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.