DUI Laws in Florida

Summary of Florida DUI Laws

Florida DUI laws were created to make the roads safer by deterring drunk and impaired driving.

The legal limit in Florida is .08. This means that under the per se version of DUI in Florida, a person could be convicted of DUI with a breath or blood-alcohol concentration (BAC) of .08 or more grams of alcohol per 210 liters of breath or 100 milliliters of blood, regardless of impairment.

Even without evidence of the BAC being over .08, a person could be convicted of DUI if the person’s normal faculties were impaired by alcoholic beverages, chemical substances, controlled substances, or a combination. Those cases usually involve a refusal to submit to a chemical test of the breath, blood, or urine.

Since 2006, the only breath test machine approved for evidentiary use in Florida is the Intoxilyzer 8000. Although most DUI cases in Florida involve a breath test, a urine or blood test might be requested under certain circumstances.

Prohibited Vehicular Activity:

The prohibited vehicular activities in Florida for DUI include driving or being in actual physical control of a vehicle while:

• under the influence of alcoholic beverages, a chemical substance, or a controlled substance to the extent normal faculties were impaired; or
• with a breath or blood-alcohol concentration (BAC) of .08 or more grams of alcohol per 210 liters of breath or 100 milliliters of blood.

The standard jury instructions in Florida define “normal faculties” and “impaired” as follows:

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Impaired means diminished in some material respect.

Actual physical control of a vehicle means the defendant must be physically in the vehicle (or physically on a vehicle such as a motorcycle) and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time. See Section 322.01(2), Fla. Stat.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

Controlled substances under Florida law are listed in Ch. 893, Fla. Stat.

Chemical substances under Florida law are listed in § 877.111(1), Fla. Stat.7

Vehicles or Devices:

In Florida, DUI prosecutions involve driving or being in actual control of a “vehicle” defined as:

“every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks. § 316.1934(1), Fla. Stat.”

For purposes of a DUI prosecution, a “vehicle” might include three-wheelers, golf carts, segways, dune buggies, go-karts, riding lawnmowers, tractors, mopeds, and scooters when operated on the roadway. Despite the broad definition of vehicles for a DUI prosecution, an administrative suspension of the driver’s license applies only to “motor vehicles.”

Florida has a separate statutory scheme for operating “a vessel within this State" while under the influence of drugs or alcohol (also known as “Boating Under the Influence” or “BUI”).

In Florida’s BUI cases, the term “vessel” is defined as “a boat and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.” Section 327.02, F.S.

Covered Locations:

Section 316.193, criminalized driving or being in actual physical control of a vehicle “within this state.” For this reason, the covered locations for a DUI are construed broadly to include all lands within the state, including privately owned parking lots and thoroughfares.

Section 316.640, Florida Statutes, defines the coverage areas more narrowly for counties and municipalities enforcing state traffic laws. See Section 316.640(2)(a), F.S. (limited to “all the streets and highways thereof and elsewhere throughout the county wherever the public has the right to travel by motor vehicle” and “on any private or limited access road or roads over which the county has jurisdiction pursuant to a written agreement….”). See also Section 316.640(3)(a), F.S. (limited to ”all the streets and highways thereof and elsewhere throughout the municipality wherever the public has the right to travel by motor vehicle” and “on any private or limited access road or roads over which the municipality has jurisdiction pursuant to a written agreement….”).

Types of Driving Under the Influence Offenses:

Prosecutors have at least eleven (11) different ways to charge any DUI-related crime. The way the DUI is charged depends on the number and timing of prior convictions, including:

1. First DUI;
2. Second DUI outside of 5 years of any prior conviction;
3. Second DUI within 5 years of any prior conviction;
4. Third DUI outside of 10 years of any prior conviction;
5. Third DUI within 10 years of any prior conviction; and
6. Fourth or subsequent lifetime DUI.

Florida law provides that prior BUI or out-of-state DUI/DWI convictions might count as prior convictions. See §316.193(6)(k), Fla. Stat. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

The way the crime is charged and the enhanced penalties that might apply also depend on whether certain additional elements can be proven, including:

• DUI with a BAC over .15 - § 316.193(4), Fla. Stat;
• DUI with a minor child passenger in the vehicle - § 316.193(4), Fla. Stat;
• DUI with property damage or non-serious bodily injury- § 316.19 3(3)(a)(b)(c)1, Fla. Stat.;
• DUI with serious bodily injury - § 316.193(3)(a)(b)(c)2, Fla. Stat.; or
• DUI Manslaughter - § 316.193(3(a)(b)(c)(3), Fla. Stat.

Other Criminal Offenses Involving Driving Under the Influence Offenses:

Other criminal offenses involving driving under the influence (DUI) might include:

• Reckless Driving - § 316.192(1)(a) and (1)(b), Fla. Stat.
• Racing on a Highway, Street Takeovers, Stunt Driving - § 316.191(3)(a), Fla. Stat.
• Fleeing to Elude a Law Enforcement Officer § 316.1935, Fla. Stat.
• Leaving The Scene of a Crash
• Involving Damage to an Unattended Vehicle or Unattended Property - § 316.063(1), Fla. Stat.
• Involving Only Damage to an Attended Vehicle or Attended Property - § 316.061(1), Fla. Stat.
• Involving Death, Serious Bodily Injury or Injury - § 316.027(2), Fla. Stat.

Degree of Impairment Required:

The degree of impairment required to prove DUI requires proof beyond all reasonable doubt of one of the following:

• a breath or blood-alcohol concentration (BAC) of .08 or more grams of alcohol per 210 liters of breath or 100 milliliters of blood, regardless of impairment; or
• Impairment of the normal faculties from alcoholic beverages or a chemical or controlled substance.

Penalties for Driving Under the Influence Offenses:

The penalties and punishments the court can impose for a DUI depend on the way the crime is charged. For example, a first DUI offense with no aggravating factors is charged under § 316.193(1), Fla. Stat. For this type of first DUI offense, the Court can impose up to twelve (12) month’s probation to complete the following special conditions:

• a fine of $500 to $1,000 plus court costs;
• a driver’s license revocation for at least six (6) or up to twelve (12) months;
• DUI school with a substance abuse evaluation and the completion of any recommended follow-up treatment;
• fifty (50) hours of community service;
• an ignition interlock device for up to six continuous months (although not required for a first offense); and
• a ten (10) day vehicle immobilization.

Although the court is not required to impose jail time on a first DUI, it is permitted to impose up to six months in jail.

For a first DUI, if the BAC was .15 or higher, or if there was a minor child passenger in the vehicle, the court must impose the following minimum mandatory penalties at sentencing:

• A fine of not less than $1,000 or more than $2,000;
• A requirement to install an ignition interlock device for six (6) months; and
• Although no jail is required, the statutory maximum jail time is nine (9) months in jail.

For a second DUI conviction outside of five years, the statutory maximum jail time that can be imposed by the court is up to nine (9) months in jail, although no jail time is required. The penalties are the same as those imposed for a first DUI, except the court must impose a fine of $1,000 to $2,000 and a one (1) year ignition interlock device.

For a second DUI conviction within five years of any prior DUI conviction, the statutory maximum jail time that can be imposed by the court is up to nine (9) months in jail with a minimum of ten (10) days in jail. The other penalties include the following:

• a fine of $1,000 to $2,000;
• DUI School plus any required follow up treatment;
• 1-year ignition interlock device;
• 5 years driver’s license revocation; and
• vehicle immobilization for thirty (30) days. Fla. Stat.

For a second DUI conviction within five years of any prior DUI conviction, if the BAC was .15 or higher, or if a minor child passenger was in the vehicle, the fine is not less than $2,000 or more than $4,000, and the ignition interlock requirement is two (2) years.

For a third DUI within 10 years from any prior DUI conviction, the crime can be charged as a third degree felony with a statutory maximum penalty of up to five years in Florida State Prison. Additionally, the court must impose not less than thirty (30) days in jail and up to five (5) years in prison; a fine of no more than $5,000; a 10-year driver’s license revocation; DUI School; a minimum two (2) year ignition interlock device; and vehicle immobilization for ninety (90) days. Fla. Stat. § 316.193(2)(a)(1)(b). If the BAC was .15 or higher, or if there was a minor child passenger in the vehicle, the fine is not less than $4,000.

For a fourth DUI with three or more prior DUI convictions, the crime can be charged as a third degree felony. The court must impose not less than thirty (30) days in jail and up to five years in prison; a fine of $1,000 to $5,000; permanent driver’s license revocation; DUI School; minimum 2-year ignition interlock device; vehicle immobilization for ninety (90) days. Fla. Stat. § 316.193(2)(a)(1)(b)(3). If the12 BAC was .15 or higher, or if there was a minor child passenger in the vehicle, the fine is not less than $4,000.

For a DUI with Serious Bodily Injury, the crime is charged as a third degree felony with up to five (5) years in prison and a $5,000 fine. Fla. Stat. § 316.193(3).

For a DUI Manslaughter, the crime is charged as a second degree felony with a minimum mandatory of four (4) years in prison and a statutory maximum of fifteen (15) years in prison, fines not to exceed $10,000, and a mandatory permanent license revocation. Fla. Stat. § 316.193(3).

For a DUI Manslaughter involving Leaving the Scene of the Crash, the crime is charged as a first degree felony punishable by a fine of not more than $10,000 and up to 30 years in Florida State Prison.

Statutory Drunk Driving Presumptions:

The standard jury instructions also provide “presumptions of impairment,” which are explained as follows:

1. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Implied Consent Laws:

In Florida, the chemical tests permitted after a DUI arrest include one or more samples of breath, urine, or blood as directed by law enforcement under Fla. Stat. § 316.1932(1)(a); Fla. Stat. § 316.1932(1)(b); Fla. Stat. § 316.1932(2).

Effective October 1, 2021, the Florida Legislature amended the implied consent statute to add a warning that the individual would be subject to increased penalties if they had previously been fined under section 327.35215(1) Florida Statutes, which deals with the penalties for failing to submit to a test after being suspected of boating under the influence (BUI).

After a DUI arrest, a law enforcement officer might read the following implied consent warning:

“If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one year for a first refusal, or a period of 18 months if your privilege has been previously suspended, or if you have previously been fined under §327.35215, F.S., as a result of a refusal to submit to a lawful test of the breath, urine or blood, required under Chapters 316 or 327, F.S.

Additionally, if you refuse to submit to the breath or urine test I have requested of you and if your driving privilege has been previously suspended, or you were previously been fined under §327.35215, F.S., for a prior refusal to submit to a lawful test of your breath, urine or blood, required under Chapters 316 or 327, F.S., you will be committing a first degree misdemeanor, in addition to any other penalties provided by law.”

Admissibility of refusal:

The fact that the driver refused to submit to testing is generally admissible at trial to prove “consciousness of guilt” if the officer read the implied consent warning.

The refusal to submit to the breath, blood, or urine test might trigger more serious consequences for the immediate administrative suspension. For instance, the failure to submit to a lawful breath test results in an administrative suspension of the person’s driving privilege for one year for a first refusal or 18 months for a subsequent refusal. Section 322.2616(2)(b)1.a., F.S.

Furthermore, if the driver previously refused to submit to testing of the breath, blood, or urine, then a second or subsequent refusal can be charged as a separate offense under § 316.1939, Fla. Stat. The second or subsequent refusal is a first degree felony punishable by up to 12 months in jail or probation and a $1,000 fine.

Chemical Test Laws:

Pursuant to Florida Statute Section 316.1932(1)(a)1.a.,” …[t]he chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.”

"The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions…The program is responsible for the regulation of the individuals who operate, inspect, and instruct on the breath test instruments utilized in the driving and boating under the influence provisions….The program is further responsible for the regulation of blood analysts who conduct blood testing to be utilized under the driving and boating under the influence provisions….Fla. Stat. § 316.1932(1)(a)(2).

Pursuant to Florida Statute Section 316.1932(1)(b), “...[t]he urine test must be incidental to a lawful arrest and administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of a motor vehicle within this state while under the influence of chemical substances or controlled substances.“

Blood-Drawing Statute:

When a person submits to a blood test, only a physician or registered nurse (or other qualified person) may withdraw blood for the purpose of determining the alcohol content. Fla. Stat. § 316.1933(1)(c).Blood may be tested only in two circumstances:

1. Section 316.1932(1)(c) provides that a person who is lawfully arrested for DUI is "deemed to have consented" to the withdrawal of a blood sample "if such person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible;" and
2. Section 316.1933(1) provides that a law enforcement officer is authorized to demand a blood withdrawal from any person who is lawfully arrested for DUI if there is probable cause to believe that the person "has caused the death or serious bodily injury of a human being."

Additionally, officers needs a search warrant to take a blood sample unless the officer has either free and voluntary consent or exigent circumstances. In all other circumstances, police are restricted to a request for breath or urine samples.

Independent Test Statute:

The person testing may, at his expense, have a physician, or a qualified technician, registered nurse or other qualified person of his own choosing administer a blood draw in addition to any administered at the discretion of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. Fla. Stat. § 316.1933(1)(f)(3).

Length of a Suspension or Revocation:

In Florida, a DUI arrest might lead to an immediate administrative suspension for six (6) months, twelve (12) months, or eighteen (18) months, depending on the number and timing of prior administrative suspensions and whether they involve a refusal to submit to chemical testing.

Additionally, a DUI conviction triggers a court-ordered revocation for at least six (6) months. Depending on the number of prior convictions, the timing of those convictions, and the way the DUI is charged, the maximum court-ordered revocation period might be for twelve (12) months, five (5) years, ten (10) years, or a permanent revocation.

Administrative Review:

The driver has only ten (10) days after receiving notice of the administrative suspension to request a formal or informal review hearing at the Florida Department of Highway Safety and Motor Vehicles (DHSMV) Bureau of Administrative Reviews (BAR) office.

Requesting the formal or informal review hearing is the only way to contest the administrative suspension. Otherwise, a notation of the administrative suspension will remain on the driving record for 75 years.

By requesting the formal or informal review hearing, the driver might be granted a 42-day permit to continue driving for hardship purposes while they await the hearing. Fla. Stat. § 322.2615(6)(a) & (b).

For a first DUI arrest, the driver might decide to forgo challenging the suspension during a formal or informal review hearing and instead seek an immediate hardship license in a “waiver review hearing.”

Periods of Suspensions:

After a DUI arrest, the Florida driver’s license or driving privileges will be administratively suspended if the driver took the breath test and blew over the legal limit or if refused to take the chemical test of the breath, blood, or urine.

The “hard suspension” refers to the time period during which the person is not able to obtain a “business purpose only” or restricted driver's license. In other words, during the hard suspension, the person is not allowed to drive for any reason.

First Offense –

• If you took the breath or blood test, there is a six (6) month suspension with a thirty (30) day hard suspension.
• If you refused, there is a twelve (12) month suspension with a ninety (90) day hard suspension.
• For a DUI arrest that occurs after July 1, 2013, with no priors (meaning no prior DUI convictions or administrative suspensions), you can request a “waiver review hearing” to stipulate to the administrative suspension in exchange for immediate reinstatement of hardship privileges to avoid the thirty (30) or ninety (90) day hard suspension.

Second Offense –

• If you took the breath or blood test, there is a twelve (12) month suspension with a thirty (30) day hard suspension.
• If you refused and your first offense was after a breath or blood test, there is a twelve (12) month suspension with a ninety (90) day hard suspension.
• If you refused, and your first offense was after a refusal, there is an eighteen (18) month suspension with an eighteen (18) month hard suspension.

Third or Subsequent Offense

• If you took the breath or blood test, there is a twelve (12) month suspension with a twelve (12) month hard suspension.
• If you refused and all prior offenses were after a breath or blood test, there is a twelve (12) month suspension with a twelve (12) month hard suspension.
• If you refused and one of the prior offenses was after a refusal, there is an eighteen (18) month suspension with an eighteen (18) month hard suspension.

Court Ordered Revocation:

Florida law sets the minimum and maximum period of the court-ordered revocation after a DUI conviction as follows:

• First Conviction: 180 days to 1 year - Fla. Stat. § 322.28(2)(a)(1);
• Second conviction within 5 years of prior conviction: not less than 5 years - Fla. Stat. § 322.28(2)(a)(2);
• Third conviction within 10 years of prior conviction: not less than 10 years - Fla. Stat. § 322.28(2)(a)(3);
• Fourth Conviction in a lifetime: permanent revocation Fla. Stat. § 322.26(1)(a)

Additional Resources:

DUI Defense Attorneys in Florida - Find a list of DUI defense attorneys in Florida who are members of NCDD. The NCDD member directory includes a picture of the attorney, their contact information, a link to their website, and more.

Sources:

Florida DUI and Administrative Suspension Laws - Visit the Florida Department of Highway Safety and Motor Vehicles (FLHSMV) website to find a summary of Florida’s DUI laws and administrative rules, including the statutory minimum and maximum punishments imposed by the court after a DUI conviction. Find information on disqualifications for persons who are licensed to operate a Commercial Motor Vehicle (CMV) and hold a Commercial Driver License (CDL). Read about the requirements to reinstate the driver's license after an administrative suspension or court-ordered revocation.

Florida Driver License Check - Visit the FLHSMV’s MyDMV Portal to check your driver’s license. Enter your driver’s license number to see if the license is suspended, revoked, canceled, or disqualified.

Florida Statute Section 316.193 - Visit the website of the Florida Senate to find the full text of Florida’s DUI statute in Section 316.193, which lists the penalties and punishments that must be imposed after a conviction.

Disclaimer:

This summary of Florida DUI laws was prepared for NCDD. It should be used for reference only. For more complete information, read the full text of the applicable statutes and administrative rules or the case law interpreting them.