled to plead not guilty. The court will inquire about the defendant’s choice of attorney at that time.
- The case could go before an administrative hearings officer for a review of the administrative license suspension decision. If the accused is under 21, the accused refused to take a breath test, or the accused has multiple prior DUI arrests, then the Florida Department of Highway Safety and Motor Vehicles can suspend the driver’s license of the accused. This suspension could remain in effect even if the accused wins an acquittal of the criminal case.
- The attorney for the accused always has an opportunity to try to resolve the DUI case short of trial by plea bargaining at pre-trial conferences with the judge. Not every case can be plea-bargained down to a “wet reckless” offense, but there are many advantages for a person facing a DUI to plead to a reduced charge, especially if the prosecution agrees to deferred adjudication.
- If plea bargaining does not resolve the case, then the next step is filing pre-trial motions to suppress. Winning a motion to suppress evidence can force the judge to dismiss the case or, if not, substantially weaken the government’s case.
- If the accused maintains that he or she is not guilty or the state’s attorney is seeking an extremely harsh penalty, then the accused could elect to proceed to trial. At trial, the state’s attorney bears the burden of proving every element of the case beyond a reasonable doubt.
- At the end of a trial, the person is discharged from the case if found not guilty. However, the judge will sentence the person convicted of DUI in accordance with the law. A conviction for DUI carries a variety of potential penalties, including jail, probation, community service, fines, impounding the defendant’s vehicles, or installation of an ignition interlock device. The harshness of the prison sentence depends on the gravity of the case and the defendant’s past criminal record.
Cape Coral DUI attorneys with extensive experience know that getting involved in the case as soon as possible helps their client mount a vigorous defense against DUI charges.
Defenses to DUI Charges in Cape Coral
The best defense for your Cape Coral DUI case will depend on what transpired before the police arrested you. Each case presents unique challenges, and no two Cape Coral DUI cases are alike. However, even in the most challenging cases, some defenses arise, which would win an acquittal for you, dismissal, or convince the state’s attorney to offer you a plea to a reduced charge.
Cape Coral DUI cases may be defended on constitutional, statutory, administrative, and factual grounds. Defending a DUI case successfully hinges on the actions of the law enforcement officer during the initial stop, arrest, booking, and collection of blood or breath evidence.
Law enforcement officers must follow the rules established by the U.S. Supreme Court and the Supreme Court of Florida when encountering a person driving a car or other conveyance. The police cannot pull someone over for no reason. The officer must possess, at the time, the officer tries to pull a person over, reasonable suspicion that the driver (in this instance) is committing, will commit or has just committed a crime. Pulling over a driver without satisfying that standard, as low as it is, violates constitutional rules.
Successfully challenging the car stop, exit order, and detention order could result in a dismissal of the case because of a rule known as the “exclusionary rule.” The exclusionary rule, simply stated, provides that all evidence obtained by police from the start of the unconstitutional action to the end of the encounter must be “excluded” from evidence at trial. The net result is that the state’s attorney would not have much, if any evidence, to prosecute the case if the judge threw out all of the evidence. At that point, the state’s attorney would have no choice but to dismiss the case.
Similarly, police violate the Miranda warning rule with great regularity. Police must give the Miranda warnings when a person is in police custody, meaning they are not free to walk away from the police officer without repercussion, and the police officer asks questions designed to incriminate the suspect. The Miranda warnings need not precede simple booking questions. However, asking a person how much he or she had to drink during booking would violate the Miranda rule.
A violation of the Miranda rule would force a judge to throw out all of the evidence the police gathered or found as a consequence of the violation. For example, all statements made to police by the suspect in violation of the Miranda rule must be suppressed from evidence at trial. Additionally, any evidence found because of the statement given after the Miranda violation that naturally flows from the statement must be suppressed. The case could still continue to trial, but a Miranda violation substantially weakens the government’s case.
If the police committed no constitutional error and the case goes to trial, there are many viable defenses available. A savvy Cape Coral DUI defense attorney will understand how best to attack the weaknesses in the government’s case through the crucible of cross-examination and show that the evidence is not all the government made it out to be.
All tests are subject to attack by the defense in a DUI case. Field sobriety tests have no exact correlation to the skills needed to drive a car. Field sobriety tests, often described as distracted attention tests, help the police prove their case. Field sobriety tests do not exonerate anyone. However, if the police do not use the proper technique to administer the tests, the officer misinterprets the results, or the police officer exaggerates the results of the field sobriety tests, then a skillful Cape Coral defense lawyer will be able to confront that evidence and diminish its significance.
Blood tests and alcohol tests are no different than field sobriety tests. The results of these tests only have evidentiary value if the person administering them performed them correctly and correctly interpreted the results. Without an attorney who knows how to argue against the admissibility of these tests or show how the results cannot be trusted, the accused runs the risk of being convicted for DUI based on unreliable and inaccurate evidence.
Musca Law: Cape Coral DUI Defenders
Call our office at 888-484-5057 any time day or night, seven days a week, to enlist our help if you have been arrested for DUI in Cape Coral.