The penalties and punishments in a DUI case depend, in part, on whether the person has any prior convictions for a DUI (or similar offense) and when those prior convictions occurred. Different penalties can exist for second or subsequent DUI cases including:
- a second DUI conviction outside of five years;
- a second DUI conviction within five years;
- a third DUI conviction outside ten years of a prior;
- a third DUI conviction within ten years of a prior; or
- a fourth or subsequent DUI conviction.
So what counts as a prior DUI conviction under Florida law?
Florida Statute Section 316.193(6)(k) provides:
For the purpose of this section, any conviction for a violation of s. 327.35 a previous conviction for the violation of former s. 316.1931, former s. 860.01, or former s. 316.028; or a previous conviction outside this state for driving under the influence (DUI), driving while intoxicated (DWI), driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level (DUBAL), or any other similar alcohol-related or drug related traffic offense, is also considered a previous conviction for violation of this section.
What is the Prosecutor Required to do to Prove the Prior DUI Conviction Exists?
In most cases, the records of the Florida DHSMV are sufficient to establish the prior DUI conviction. Essentially, a certified copy of the driving record which shows the prior conviction creates a rebuttable presumption that the prior DUI conviction occurred. Florida Statute Section 316.193(12) provides:
…If the records of the Department of Highway Safety and Motor Vehicles [the Florida DHSMV] show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence [DUI]. However, such evidence may be contradicted or rebutted by other evidence presented in deciding whether the defendant has been previously convicted of the offense of driving under the influence.
So any out-of-state convictions for driving under the influence (DUI), driving while intoxicated (DWI) driving with an unlawful breath-alcohol level (DUBAL) or or other similar alcohol related traffic offense can be used as prior convictions for enhancement purposes. Even a prior boating under the influence (BUI) conviction will count as a prior for purposes of enhancing the jail and fines but NOT for purposes of enhancing a driver’s license suspension. See Florida Statute Section 316.193(6)(k); 316.193(6)(b) and (c).
Additionally, he Florida courts have found that certain types of prior convictions other than DUI and DWI count such as:
- DWAI under Colorado law counted as proof [see McAdam v. State, 648 So.2d 1244 (Fla. 2d DCA 1995)]
- Conviction for DWAI under New York law
was also found to be sufficient to count as a prior conviction [see DiPiertro v. State, 992 So.2d 880 (Fla. 4th DCA 2008)].
The fact that the prior DUI conviction is still being appealed and no mandate has been issued does not make the conviction insufficient for sentencing purposes for a subsequent DUI conviction. See State v. Finelli, 780 So.2d 31 (Fla. 2001). In certain cases, the prosecutor is not required to alleged the priors in an information before the defendant can receive enhancements, particularly in misdemeanor cases such as a second DUI within 5 years, or a third DUI outside of 10 years. See State v. Haddix, 668 So.2d 1064 (Fla. 4th DCA 1996). For felony DUI cases based on the number of prior DUI convictions (either third within 10, or a fourth or subsequent DUI), the prosecutor is required to allege the prior DUI or related convictions in the charging document.
What if the Prior DUI Conviction Doesn’t Show up on my Florida Driving Record?
In certain cases, a prior out-of-state DUI conviction will not show up on the driver’s Florida driving record. The state may decide to order the defendant’s driving record directly from another state. The state may attempt to obtain a certified copy of the final disposition of that prior DUI or related conviction directly from the other state. But when the prosecutor makes an offer and is unaware of the prior conviction the defendant has the right to remain silent concerning any prior DUI convictions. Fla. R. Traf. Ct. 6180(a) and (b).
Since the Prosecutor Doesn’t Know About the Prior Shouldn’t I Just Enter the Plea Quick?
Keep in mind that even if the prosecutor or the judge doesn’t know about the prior conviction, that Florida Department of Highway Safety and Motor Vehicles (DHSMV) may already know about the conviction or may eventually discover the prior conviction.
The DHSMV can impose a revocation (or even a lifetime revocation for a fourth DUI) even if the conviction was not considered a “fourth DUI” conviction for sentencing purposes by the trial court. Entering a plea to avoid the enhanced penalties that could be imposed by the court may or may not be in the driver’s best interest.
Leslie Sammis is a criminal defense attorney at the Sammis Law Firm who focuses on DUI cases in Tampa, FL. The information contained in this post is not legal advice but just general information. Each case is different and considerations not mentioned in this post may come into play in a particular case.