How This Section Of The Website Works

In this section of the website, I answer many common, and not so common questions that clients have asked me over the years.

There are three ways to find the answers to your question or questions.

One, type your question in the search box that is found down and to the right – then click “Search”. All information related to that question will be presented to you.

Two, just down and to the right, you’ll see a section called “Categories”. Just select the category that applies and all the information related to that subject will be presented.

Three, if you have a criminal matter you’d like answers too, pick up the phone and call me at (850) 362-6655. The call is free.

Criminal Solicitation In Okaloosa County or Walton County

What It Is And The Penalties

The act of soliciting another to commit a crime is an offense prohibited under Florida Statute 777.04(2).

Soliciting is defined as asking in earnest or trying to induce another person to do a specific act.

The requisite elements that the state prosecutor must prove to convict a person of the crime of criminal solicitation are as follows:

  1. The person solicited another to commit a crime prohibited under Florida law.
  2. During the solicitation, the person: commanded, encouraged, requested, or hired another person for the purpose of performing specific conduct that is either a crime or an attempt of a crime under Florida law.

It should also be noted that to prove the crime of criminal solicitation, the person soliciting the crime does not have to do any act in furtherance of the completion of the solicited crime.

The Penalties for Criminal Solicitation

The penalties for criminal solicitation are contingent upon the offense that the defendant solicited another to commit.

  • If the intended offense was a capital felony, solicitation of such a crime is a felony of the first degree punishable by up to thirty years prison or probation and a $15,000 fine.
  • If the intended offense was a life felony or first-degree felony, solicitation is a felony of the second degree punishable by up to fifteen years of prison or probation and a $10,000 fine.
  • If the intended offense was a second-degree felony, unarmed burglary of an unoccupied structure or conveyance, or any crime under Florida Statute 921.0022(c)-(j), solicitation of such offense is a felony of the third-degree punishable by up to five years of prison or probation and a $5,000 fine.
  • If the intended offense was a relatively minor crime listed under Florida Statute 921.0022(a)-(b) or a third-degree felony, then the solicitation of such offense is a first-degree misdemeanor punishable by up to one-year of jail or probation and a $1,000 fine.
  • If the intended offense was a misdemeanor of any degree, the solicitation to commit the misdemeanor offense is a second-degree misdemeanor punishable by up to sixty days in jail and a $500 fine.

Per Florida Statute 777.04(5)(b), a defense exists to the crime of criminal solicitation where the person who originally solicited the crime either persuades the solicited person not to commit the crime or prevents them from committing the solicited crime.

Such behavior must indicate a complete and voluntary renunciation of the person’s original criminal purpose to qualify as a defense.

If you or a family member has been arrested for Criminal Solicitation in Okaloosa County, Walton County or Santa Rosa County, call me at (850) 362-6655 for a free consultation.

Criminal Attempt In Okaloosa County & Walton County

What It Is And The Penalties

The act of attempting to commit a crime is an offense prohibited under Florida Statute 777.04(1).

There are two necessary elements that must be proven by the state prosecutor for a person to be convicted of attempting to commit a crime:

  • The person did some act toward the fulfillment of the crime that went beyond thinking about it or talking about it.
  • The person would have been successful in committing the crime but the crime was either prevented from being completed or ultimately failed.
  • The penalties for attempting to commit a crime vary depending upon the offense that the defendant intended to commit.

    If the intended offense was a capital felony, an attempt of such a crime is a felony of the first degree punishable by up to thirty years prison or probation and a $15,000 fine.

    If the intended offense was a life felony or first-degree felony, an attempt is a felony of the second degree punishable by up to fifteen years of prison or probation and a $10,000 fine.

    If the intended offense was a second-degree felony, unarmed burglary of an unoccupied structure or conveyance, or any crime under Florida Statute 921.0022(c)-(j), an attempt of such offense is a felony of the third-degree punishable by up to five years of prison or probation and a $5,000 fine.

    If the intended offense was a relatively minor crime listed under Florida Statute 921.0022(a)-(b) or a third-degree felony, then the attempt of such offense is a first-degree misdemeanor punishable by up to one-year of jail or probation and a $1,000 fine.

    If the intended offense was a misdemeanor of any degree, the attempt to commit the misdemeanor offense is a second-degree misdemeanor punishable by up to sixty days in jail and a $500 fine.

    Charges for attempted criminal conduct can sometimes be difficult to defend. An experienced criminal defense attorney should do their best to limit the prosecutor’s ability, through filing appropriate motions, to disallow speculation and assumptions to enter into the case.

    Alternatively, your attorney should also discuss with you whether or not it can be argued that you either abandoned the attempt or somehow prevented the intended criminal act from being committed.

    This abandonment or prevention must show that the defendant had completely and voluntarily renounced their original criminal purpose.

    If you or a family member has been arrested for Criminal Attempt in Okaloosa County, Walton County or Santa Rosa County, call me at (850) 362-6655 for a free consultation.

    Recently, we have had success in local DUI cases by challenging the admissibility of breath or blood testing results.

    One way to attack these tests is to first determine if the test was administered involuntarily.

    If so, you may have a legal pathway to getting this evidence suppressed. This is especially common in DUI cases that stem from an automobile accident.

    It is officially called DUI with Property Damage. Single car accidents are generally charged as misdemeanors.

    The legal argument begins by asserting that the Defendant’s blood draw at the scene was involuntary and done so without probable cause.

    Three separate factors may support this conclusion:

    1. The Defendant was not arrested at the scene.
    2. The arrest warrant was not requested by the Officer until the blood testing results were received.
    3. The Officer may concede in the report that probable cause was not determined until after the blood testing results were received.

    Secondly, we assert that not only is probable cause required before law enforcement can justify an involuntary blood draw, it is also necessary that the criminal investigation support a felony charge (with death or serious bodily injury of a human being).

    Additionally, even if law enforcement believed that probable cause existed at the time of the involuntary blood draw, since Defendant is charged with a misdemeanor DUI, law enforcement cannot assert exigent circumstances to justify the involuntary blood draw because the exigent circumstances exception only applies to felonies.

    See State v. Perez, 531 So.2d 961 (Fla. 1988); State v. Schreiber, 835 So.2d 344 (Fla. 4th DCA 2003);
    See also Missouri v. McNeely, 133 S. Ct. 1552 (2013).

    Therefore, pursuant to Article I, Section 12 of the Florida Constitution, the Fourth and Fourteenth Amendments to the U.S. Constitution, and Rule 3.190(h) and (i) of Florida’s Rules of Criminal Procedure, we would ask the Court to suppress any and all tangible evidence, specifically, blood testing results, and any other evidence obtained in this case; obtained from the illegal blood draw.

    Properly utilizing these technical defenses are critical to our success, especially on DUI’s. So when you look to hire a criminal defense attorney to handle your legal matters, make sure that they have the experience and knowledge base to handle every type of criminal law issue.

    If you or a family member has been arrested for drunk driving in Okaloosa County or Walton County, give me a call at (850) 362-6655 for a free evaluation.

    And The Penalties For Each

    In Florida, there are many charges that tend to overlap because the Florida legislature has a tendency to err on the side of allowing law enforcement and prosecutors a lot of discretion on how to charge individuals.

    That is why in many cases, the suspects are charged with duplicative crimes and if the respective state attorney doesn’t see the error, these subsequent prosecutions inevitably violate double jeopardy protections.

    Therefore, it is of vital importance that a criminal defense attorney be keenly aware of these potential issues, should they arise.

    An area where we see a great deal of overlap is in certain classes of misdemeanor offenses. These are:

    • Assault
    • Battery
    • Affray
    • Resisting Arrest
    • Disorderly Conduct (Breach of Peace)
    • Disorderly Intoxication (Public Intoxication)

    These last two, Disorderly Conduct and Disorderly Intoxication are commonly mixed up, but they do have differences:

    Disorderly Intoxication (Public Intoxication)

    Under Florida Statute 856.011, an intoxicated person who causes a public disturbance or endangers another person or another person’s property commits the crime of disorderly intoxication, a second-degree misdemeanor.

    To obtain a conviction, the State must prove the following elements beyond a reasonable doubt:

    The defendant was intoxicated and endangered the safety of another person or their property.

    OR

    The defendant was either intoxicated or drinking publicly and caused a public disturbance.

    A public place is defined as a place where the public has the right to be.

    Intoxication is defined as more than being under the influence of alcohol and must have affected the person to a sufficient degree where the person was deprived of the normal functions of their body and/or mental faculties.

    The penalties for disorderly intoxication may include up to sixty days county jail, six months probation, and a $500 fine.

    Further, per Florida Statute 865.011(3), a person found guilty of violating this statute three times within a twelve-month period may be committed to an appropriate treatment facility for up to sixty days.

    Numerous defenses exist to the charge of disorderly intoxication. A defendant’s admission to consuming alcohol is not sufficient on its own to prove that he or she was intoxication but this fact may be considered along with other evidence.

    Further, the defendant’s actions must extend beyond being annoying or a nuisance while drinking in a public area.

    If the defendant was in a private place where he or she had the right to be that was not open to the general public and did not endanger the safety of anyone else, the charge of disorderly intoxication cannot stand.

    Sometimes Public Intoxication can be charged pursuant to specific county ordinances which may have unique charging elements, but still is considered a misdemeanor offense.

    Disorderly Conduct

    Per Florida Statute 877.03, a person that commits any act or acts that corrupt public morals, outrages the public’s sense of decency, or negatively affect the peace and quiet of those that witness them commits the crime of disorderly conduct, a second-degree misdemeanor.

    A charge of disorderly conduct may also be levied against a person for fighting or engaging in conduct that constitutes a breach of the peace.

    This statute is clearly ambiguous and vague, but considered not considered unconstitutional as applied.

    The net result is that this charge is difficult to defend before a judge or jury because the allegation requires such a minimal standard of conduct in order to rise to a purported “criminal level.”

    However, the statute does require that the defendant’s conduct must extend beyond loud or profane language and a belligerent attitude. So in theory, it should be something more than simply the opposite of “orderly conduct.”

    The penalties for disorderly conduct may include up to sixty days county jail, six months probation and a $500 fine.

    If you or a family member has been arrested for Disorderly Intoxication or Disorderly Conduct in Okaloosa County or Walton County, Florida, give me a call at (850) 362-6655 and I’ll evaluate your issue for free and discuss what may happen to you.

    Constructive Possession Drug Defense In Florida

    Black’s Law Dictionary defines constructive possession as “[c]ontrol or dominion over a property without actual possession or custody of it.”

    If a person is arrested for possession of drugs, they are alleged to have constructively possessed narcotics, a different set of elements must be proven to achieve a conviction than would be required under a theory of actual possession.

    To prove that a defendant constructively possessed narcotics, the state is required to prove that the defendant had “(1) dominion and control over the contraband, and (2) knowledge that the contraband was within his presence.”

    When narcotics are found in a place that is jointly occupied by multiple persons, the state may prove that the defendant constructively possessed the contraband through circumstantial evidence.

    Circumstantial evidence is defined as “evidence based on inference and not on personal knowledge or observation.”

    Even if the state does present circumstantial evidence as to constructive possession, the weight of this circumstantial evidence is subject to being tested in trial through a motion for judgment of acquittal.

    Further, if the trial court fails to grant a motion for judgment of acquittal where the state’s circumstantial evidence is insufficient, the trial court’s ruling is subject to reversal on direct appeal.

    In jury trials where the state relies upon a constructive possession theory, the standard and relied-upon jury instructions specifically define that constructive possession “means the person is aware of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.”

    The forms further state that “mere proximity to a substance is not enough to establish the power and intention to control that substance when the substance is in a place that the person does not control.”

    Raising a reasonable doubt as to any of these elements may provide a successful defense.

     

    Three very common arrests in the Destin, Fort Walton Beach and Okaloosa & Walton County area are:

    1. Contributing to the Delinquency or Dependency of a Minor (Minor Intoxication)
    2. Misrepresenting or Misstating Age or Age of Another to Induce Licensee to Serve Alcoholic Beverages to Person Under 21(Fake ID)
    3. Serving, Selling or Giving Alcoholic Beverages to a Person Under 21

    Most people are familiar with the first two on the list.

    Contributing to the Delinquency of a Minor by supplying alcohol is a very common misdemeanor charge.

    But in the Destin or Fort Walton Beach, Florida area, simply telling a bartender or liquor store cashier an inflated or false age is also a misdemeanor.

    And if a person uses a Fake ID or Driver’s License to purchase alcohol, it can be charged as a felony.

    During the spring break season it is not uncommon for an adult over the age of 21 to be charged with supplying alcohol to a person under the age of 21.

    Many students do not consider the fact that hanging out, having fun with their friends can lead them to being charged with a misdemeanor or worse if they buy or in some way provide alcohol for their friends that are not 21.

    One of the most commonly charged offenses falls under Florida Statutes §562.11. This provision makes it a crime for any adult who knowingly allows an underage person to consume alcohol in his or her presence.

    Anyone that supplies or sells alcohol to someone underage is liable for any injuries or damages caused by them.

    This includes adults that allow underage drinking in their home, as well as bars, restaurants, and stores that allow it on their licensed premises.

    This relates to any “alcoholic beverage” that contains at least one-half of 1 percent or more alcohol by volume.

    What It Takes To Be Convicted Of Contributing to the Delinquency of a Minor, Misrepresenting your Age With A Fake ID, or Serving, Selling or Giving Alcoholic Beverages to a Person Under 21 In Okaloosa County or Walton County

    To prove that an adult knowingly supplied alcohol to an underage person, there are two elements of the crime the state must prove beyond a reasonable doubt:

    1. The defendant, sold, gave or permitted the service of an alcoholic beverage on licensed premises and allowed the minor to consume the alcoholic beverage on the premise.
    2. The person(s) who consumed the alcohol was under the age of 21.

    The Penalties for Contributing to the Delinquency of a Minor, Using A Fake ID, or Serving, Selling or Giving Alcoholic Beverages to a Person Under 21 In Okaloosa County or Walton County

    Violation of Fla. Stat. §562.11(1)(a)(1) is a second-degree misdemeanor and the penalties are a term of imprisonment for up to 60 days and $500 in fines.

    In addition to these penalties, the court can order the Department of Highway Safety and Motor Vehicles to withhold issuance, suspend or revoke the driver’s license or driving privileges.

    Therefore, in order to protect your rights as well as your future, it is important to contact a defense attorney to discuss possible defenses that may apply under the particular facts and circumstances of your case.

    If you’ve been cited in Fort Walton Beach, Destin or elsewhere in Okaloosa County or Walton County, call me at (850) 362-6655 for a free consultation.

    Third DUI In Okaloosa County or Walton County

    A Third DUI Offense, under Florida Statute 316.193(3) and (2)(b)(2) occurs when a person is found driving, or in actual physical control of a vehicle and is under the influence of an alcoholic beverage or some chemical substance, to the point that their normal faculties are impaired; or has a breath or blood alcohol level of .08 or higher and has two prior DUI convictions or comparable out-of-state charge.

    Keep in mind that a Third DUI can also be a felony if the defendant’s Second DUI conviction is less than 10 years old.

    An it is not whether or not all three DUI’s occurred within a span of 10 years, only that the Second one occurred within the last 10 years.

    For example, a defendant may have had a DUI in 1995, then another in 2007, with a current offense in 2015. In that situation the charge could be a felony.

    However, if the second DUI was in 2001, it would not qualify as a felony because of the 14 year gap.

    What It Takes To Be Convicted Of A 3rd DUI In Okaloosa County or Walton County

    The State must prove three elements beyond a reasonable doubt in order to prove a Third DUI Offense.

    They must prove that the accused was driving or in actual physical control of a vehicle while being under the influence of alcohol or chemical substance to the extent, that their normal faculties were impaired, their breath or blood alcohol level was .08 or higher and has two prior DUI convictions in Florida or a comparable out-of-state charge.

    The Penalties For A 3rd DUI In Okaloosa County or Walton County

    A Third DUI Offense is a 3rd degree misdemeanor in Florida. A Third DUI Offense carries standardized penalties that are more severe than the normal penalties for a 3rd degree misdemeanor.

    Enhanced penalties also apply if the offender’s breath or blood alcohol level is .15 or higher and/or if they had a minor in the vehicle with them at the time of the offense.

    If convicted, the standard penalties for a Third DUI are:

    • Up to 12 months incarceration;
    • Up to 12 months of probation;
    • Driver’s license revocation for no less than 6 month but no more than 12 months;
    • Fine of no less than $2,000, but no more than $5,000;
    • Ten day vehicle impoundment;
    • Ignition Interlock Device to be installed in every vehicle owned or operated by the offender for a minimum of two years.
    • 50 hours community service;
    • Twenty-one (21) hour DUI Substance Abuse Course;
    • Undergo a psychosocial examination to see if there is a substance abuse issue, if so, completion of recommended treatment.

    If the offender had a blood or breath alcohol level of .15 or higher and/or had a minor in the vehicle at the time of arrest, the Judge must also impose an enhanced penalty of a minimum $4,000 fine, in addition to the standard penalties for drunk driving.

    Criminal Defense Tactics For A 3rd DUI In Okaloosa County or Walton County

    The prosecution has the sole burden of establishing and proving the defendant’s prior convictions.

    This can sometimes be very difficult if the priors are from outside Florida because the state prosecutor is tasked with locating the state and county jurisdiction, then determining whether there are available records to prove the certified conviction under Florida law.

    This requires certified clerk of court records and the defendant’s fingerprints from when the plea (or conviction) was entered, and whether or not the defendant was represented by an attorney or otherwise validly waived their rights to an attorney.

    It is NOT the defendant’s job to inform the prosecutor or judge that they may have one or more prior Driving under the influence convictions.

    There are many other defenses that can be argued for a Third DUI Offense. Law Enforcement Officers must have one of two reasons for stopping a vehicle.

    The officer has to have reasonable suspicion that a traffic infraction is being committed or have probable cause that the driver committed a crime. If an illegal stop can be proven, any evidence obtained from the stop can be suppressed.

    It can also be argued that Field Sobriety Tests were improperly administered due to the officer’s lack of knowledge of the suspect’s normal balance and coordination (or underlying physical or medical issues), or whether or not the officer was qualified to conduct some of the field sobriety test, such as the HGN (follow pen with eyes) test.

    The HGN or Horizontal Gaze Nystagmus test is only scientifically admissible if it is done by a certified drug and alcohol recognition expert.

    An officer must have probable cause to believe the driver was under the influence of alcohol or chemical substance at the time of driving.

    If it can be proven that the officer did not have probable cause that the driver was under the influence, the arrest can be deemed illegal.

    For example, an officer cannot use the smell of alcohol as a sole reason to make an arrest for driving while intoxicated. There must be more because the smell of alcohol does not necessarily equate to impairment from alcohol.

    In some situations, the breath test results can be inadmissible as well. There are strict guidelines that must be followed in administering the Breathalyzer and if the officer fails to comply by the guidelines in any way, the results can be suppressed.

    If you have been arrested on a Third DUI offense, do not wait until it is too late, there is too much at stake to risk not having the invaluable knowledge of an experienced DUI attorney.

    Call our office today for your free consultation.

    GETTING BLOOD EVIDENCE EXCLUDED IN A DUI CASE

    Recently, we have had success in local DUI cases by challenging the admissibility of breath or blood testing results. One way to attack these tests is to first determine if the test was administered involuntarily.If so, you may have a legal pathway to getting this evidence suppressed.

    This is especially common in DUI cases that stem from an automobile accident. It is officially called DUI with Property Damage.

    Single car accidents are generally charged as misdemeanors. The legal argument begins by asserting that the Defendant’s blood draw at the scene was involuntary and done so without probable cause. Several factors may support this conclusion and may include:

    a. The Defendant was not arrested at the scene.
    b. The arrest warrant was not requested by the Officer until the blood testing results were received.
    c. The Officer may concede in the report that probable cause was not determined until after the blood testing results  were received.

    We then assert that not only is probable cause required before law enforcement can justify an involuntary blood draw, it is also necessary that the criminal investigation support a felony charge (with death or serious bodily injury of a human being).

    Additionally, even if law enforcement believed that probable cause existed at the time of the involuntary blood draw, since Defendant is charged with a misdemeanor DUI, law enforcement cannot assert exigent circumstances to justify the involuntary blood draw because the exigent circumstances exception only applies to felonies. See State v. Perez, 531 So.2d 961 (Fla. 1988); State v. Schreiber, 835 So.2d 344 (Fla. 4th DCA 2003); See also Missouri v. McNeely, 133 S. Ct. 1552 (2013).

    In filing the Motion to Suppress, we also cite to Article I, Section 12 of the Florida Constitution, the Fourth and Fourteenth Amendments to the U.S. Constitution, and Rule 3.190(h) and (i) of Florida’s Rules of Criminal Procedure.

    In the Motion, we specifically ask the Court to suppress any and all tangible evidence, specifically, blood testing results, and any other evidence obtained in the case-obtained from the illegal blood draw.

    Properly utilizing these technical defenses are critical to our success, especially on DUIs. So when you look to hire a criminal defense attorney to handle your legal matters, make sure that they have the experience and knowledge base to handle every type of criminal law issue.

    I have read thousands of police reports on DUI cases and the one thing that I see on every case is the “check the box” approach to DUI investigations used by so many cops.

    The same laundry list of police observations on every DUI case. So this practice must beg the question?

    If they are just checking boxes, do these observations have any evidentiary value?

    Maybe a better question is should they have any evidentiary value to a judge or jury?

    I would propose that every DUI Defense Attorney object to an officer reading from their report in every stage in a proceeding.

    It doesn’t matter if it is at a DMV formal review, motion hearing, sworn deposition, or jury trial.

    The officer must be required to be able to independently recall and articulate the legal basis for the DUI arrest without simply reading from their report that is largely a pre-written template.

    An attorney that is doing their job, forces the officer to remember and testify from their memory without all the assistance.

    This proves too difficult for many officers to do on an individual case because they cannot recall or differentiate their actual observations–apart from the checklist.

    The list of DUI officer observations, itself, amounts to a nearly inexhaustible list of every conceivable, remotely possible reason to think someone might be driving under the influence of alcohol or drugs, but also for reasons that have nothing to do with DUI.

    The DUI List Of Reasons Includes

    • Unusual Actions
    • Sleeping in Vehicle
    • Could Not Locate License and Registration in a Timely Manner
    • Misplaced Paperwork or Documents
    • Nervousness or Laughing
    • Irritable or Argumentative
    • Belligerent or Profane
    • Indifferent or Apologetic
    • Overly Cooperative
    • Crying or Emotional
    • Swaying while Standing
    • Leaning on Vehicle
    • Eyes: Glassy, Bloodshot, Watery, Large Pupils
    • Face: Red, Flushed
    • Speech: Accent, Mumbling, Deliberate, Stuttering
    • Odor of Alcohol
    • Breath: Chewing gum or Attempting to Conceal
    • Appropriateness of Clothing or Attire

    The list, in most cases is admissible through the officer’s testimony.

    The only one that is remotely relevant is odor of alcohol, but even then, odor alone does not give an officer probable cause to arrest an individual for Driving under the influence.

    That is why it is critical for your attorney to be able to dissect this list and point to its shortcomings, flaws, and oversights—especially during the questioning and cross-examination of the investigating officer.

    Second DUI In Okaloosa County or Walton County

    Florida Statute 316.193(1) and (2)(a), identifies a SECOND DUI as an offense being committed when:

    1. A person drives, or is in actual physical control of a vehicle, while being under the influence of alcohol or any controlled substance/chemical, to the extent that their normal faculties are impaired and/or has a breath or blood alcohol level higher than .08, and;
    2. Previously convicted of a DUI or comparable out of state offense.

    What A Good DUI Attorney Will Look At and Challenge

    In order to prove a SECOND DUI Offense, there are key elements the State is required to prove beyond a reasonable doubt. When I meet with a client that is charged with potentially a second DUI, there are certain legal issues your attorney must focus on:

    1. Law enforcement may not be aware of the prior DUI conviction.
    2. The prosecutor may not be aware of the prior Driving Under the Influence conviction, especially if it is from out of state.
    3. Since the penalty for any second or subsequent DUI requires a full—one year “hard no drive” driver’s license suspension, for many clients, that could be catastrophic.
    4. The State prosecution must be able to provide “certified convictions” of the Defendant in order to convict on a second or subsequent DUI. This also requires fingerprint records that were filed with the prior plea agreement and/or judgment and sentence of the court.
    5. Trials involving a second or subsequent DUI must be bifurcated, or separated into two stages. This is critical because the jury deciding the case cannot know about any prior DUI convictions. Proving the certification of prior convictions should always be handled by a separate trial or hearing.

    Penalties For A 2nd DUI in Okaloosa County or Walton County:

    The potential penalties for a SECOND DUI are much greater than that of a FIRST OFFENSE DUI. Fines, Vehicle Impound, Multi-Offender DUI School, Ignition Interlock, and increased jail exposure.

    Although a Second DUI Offense is classified as a second degree misdemeanor, the penalties for a Second DUI are more severe than standard second degree misdemeanors.

    The standard penalties the Judge is required to impose on a Second DUI are as follows:

    • Up to 9 months incarceration;
    • Driver’s License revoked for a minimum of 6-12 months;
    • 10-30 day vehicle impoundment;
    • Ignition Interlock Device placed on all vehicles owned or operated by the offender for a minimum of 1 year;
    • 50 hours of community service;
    • Complete a 21-hour Multi-Offender DUI Substance Abuse Course.
    • Undergo an evaluation to determine if Substance Abuse treatment is needed, if so complete recommended treatment.

    In addition to Second DUI Penalties, enhanced penalties are required to be imposed if the person had a breath or blood alcohol level of .15 or higher or had a minor with them at the time of the offense.

    Enhanced penalties are:

    • Up to 12 months incarceration
    • A fine of no less than $2,000 and no more than $4,000
    • Ignition Interlock Devices must be installed on all vehicles owned or operated by the Defendant.

    How To Beat A Second DUI In Okaloosa County or Walton County With Solid Defensive Strategies

    There are defenses that can be argued for a Second DUI Offense. Law Enforcement Officers must have one of two reasons for stopping a vehicle. The officer has to have reasonable suspicion that a traffic infraction is being committed or have probable cause that the driver committed a crime.

    If an illegal DUI stop can be proven, any evidence obtained from the stop can be suppressed. It can also be argued that Field Sobriety Tests were improperly administered due to the officer’s lack of knowledge of the suspect’s normal balance and coordination or if they are even qualified to conduct some of the test such as the HGN (follow pen with eyes) test.

    The HGN test is only reliable if it is done by a certified alcohol recognition expert.

    An officer must have probable cause to believe the driver was under the influence of alcohol or chemical substance at the time of the stop.

    If it can be proven that the officer did not have probable cause or had an unreasonable conclusion that the driver was under the influence, the arrest can be deemed illegal and any evidence can be suppressed. For example, an officer cannot use the smell of alcohol as a sole reason to make an arrest.

    If the video shows that the driver performed Field Sobriety Tests satisfactorily as opposed to what was in the officer’s written report, the officer’s conclusion of impairment may be deemed unreasonable by the Judge.

    In some situations, the breath test results can be inadmissible as well. There are very strict guidelines that must be followed in administering the Breathalyzer and if the officer fails to comply by the guidelines in any way, the results can be suppressed.

    If you are facing charges on a Second DUI offense, it is imperative that you seek the assistance of a quality DUI Defense Attorney, one that not only knows the DUI laws, but one that can maximize your chances of having a positive result.

    If you need help in Okaloosa County or Walton County after a second arrest for drunk driving, give me a call at (850) 362-6655 for a free evaluation.