What to Expect from a First DUI

Hopefully you are reading this before you have been arrested for DUI. My advice to you as a lawyer and fellow citizen is this: DO NOT DRINK AND DRIVE. Not even one beer. True, it is only illegal if you drive while your normal faculties are impaired, or your blood alcohol level is over .08. One beer or drink may or may not cause your normal faculties to be impaired or put you over the .08 limit. But why risk it? A few beers are not worth all the emotional and financial distress you will face. Believe me. And it’s not just because a DUI is very expensive, your license will be suspended (yes you may be eligible for a “business purpose only” license, but it is for very limited purposes), and your insurance rates will most certainly increase. In those tragic cases when accidents happen because of drunk driving, the human cost is much worse. If you’ve ever been to a victim impact panel (you may be ordered to attend one if you are convicted) you will know what I’m talking about.

That said, we are human and make mistakes, especially when our judgment is impaired by alcohol or other substances, whether legal or not. If you do get stopped for a DUI, you will face tough decisions regarding whether to submit to field sobriety exercises, whether to submit to a breath test, and whether to answer questions posed to you by the law enforcement officer. There are no truly hard and fast rules despite what you read on the internet and hear from friends. The only thing I can say is, when you accepted your license, you agreed to consent to take “any sobriety test required by law.” What does that mean? Field sobriety tests are NOT a sobriety test required by law. So don’t do them. You will not perform well on them anyway even if you are sober as a judge. Your performance on the FSEs is in large measure how cops develop probable cause to arrest you. The cops will first try to check your eyes for horizontal and vertical gaze nystagmus. This is an FSE so don’t let them “check your eyes really quick.” The breath test is required by law, but you do have the right to refuse to take the test. If it’s your first DUI or haven’t previously refused a test there are good reasons to refuse to take the breath test. Moreover, you have a constitutional right not to make a statement to law enforcement. You may have to answer some simple biographical questions, but the more you talk the more evidence of your “slurred speech” the cops can get. So, keep your talking to a minimum. Don’t get chatty with the cops because you believe them to be friendly and helpful. They are not your friends. Above all, don’t admit you drank any alcohol but DON’T LIE to the cop. Just refuse to answer the question.

I must emphasize this though: If you are stopped, be polite. If you refuse to speak or perform the FSEs or take the breathalyzer, that is fine. But don’t be a jerk. This may sound strange from a criminal defense attorney, but I truly believe most local law enforcement officers in this area are professional, well-meaning, and thoughtful. If you treat them with respect, I can virtually guarantee they will treat you with respect. Besides, most deputies and local officers have video and audio capabilities, including microphones attached to their uniforms. These are the ubiquitous body cams we see on TV every day. Whatever you say to them or how you act will be recorded. And don’t mouth off when you if you end up in the back of the cruiser. Yes, there are rear facing cameras and audio recording equipment in most cruisers. The cops may also put your buddy in the back of the cruiser with you. The ONLY reason they do this is to get you talking to your friend and make admissions. Just shut up and tell the friend to do the same.

Ultimately, you will likely be arrested. Your car may be left at the scene, if it’s safe to do so, or the cops will release your car to another person. Most likely, though, your vehicle will be impounded and searched. And they very thoroughly search the vehicle. They will find your stash of illegal weed, so add another crime to the list. If you have been arrested, you will be asked to submit to a breath test or give a urine sample depending upon what the officer believes is impairing your normal faculties. The officer or another authorized person will observe you for 20 minutes and then request a sample. Again, I cannot tell you what to do. It all depends on the circumstances and whether you have any prior refusals to taking the breath test. But continue to be courteous and keep the talking to a minimum. You are likely being videotaped.

Once the officer has completed the breathalyzer paperwork whether you refused or not, he or she will take you to jail. Again, don’t get lippy with the officer. You will be filmed. Once at the jail, you will be dealing with a new set of deputies. These deputies are stuck in the jail all night and are not likely in the best of moods. Again, be polite and cooperative. You will be searched, for perhaps the third or fourth time, and given whatever attire the deputies deem necessary. For example, if you are wearing steel-toe boots, you will be given flip-flops. Sometimes you can keep your street clothes, but you may get the familiar orange jail scrubs. They are very comfortable and fit perfectly. Your phone, shoes, belts, jewelry, wallets, and other items will be stored for you and (hopefully) given back to you when you get released (unless it’s evidence). You will be fingerprinted and photographed and your tattoos will be documented.

Since typically nobody knows anybody else’s phone numbers these days, the detention deputies will allow you to retrieve phone numbers from your cell phone to make phone calls. You can only make a collect call, and the other person must accept it. So, call someone who actually likes you. And then you will wait. And wait. And wait some more. You cannot be released until at least eight hours after your arrest, or your breath alcohol is below .05. Although you may be given a bond or released on personal recognizance (called ROR’d), you still must wait the eight hours or the time it takes for your BAC to get below .05. You will be sitting in uncomfortable chairs or on metal benches, which get increasingly uncomfortable as the night slowly drags on (especially if you start feeling the effects of a hangover). By the way, if you need to use the restroom, there is zero privacy. The deputies will be watching you and incessantly telling you to hurry up. How can you speed that bodily function up? But I digress. Depending on the time, you may be offered something to eat. Do so at your own risk.

If you do not get bond set by the deputies or ROR’d, you will have to see a judge for what’s called “first appearance” or sometimes “advisories.” At this point, the judge will determine the conditions of your release (money bond, continuous alcohol monitor, supervised ROR, etc.) and then you will be brought back down to the holding area. And you will wait. And wait. And wait some more. If you are given a bond, there are TV monitors in the holding area that have a list of bail bondsman and their phone numbers. If you can afford it, you can also pay for your bond with cash or a credit card. If you have questions, the deputies in the holding area are for the most part courteous and professional. Most are happy to answer reasonable questions about the process, but they will obviously not give legal advice. But if you’ve been a jerk, don’t expect a lot of help and you will be subject to mockery, insults, and sarcasm. The deputies can be quite entertaining.

Once your eight hours are up, you are eligible for release. This is not to say you will be released exactly eight hours after your arrest, but you are eligible. Bugging the deputies to release you exactly eight hours after the arrest will likely be counterproductive. Just be patient. Once you finally get told you can go, you will be taken to the property room and given back your stuff (unless it’s evidence or contraband). You will be given a copy of the arrest report and a uniform traffic citation, called a UTC, for your DUI. DO NOT LOSE THESE. You will need them for DUI school and for getting a “business purpose only” license if you qualify. You will then be unceremoniously led to the door and shoved out into the sunshine. Hopefully, the friend you called will be there to pick you up. Otherwise, you will get your cell phone back at this point and you can start trying to call people to come get you. But given the luck you’ve had so far, your phone battery will probably be dead. Good luck with getting a ride.

The next step is critical. Call a lawyer. Don’t dawdle. You have a limited time to do certain things. Your UTC will serve as a ten-day temporary driving permit. Within this ten-day period, you have to make certain decisions. If this is your first DUI, you can immediately ask for a hearing to determine your eligibility for the business purpose only license. You will need the original UTC to apply. In Pinellas, you will also have to enroll in DUI school through the Suncoast Safety Council or another approved school. Other counties have DUI schools that can be found by googling DUI schools for that county. Typically, you can pre-register for the school on-line, pay the ridiculous fee, and someone will call you to schedule your evaluation and the school. They are typically very helpful and courteous. Be the same.

After the call, someone will email you paperwork that shows you are enrolled in DUI school. You take that paperwork and the UTC and email them to the Bureau of Administrative Reviews with a request for eligibility review. The office that you need to email this stuff to is on the UTC. The email address for the BAR in your area is online. You will also have to pay a $25 fee. You will then receive a call to talk to a hearing officer and he or she will determine your eligibility for a BPO license. If you are eligible, you can then go down to the DMV and get your BPO license. Another $200.00 or so. Yikes! Starting to get expensive. This license is, according to statute, only for “driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.” What does this mean exactly? It’s not really clear and law enforcement has broad discretion to determine if you are on a “business purpose.” So don’t be tooling around with your buddies. You will be caught and arrested and that will just pile on more problems and expenses—and perhaps another stint in jail. The BPO will be for six months if you took the breath test or one year if you refused.

Next comes the court proceedings. You will be scheduled to appear before a judge for arraignment. The officer will write on the UTC that you need to appear at the “call of the court.” That means you will get a notice in the mail of your court date. It’s not a good idea to miss that court date. Another day in jail is likely coming your way if you do. If you hire a lawyer, he or she can file a plea of not guilty and waive the arraignment, so you don’t have to go. If you got a companion civil citation (e.g., driving without headlights, speeding, failure to maintain a lane, etc.), the two cases will be consolidated and typically get resolved together. A lawyer can help you understand the process.

In Florida we can participate in what’s called “discovery,” a process where the state basically gives you the evidence it has against you. You can get the police reports and, hopefully, the video of the traffic stop and your (typically poor) performance on the FSEs if you foolishly agreed to perform them. Another video will also likely have you in the back of the cruiser slinging profanities at the officer if you failed to heed my advice above. Anyway, if you have a lawyer, he or she will look through the discovery and try to determine if there are any reasons for filing motions to dismiss or suppress or other similar pre-trial motions. If it’s a close call (or even if it’s not) your lawyer can ask for an “RD Review.” This is when the prosecutor will review the evidence and determine if an amendment for reckless driving can be made. This would be a much better than a DUI conviction. A DUI conviction results in an automatic adjudication of guilty, whereas you may be able to get a withhold of adjudication if you plead to a reckless driving charge. The fines, costs, and penalties are a little less as well.

In Pinellas County, you may also be eligible to participate in a pre-trial diversion program for certain DUIs. This information can be found at https://www.flsa6.gov/drop-program/. Other counties may have similar programs. Hillsborough has a diversion program similar to DROP called the RIDR program. Information on that program can be found here: https://www.sao13th.com/wp-content/uploads/2018/08/RIDR-Info-Sheet_WideDistro_PDF-Final.pdf

If you can’t get your case dismissed or reduced to RD, you will either have to plead or go to trial. By the way, when you go to court, dress appropriately. No tank tops, droopy pants, hats, profanity-laden t-shirts, or other improper attire. You might as well leave your baseball hat at home, because the deputies will make you take it off anyway. And for goodness’ sake, DO NOT CHEW GUM, especially in front of the judge. Nothing is more disrespectful to a judge than a defendant chewing gum in the courtroom. You’ll likely get a “gentle” admonition from a deputy to spit out the gum before the judge takes the bench. All answers to the judge are “Yes, Your Honor” or “No, Your Honor.” Take out your face and nose piercings, plugs, and other less-than-conservative jewelry. If you have tattoos, try to hide them. Now don’t get offended. I’m tattooed, with two full sleeves and then some. I get it. But the courtroom is no place to show this stuff off.

If you are convicted, you will be subject to certain penalties. At sentencing you will be told what the costs and penalties are. Some things are mandatory, but some are up to the discretion of the judge. There are a whole host of things you must do if you get convicted. Most of these things are conditions of probation. For a first offense, they may include approximately the following: