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DUI Defense

DUI attorney in Volusia County Florida

Driving under the influence is also known as DUI. We are always available to answer your questions. We make sure that it is easy for you to schedule consultation via phone or in the office. We'll explain how to protect your rights for you during this consultation.

Employ the services of an experienced DUI defense lawyer that is a local to Volusia County. It is important that you employ the services of a lawyer early so that your driving privilege is protected and your chances of not being convicted of DUI is increased.

Some of the general phases on a DUI case are:

  • Deciding if a formal review or a waiver of formal review with the DMV bureau of administrative review is the best choice for you.
  • Attending the arraignment and all pretrial conferences.
  • Litigating and filing all pre-trial motion hearings that might involve a motion for the charges to be dismissed or for evidence to be suppressed.
  • Negotiate a favorable resolution with the office of the State Attorney.
  • Conducting the trial, if a trial becomes necessary.

Is a DUI in Florida a misdemeanor or a felony?

The most common enhancements that make a DUI charge in Florida a felony would be:  

  1. A third DUI arrest within 10 years of the conviction for the second DUI can be a felony.
  2. Has caused or was the reason for a crash that resulted in severe injury to the body or death, or
  3. Has three prior DUI convictions throughout the person's lifetime (4th lifetime DUI).

An enhanced DUI can be any charged if the DUI alleges:

  1. that a passenger in the vehicle was a child or under the age of 18; or
  2. the driver had a blood alcohol reading (BAC) of .15 or higher

Why is a DUI case so serious in Florida?

The accused is not allowed to bond out of jail for a BUI and DUI charger under § 316.193(9) and 327.35(8), Fla. Stat., until:

  • the level of breath or blood alcohol is below 0.05, or
  • It has been 8 hours after the time of arrest

Every DUI conviction involves very severe minimum mandatory penalties that are oftentimes even more severe than a lot of third-degree felonies.

DUI cases involve scientific evidence like chemical testing of the blood, urine or breath and sobriety testing are, most times the trials are more complicated than a lot of second-degree felony charges. Because of this it is a good idea to have an attorney with a lot of experience, or mistakes can be made.

Because of pressures from citizen action groups like Mothers Against Drunk Driving (MADD), prosecutors are very aggressive when it comes to prosecuting DUI cases.

Rule 6.290 of the Florida Rules of Traffic Court and section 316.656, Florida Statutes provides that, ”no court shall suspend, defer, or withhold adjudication of guilt or the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle (DUI) while having a blood or breath alcohol level over the legal limit of .08; or under the influence of alcoholic beverages, any chemical substance outlined in section 877.111, Florida Statutes, or any substance controlled by chapter 893, Florida Statutes”.

This means that even a 1st conviction for Dui must include an adjudication of guilt. The record of the person convicted of DUI can never be sealed or expunged.  

It is imperative that the DUI defense attorney that you are considering hiring is well versed in all the technical aspects of DUI law.  

Administrative suspension of your driver's license in a DUI case.

Protecting your driving privilege is the first priority in any DUI case that I handle. Your driver's license will be taken by an officer after you have been arrested, and a notice of suspension will be issued to you if:

  • you refuse the breath, blood, or urine test or
  • you blow over the legal .08

Most people who are arrested for DUI do not know that they can continue to drive for 10 days after the arrest. The DUI citation that is issued by to arresting officer becomes a temporary (10 day) driving permit. During this 10 days period after the arrest, you must choose between these options:

Contest the suspension and request a formal review or

Waive the formal review.

There are pros and cons to each of these choices and what is best for you depends on your unique circumstances. I recommend that you discuss these choices with me directly. Below I will explain the process to give you a sense of what each option entails, but you need to take quick action in order to protect your driving privileges. If you allow the 10-day period to run you will have forfeiting your choice. Contact me today to discuss this important decision.

Contesting the suspension/ Formal review hearing

Demanding a formal review hearing is a good choice for some people.  

By having a formal hearing, you are able to preview the evidence against you. The hearing is conducted by Attorney Larry Avallone and he can subpoena the officers involve and ask them questions about the circumstances and the evidence in the case.

Reasons why the administrative suspension may be invalidated

According to Florida law, if the breath test operator or arresting officer do not show up, the hearing officer shall invalidate the suspension. Here are other reasons the suspension might be invalidated by the hearing officer:

  1. If the police reports and other documents that are needed is not submitted by the arresting officer for the hearing.
  2. If there is not enough evidence to corroborate with some issues in the case.
  3. If there was an illegal arrest or stop.
  4. If there's inconsistency in the blood or breathe test.
  5. If the advice given by the officer on the consequences of refusing or taking the test was wrong.
  6. If the refusal to submit promptly was recanted by the defendant and he later agreed to chemical test.
  7. If before a custodial interrogation, the officer did not read the Miranda warnings for the defendant.
  8. If field sobriety exercises were forced on the defendant.
  9. If before the breath test, the 20 minutes period of observation was not adhered to.
  10. If there was no valid reading over the legal limit from the test machine.
  11. If the agency inspector or breath test operator did not have a permit that was valid or
  12. If the breath test machine was not well maintained or properly inspected by the authorities.

If you are successful in your formal review hearing, your administrative suspension will be invalidated. This means that the administrative suspension is expunged completely from your record.
To know more on fighting the administrative suspension of your license, call a DUI defense lawyer in Daytona Beach Florida.

Waiving the formal review

For some clients, it is best to waive the formal review. You are eligible to waive the formal review if it is your 1st DUI charge. After you have enrolled in DUI school then you can apply to waive the formal review and the DMV will issue a business purpose only permit to you immediately. Some clients that I have had tell me that they simply cannot risk being without a license and this option takes the guess work out of this part of the process. I am available anytime to discuss what the best option if for your individual circumstance.

Duration of the administrative suspension

The duration of administrative suspension is itemized below. The hard period is when you are not qualified for a hardship license.

First DUI Offense

If you agreed to the chemical test, 6 months (30-day hard period) or
If you refused, 12 months (90-day difficult period)

Second DUI Offense
If you agreed to the chemical test,12 months (30-day hard period)
If you refuse to take the chemical test with no history of refusal, 12 months (90-day hard period) or
If you refuse to take the chemical test with a history of refusal, 18 months (18-month hard period)

Third or Subsequent DUI Offense
If you agreed to the chemical test,12 months (12-month hard period)
If the test was not taken with no prior refusal, 12 months (12-month hard period)
If the test was not taken and you have refused before,18 months (18-month hard period)

Fighting your case in court

The office of the clerk will organize your first court date referred to as arraignment. For people who do not have a lawyer, the charges will be read by the court and the people would be asked to enter a plea- either guilty or no contest. It is rarely a good idea to enter a plea of guilty or no contest at arraignment.  

It is not a good idea to settle your case without a criminal defense lawyer. You need to review all the evidence before entering into a plea. Before considering a plea of no contest, you need to meet with a DUI lawyer so you can fully understand what your options are.

If the case is reduced to reckless driving, a conviction can be avoided with adjudication being withheld. You might be qualified to seal the history record of the criminal after resolving the case.

Enhanced penalties apply for cases that involve:

  • DUI with property damage
  • Blood or breath test BAC at 0.15 or above
  • If a person under 18 years of age is in the car

How the charges are fought by your attorney
Your appearance will be waived by the lawyer at arraignment and a plea of not guilty would be entered on your behalf if you hired a private lawyer.

We regularly file motions concerning:

  1. That the state attorney's office be asked to provide us with a copy of all the evidence in the case including the police report, accident report (if any), video at the crime scene or the police station, and information on chemical testing of the breath blood or urine;
  2. Motions that dispute the legal sufficiency of the charging document; and
  3. Motions designed to limit, suppress or exclude evidence in the case

After the arraignment, the next court date will be a pretrial date. A pretrial is set each month. In most cases we waive the appearance of our clients at the pretrial court dates. The purpose of each pretrial to allow the judge to keep track of all the cases on the docket. Some cases will be a resolved, some continued and other will be set for trial. Since these dates concern more scheduling rather than substance, we often suggest that our clients do not need to attend.

We are committed to always keeping our clients completely informed about the status of the his or her case so there is never a worry about missing anything important.

Why DUI charges must be contested 

A DUI conviction could lead to thousands of dollars in fines, court costs, expenses for DUI school, vehicle impound, time and energy to complete the mandatory community service hours, increased insurance premiums and more.

DUI convictions are avoided mostly when the prosecutor agrees to amend the charges to reckless driving. The reckless driving result is usually achieved when an experienced DUI attorney proves to the prosecutor that the case is not strong.

The court will suppress evidence in the case if the reason why the officer stopped the vehicle is unconstitutional. The charges might be dropped, if that evidence is excluded.

We have represented people from all walks of life who have been charged with driving under the influence. We have represented college students, nurses, doctors, lawyers, schoolteachers, law enforcement officers and their family members. A DUI arrest does not have to define your life.

The Legal Definition – Two different way to prove a DUI case in Florida

There are two theories which the prosecutor might use while attempting to prove a DUI case.
The prosecutor can try to show that you were under the influence of alcohol or an intoxicating substance to the extent that your normal faculties were impaired by these substances.
Another option is that the prosecutor might try to show that your performance on a chemical test, such as a breath or blood test showed that your blood- alcohol level is .08% or above. The potential penalties are the same, irrespective of this theories.
If the prosecutor can prove that the reading on your breath test was over .15, enhanced penalties will apply. Enhanced penalties include an ignition interlock device and higher fine. If there is a child passenger in the vehicle or damages to property, the DUI penalties becomes more serious.
Call us to discuss your case if you have been arrested for driving under the influence. 

Refusal to submit to a chemical test

The strongest evidence when the state of Florida attempts to prosecute a DUI case, is typically the result of a chemical test, which includes a blood test, urine test, or breath test. The prosecutor will try to prove that the criminal test shows intoxication or impairment due to the presence of alcohol, prescription drugs, or controlled substance.

In Volusia County, if the driver refuses to submit to a chemical test called (a DUI Refusal), the state will no longer have that evidence. In a refusal case, the prosecutor will argue that the person refused the test because he or she knew they were guilty. This is called the consciousness of guilt principle.  
The court will consider state and federal constitutional provisions, the rules of evidence, common law provisions, statutory rules and administrative rules in order to determine whether to admit or exclude the evidence that the driver refused to submit to the test. Also, if the constitutional or statutory rights were violated by a law enforcement officer before the blood, breath, or urine test, the court can then exclude or throw out any evidence that the client refused to take the chemical test.
Refusal cases can be hard for the prosecutor to take to trial because the prosecutor's most potent piece of evidence, which is the test result, is not in existence. Refusal as a secondary offense
If you have previously had your driver license suspended for refusing to submit to a chemical test, will probably be an additional criminal charge for a first-degree misdemeanor.
A second refusal to submit to a breath, blood, or urine test was criminalized by the Florida legislature in July 2002. This means that, you might be charged with two different offenses (DUI and a second refusal to submit to DUI testing charge), if you refuse to take a breath test a second time.


There are defenses to fight the separate charges of refusing to submit to a chemical test for the second time. We are available 24/7 to answer your questions.

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