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The Florida Bar

Enhanced DUI

DUI Lawyers in Broward County pay special attention to the charging document in all criminal cases alleging driving under the influence.

In State v. Rodriguez, the Court ruled that the basis for enhancement of the charge must be alleged in the charging document. In Rodriguez, the defendant was convicted of a felony based on three prior DUI convictions. One issue was whether the information was sufficient to invoke the jurisdiction of the circuit court where it alleged that the defendant had committed DUI in violation of Florida Statute § 316.193(1) and (2)(b), but failed to allege the prior convictions. The Court held that, since section 316.193(2)(b) deals solely with a felony charge, the information was sufficient to invoke the jurisdiction of the circuit court.

In the same case, however, the Court held that the information was insufficient to comply with due process requirements. The Court stated: (1) the combined existence of three or more prior DUI convictions is an essential element of the substantive offense of felony–DUI, which the charging document must allege and the State must prove beyond a reasonable doubt; and (2) to comply with the notice requirement, the State must allege the specific prior convictions in the charging document.

Broward County DUI lawyers know that the consequences of the failure to allege the specific prior convictions is dependent on whether there was sufficient evidence of the priors in the record. In Rodriguez, the Court held that on remand the defendant could only be convicted of a first offense DUI because there was sufficient evidence that the defendant had committed DUI, but insufficient evidence of the prior convictions. In contrast, in Shafer v. State, where the information suffered from the same defect in notice recognized in Rodriguez, the court remanded for a new trial because the record contained sufficient evidence of the prior DUIs.

It is important that Broward County DUI lawyers understand that Rodriguez and the other cases dealt exclusively with felonies. The rule for misdemeanors differs, depending on the basis for enhancement. If the basis for increasing the penalty on a misdemeanor is one or two prior convictions, the charging document need not allege them to comply with due process requirements. Rodriguez does not apply to misdemeanors. The rule is different, however, if the basis for the enhancement is a high blood or breath alcohol level, the presence of a minor in the vehicle, property damage, or bodily injury. These matters are considered elements of the misdemeanor charge and must be alleged or the sentence cannot be increased. Furthermore, the Broward County State Attorney’s Office cannot rely on the other counts of the information to cure the defect in the DUI count.

When the Broward State Attorney seeks enhancement based on an alcohol reading of .15 or above, the processing of the case is impacted in another important way. Florida Statute § 316.656(2)(a) bars a trial judge from accepting a plea to a lesser offense. It is improper for the court to accept a plea to DUI with an alcohol level of .15 or above. But the trial judge should be circumspect in responding to attempts by counsel to resolve cases in a way that violates the statute. The Broward County judge can reject the plea, but it constitutes an abuse of discretion to dismiss the case just for that reason.

As with most rights, however, the defendant must exercise them by and through their Broward County DUI Attorney. One who enters a plea of guilty or nolo contendere to a charging document that fails to allege proper elements for enhancement without raising the defect or reserving the point for appeal, waives the point. This is true even if the charge is a felony, if the information contains some allegation such as: “Felony Driving Under the Influence of Alcoholic Beverage or Controlled Substance, a Third Degree Felony.” As the Court held in Rodriguez, such allegations are necessary to establish jurisdiction, which cannot be waived. The plea waives only the due process claim.

Questions regarding charging documents as they pertain to the offense of driving under the influence charges should be directed to the Broward County DUI attorneys of William Moore Criminal Defense P.A.

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