2nd, 3rd, 4th DUI: Multiple Offenders

When the representative of the Tampa Alcohol Coalition advocated for tougher DUI laws and "problems" in prosecuting repeat offenders, she is quoted as saying "Part of what happens is you have a really good defense." With the prospect of even tougher DUI laws, her statement about the importance of an attorney shows how crucial it is to have good representation on your side like Craig Epifanio, P.A. While their goal is noble since 1 out of 4 DUI arrests are for repeat offenders, I have the experience to show the prosecution weaknesses in their case, and put on that "really good defense."

If you have been convicted of a DUI in the past, then you face enhanced penalties, including a much greater likelihood of jail. Depending on the timing between DUIs, the jail (or in some cases prison) is mandatory. The penalties in a DUI case depend, not only on when the prior offense occurred, but sometimes where it occurred. Different penalties can occur for those that get charged with a second or any subsequent DUI, and the most common scenarios and serious consequences that go with those charges include:

  • 2nd DUI conviction outside of five years; 9 months jail maximum and one year suspension with NO hardship
  • 2nd DUI conviction within five years; 10 day mandatory minimum jail and a 5-year license suspension;
  • 3rd DUI conviction more than ten years since last prior; one year jail maximum and one year license suspension with NO hardship;
  • 3rd DUI conviction within 10 years of the last prior; 30 days jail mandatory minimum and a 10-year license suspension;
  • 4th DUI conviction; 30 days jail mandatory minimum and up to 5 years prison, and a permanent license revocation.

Because Craig Epifanio has extensive experience and has had success in minimizing or even eliminating the serious consequences of a multiple offense DUI, it is important to call the attorney as soon as possible after an arrest.

Does my prior DUI conviction “count” as a prior under Florida law?

Florida Statute Section 316.193(6)(k) provides:

For the purpose of this section, any conviction for a violation of s. 327.35 a previous conviction for the violation of former s. 316.1931, former s. 860.01, or former s. 316.028; or a previous conviction outside this state for driving under the influence (DUI), driving while intoxicated (DWI), driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level (DUBAL), or any other similar alcohol-related or drug related traffic offense, is also considered a previous conviction for violation of this section.

A Prosecutor must make an initial showing that the Prior DUI exists. They can usually do this with certified copies of DHSMV driving records, which creates a rebuttable presumption that it exists. Florida Statute Section 316.193(12) provides:

[If] the records of the Department of Highway Safety and Motor Vehicles [the Florida DHSMV] show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence [DUI]. However, such evidence may be contradicted or rebutted by other evidence presented in deciding whether the defendant has been previously convicted of the offense of driving under the influence.

Do not think that an out-of-state DUI, aka Driving Under the Influence of Alcohol or Drugs, OUI, aka Operating a Vehicle Under the Influence of Alcohol or Drugs, or DWI, aka driving while intoxicated, or DUBAL, aka driving with an unlawful breath-alcohol level, can not be used as prior convictions for enhancement purposes. Even a prior boating under the influence (BUI) conviction will count as a prior for purposes of enhancing the jail and fines but NOT for purposes of enhancing a driver’s license suspension. See Florida Statute Section 316.193(6)(k); 316.193(6)(b) and (c).

Courts in Florida have specifically addressed certain states, but even if they haven’t, one can assume that a prior will count for enhancement purposes. For example, Colorado’s DWAI law and New York’s DWAI law have been found to count as a prior conviction, although there may be still be grounds to exclude those and other specific states’ prior convictions. One should definitely assume that it will not only count but will also be found. Even if a conviction does not show up on your Florida Driving Record does not mean that the prosecutor is unaware of that prior conviction. Prosecutors routinely order other state’s individual’s driving records, particularly when records show a person has moved from another state. Further, national databases, such as NCIC, can reveal prior convictions and even arrests that may not be part of the “public” record. Having an out-of-state prior also poses problems for prosecutors. Since all of us are not required to be witnesses against ourselves and have an absolute right to remain silent, it is up to the prosecutor to prove its existence. This usually means obtaining certified copies from that state and sometimes those copies have been destroyed, making it difficult to prove that prior.

One should also be aware that if they think they can just plea early and the prosecutors won’t find out, you still could face repercussions, which is another very important reason you need an attorney to protect your interests early on. Often times, the prosecutor can not find or can not prove a prior conviction, HOWEVER, that does not mean the DHSMV is not aware of it. The DHSMV will often “count” a prior conviction even if a prosecutor offers you a "good" deal to a first time offense. That means, for example, if you picked up a third DUI and the last one was within 10 years, you could still face a 10-year suspension of your license, despite being offered a plea deal by the prosecutor to a first time offense. Of course, if it’s a fourth DUI, then you could permanently lose your full driving privileges.

Getting highly qualified legal help is especially crucial for multiple offenders. Craig Epifanio is a criminal defense attorney who focuses on DUI cases in all of the Tampa Bay, FL area. Call our office so that we can set up a free consultation so we can start helping you as soon as possible.