Florida DUI Laws and Penalties

Overview
We interviewed subject matter expert Robert Malove, a Board Certified criminal trial attorney (one of fewer than 400 in Florida) and founding member of the National College for DUI Defense, of The Law Offices of Robert David Malove, to give you the best possible answers on how Florida DUI laws and penalties actually work. This article covers the two tracks every arrest opens, the 10-day rule, the penalty ladder from first offense to felony, and why a conviction never comes off your record.

A Note Before You Read
This article answers the question the way Florida law answers it for most people. Your case has its own facts, and small details change outcomes. Nothing here is legal advice for your specific situation. If you want an answer about your case, call The Law Offices of Robert David Malove at (954) 861-0384. There is no pressure to hire anyone; you will simply get a straight answer.

The citation the officer handed you is doing double duty this week. It lists a court date near the bottom, and in the fine print it is also a notice that your driver’s license is suspended. That same piece of paper is also the only thing letting you drive, and it stops working at midnight on day 10.

If that is you, and you are reading up on Florida DUI laws to find out what you are facing, here is the short version: Florida can prove a DUI two ways, punishes it on two separate tracks at the same time, and your first deadline started the night of the arrest.

The sections below cover what the state has to prove, how the two cases run side by side, what the 10-day rule requires, what each conviction carries, and why a DUI stays on your record permanently. The answers come from a recorded conversation with Robert Malove, a Board Certified criminal trial attorney, former assistant public defender, and founding member of the National College for DUI Defense, in his own words.

Florida DUI laws make it a crime to drive while your normal faculties are impaired or with an alcohol level of .08 or higher, and every arrest opens two cases at once: a criminal prosecution in court and an administrative license suspension at the Florida Department of Highway Safety and Motor Vehicles (FLHSMV).

The rules live in a small set of specific places:

• Section 316.193, Florida Statutes: the elements, fine and jail ranges, felony thresholds, and DUI manslaughter.
• Section 316.1932, Florida Statutes: implied consent and refusal suspensions.
• Section 322.2615, Florida Statutes: the administrative suspension and the 10-day review window.
• Section 316.656, Florida Statutes: the ban on withholding adjudication, the reason a conviction cannot later be sealed.
• FLHSMV: runs the license side and keeps a conviction on your driving record for 75 years.

Board Certified criminal trial attorney Robert Malove of The Law Offices of Robert David Malove has defended Florida DUI cases since his twelve years as an assistant public defender, and his interview answers anchor every section below.

TL;DR

• Two ways to prove it. The state convicts by showing impaired normal faculties or an alcohol level of .08 or more; either alone is enough.
• Two tracks at once. The criminal case and the FLHSMV suspension run separately. Winning one does not win the other.
• Ten days to act. Your citation works as a license for 10 days after arrest. A hearing request or a waiver is due by day 10.
• No seal, no expunge. Section 316.656 bars withholding adjudication for DUI, and FLHSMV keeps the conviction on your record for 75 years.
• The ladder climbs. A second conviction within 5 years carries at least 10 days of jail; a third within 10 years can be a felony.

Florida Gives Prosecutors Two Ways to Prove the Same Crime

Under Section 316.193, Florida Statutes, the state proves DUI by showing either that you drove while under the influence of alcohol or certain substances to the extent your normal faculties were impaired, or that you drove with an alcohol level of .08 or more grams per 100 milliliters of blood or per 210 liters of breath. Either path alone supports a conviction.

Robert Malove put the number plainly: “the legal limit for a breath test in Florida is .08.”

The two paths cover different evidence. The impairment theory runs on driving pattern, video, and officer observation, and it needs no test result at all. The unlawful-level theory runs on the machine, and in a misdemeanor case, Robert explained, the state can request a breath test but cannot require a blood test. Florida does not use the term DWI; the charge here is driving under the influence.

Every Arrest Opens Two Cases That Run on Separate Tracks

A Florida DUI arrest starts a criminal prosecution in court and, at the same time, an administrative suspension of your driver’s license through FLHSMV. The two proceedings have different rules and independent outcomes.

“So there’s really two tracks. There’s an administrative aspect, because driving is a privilege, and you look at your driver’s license, it says that driving is a privilege,” Robert Malove said.

As Robert put it, “whatever happens at the administrative level at the DMV has no impact whatsoever on what happens in the criminal case. You can win the criminal case, lose the administrative hearing.”

The administrative side can only reach your license, while the criminal case carries the jail exposure and the permanent record. Board Certified criminal trial attorney Robert Malove of The Law Offices of Robert David Malove describes the FLHSMV review hearing as a proceeding where “the level of evidence that is required is very low” and the hearing officers are not lawyers: “even I’ve been in instances where I knew that I won … the hearing … because of what I presented, the hearing officer ruled against me.”

The 10-Day Rule Starts Running the Night of the Arrest

Your citation is both the notice that your license is suspended and a temporary permit to keep driving. Under Section 322.2615, Florida Statutes, the permit expires at midnight of the 10th day, and a request for formal or informal review of the suspension is due to the Department within the same 10 days.

Robert’s office builds the first week around that clock: “the first thing needs to really be addressed is to make sure we don’t miss that deadline.”

By day 10, the driver chooses:

• Request a review hearing. This contests the suspension. If it is lost, the hard no-driving period (30 days for an over-limit test, 90 days for a refusal) applies before hardship eligibility begins.
• Waive the hearing. For eligible first-time cases, waiving the review opens a hardship license without the hard suspension. Robert recommends it for clients with no prior DUI who depend on driving: “if they can’t drive to and from work or necessary on-the-job driving, they’re in a bad spot.”

Today, without a lawyer, you can find the citation, count 10 days from the arrest date, and enroll in DUI school, which the hardship application requires. Enrolling admits nothing in the criminal case. “The biggest disruption to anybody’s life, especially in this day and age, is mobility,” Robert said.

Refusing the Test and Failing the Test Carry Different Suspensions

A first breath test refusal suspends your license for one year, with no driving at all for the first 90 days. Blowing over the limit suspends it for six months, with a 30-day hard period.

Both flow from Florida’s implied consent law, Section 316.1932, Florida Statutes: anyone operating a vehicle in Florida is “deemed to have given his or her consent” to an approved breath test. Robert laid the two suspensions side by side: “If you refuse, your license gets suspended for 12 months with no driving for 90 days. If you take a breath test, and it’s over the legal limit, it’s a 6-month suspension with no driving for 30 days.”

The over-limit version has its own name in Florida practice: DUBAL, driving with an unlawful blood or breath alcohol level. Refusing a first breath test is not itself a crime; it costs you the suspension. Refusal becomes a first-degree misdemeanor under Section 316.1939 only after a prior refusal suspension, and a second refusal carries an 18-month suspension.

A First Conviction Carries Mandatory Minimums a Judge Cannot Waive

A first DUI conviction is a misdemeanor, and Section 316.193 sets floors that apply even on a plea: a fine of $500 to $1,000, up to six months in jail, a combined probation-and-incarceration term capped at one year, at least 50 hours of community service, 10 days of vehicle immobilization, and DUI school. At .15 or higher, or with a minor in the vehicle, the fine rises to $1,000 to $2,000 and the jail ceiling to nine months.

Robert framed the floor bluntly: “There’s mandatory minimum punishments if someone takes a plea to a DUI.”

The item with the longest reach is adjudication. A DUI plea carries a permanent adjudication of guilt, and the next two sections explain what that means for repeat offenses and for your record.

Penalties Escalate With Each Conviction Until DUI Becomes a Felony

Florida’s penalty ladder is built on lookback windows. A second conviction within 5 years requires the court to order “imprisonment for not less than 10 days,” plus a $1,000 to $2,000 fine, at least a year of ignition interlock, and up to nine months in jail. A third within 10 years requires at least 30 days in jail and is a felony of the third degree. A fourth is a felony of the third degree regardless of timing.

Injury changes the ladder entirely. DUI causing serious bodily injury is a felony of the third degree, and in felony cases the state can require a blood draw and subpoena hospital blood records, which is why, in Robert’s experience, some clients leave the hospital and are not arrested until a month or two afterward, when the blood work comes back.

At the top of the ladder sits DUI manslaughter, a felony of the second degree carrying a mandatory minimum term of imprisonment of 4 years. In Robert’s words, “the consequences of a DUI … manslaughter are severe.” The sentences he has seen in his own cases start around 12 years and run well past the statutory floor, because Florida’s Criminal Punishment Code scoresheet adds points for each victim.

A DUI Conviction Stays on Your Record for 75 Years

Florida law forbids the usual escape hatches. Under Section 316.656, Florida Statutes, no court may suspend, defer, or withhold adjudication of guilt for a violation of Section 316.193, and when a breath or blood test shows an alcohol level of .15 or higher, a judge cannot accept a plea to a lesser offense. Sealing and expungement depend on avoiding an adjudication, so a DUI conviction is permanent, and FLHSMV states that DUI convictions must remain on your driving record for 75 years, with a license revocation of at least 180 days on any conviction.

“You can’t take that off your record, it’s not subject to expungement. You can’t get it sealed. It stays with you forever,” Robert Malove said of a DUI adjudication.

The one route around permanence runs before conviction. Many Florida counties offer first-offender diversion programs in which the case resolves to the lesser charge of reckless driving with a withhold of adjudication, sealable after probation is completed. The programs are county-run rather than statewide, and Robert described real limits: a crash disqualifies you, a second offense disqualifies you, and some programs exclude high breath test results. He finds that last rule backwards, since a driver who refused the test never produced a number at all, but “those are the rules of the game, and so we have to learn how to work within them.”

What Robert Malove’s Office Does in the First 10 Days

The work starts with protecting the deadline and then moves to taking the case apart. Robert’s office secures the license question by day 10, files a notice of appearance with the state attorney’s office, and starts on the evidence while it still exists: scene visits to look for Ring cameras and other recordings, and body-camera and dash-camera footage reviewed against the officer’s written story.

Board Certified criminal trial attorney Robert Malove of The Law Offices of Robert David Malove is one of fewer than 400 Board Certified criminal trial attorneys among more than 100,000 active Florida Bar members, and he is certified to operate the Intoxilyzer breath testing instruments the state uses. That is the work his Fort Lauderdale DUI lawyer office and his Miami DUI lawyer team apply to calibration records, service histories, and the gap between the number and the video.

On cost, Robert is direct: “the conviction for a DUI is an expensive … issue.” Insurance cost after a conviction is a recurring client concern, and one reason he tells people that money spent contesting a case can be an investment rather than a fee. He measures the representation by where the client ends up compared to where he found them, and for clients with substance abuse problems that means encouraging treatment as part of the work. He also tells people that “the best way to beat a DUI case is called Uber.”

Frequently Asked Questions

What are Florida’s DUI laws?

Florida DUI laws are set out in Section 316.193, Florida Statutes. Driving under the influence means driving with your normal faculties impaired by alcohol or certain substances, or with a blood or breath alcohol level of .08 or higher. Every arrest opens two proceedings at once, a criminal case in court and an administrative license suspension at FLHSMV, and the two run independently.

What happens if you refuse the breath test in Florida?

A first refusal suspends your license for one year, with 90 hard days of no driving unless you waive the review hearing and qualify for a hardship license. A second refusal carries an 18-month suspension and is a first-degree misdemeanor under Section 316.1939, Florida Statutes.

How long does a DUI stay on your record in Florida?

FLHSMV keeps a DUI conviction on your driving record for 75 years. Because Section 316.656 bars courts from withholding adjudication on a DUI, the conviction cannot be sealed or expunged. The exception runs through county first-offender diversion programs, where the case resolves to reckless driving before any DUI conviction exists.

Do first-time DUI offenders go to jail in Florida?

The statute allows up to six months on a standard first conviction, nine at .15 or higher or with a minor in the vehicle, but jail is not mandatory. Robert Malove’s experience: “for the most part, first offenders don’t go to jail.” Outcomes vary by county and judge, and he has seen jail imposed on a first offense after trial.

Talk to a Florida DUI Lawyer Before Your 10 Days Run Out

Robert Malove is a Board Certified criminal trial attorney, one of fewer than 400 in the state out of more than 100,000 active members of the Florida Bar. The distinction requires at least 25 contested cases and a minimum of 20 jury trials every 5 years.

If you are under investigation, have been arrested for DUI, are facing a second charge, or have a conviction on your record and want an expert criminal defense attorney on your side, fill out this form or call us now at (954) 861-0384.

The Law Offices of Robert David Malove serves clients across Florida, with DUI defense teams in nine offices: Fort Lauderdale, Miami, Orlando, West Palm Beach, Fort Myers, Fort Pierce, Gainesville, Key West, and Sarasota.