In February of 2017, the Tampa Bay Times published an article entitled "Will new state attorney give DUI drivers a big break?" The author noted that in courtrooms throughout the state of Florida, many first time offenders are able to avoid convictions (or have their charges dismissed altogether through some form of pre-trial intervention or diversion program) for minor offenses. DUI, typically, is not one of them. I would add that many first time offenders are able to avoid convictions or get their charges dismissed in cases more serious than a first time DUI, through the same methods. Often times, a prospective DUI client will ask whether he or she will have a criminal record at the conclusion of their case and whether the record can be sealed. The answer, typically, is yes - you will likely have a conviction for a traffic misdemeanor and, as a result, you will not be able to seal or expunge it. The Times article contemplated the possibility of Hillsborough's newly elected State Attorney implementing a program that would avoid a criminal conviction for first time DUI offenders through similar means. Just this month, that question was answered in the affirmative.
In implementing the program, the State Attorney's Office noted Hillsborough County has consistently been ranked as the worst, or close to it, for DUI related crashes, injuries, and fatalities. The "RIDR", or "Reducing Impaired Driving Recidivism" program, seeks to aggressively target and reduce instances of impaired driving by imposing enhanced sanctions for first time, non-aggravated DUI offenders. Aggravated DUIs are typically those with an inordinately high BAC or where there is a minor child in the car at the time of its commission. Another stated purpose of the program is to eliminate the incentive for offenders to refuse to provide a breath sample, thereby promoting consistency in the prosecution of DUI cases (more on that below).
- Eligibility
You should know that there are certain eligibility pre-requisites that must be met, which are as follows:
- The offense must be a misdemeanor DUI;
- No minor in the vehicle, BAC of .20 or higher, or a crash;
- No prior: DUI, alcohol related reckless driving, DWLSR with serious bodily injury or death, leaving the scene of an accident with injury or death, vehicular homicide, DUI diversion program or more than one non-DUI diversion program as an adult, or, in the five years prior to the date of offense, no adjudication, a withhold, or any portion of a sentence on a felony.
- No pending: Florida driver's license suspension, DUI, DWLSR with serious bodily injury or death, leaving the scene of an accident with injury or death, vehicular homicide, or participation in pre-trial intervention or probation.
The State Attorney's Office has announced that they will evaluate all cases re: eligibility for the program on an individual, fact specific basis. Whether the person is approved or not is in the sole discretion of the State Attorney's Office and may be based on factors not detailed above. One thing that will almost assuredly result in non-admittance to the program for an otherwise qualified offender is rudeness or aggression toward the police officer during the DUI investigation. DUI investigations are almost always recorded, and if you are loud, profane, and/or uncooperative, the officer will likely be asked to weigh in on whether you should be afforded this opportunity. Always be polite folks: anything less will get you nowhere, trust me on that.
- Procedure
There are three classes of DUI offenses that will determine the respective sanctions:
- Level 1 - BAC at or below a .15
- Level 2 - BAC above a .15 or no breath sample
- Level 3 - Drug related DUIs.
You will note that cases involving "no breath sample" (e.g. a refusal) are placed in the same sanction category as those offenders with a BAC of .15 or higher. This is how the State Attorney's Office intends to eliminate the incentive to refuse to provide a breath sample and, I think it will likely work. By submitting the sample, you have a decent chance at avoiding the graduated sanctions. If, however, you are above a .15, you aren't any worse off than you would be had you refused (unless, of course, your BAC is high enough to get you disqualified from the program).
At the arraignment date, the offender will be required to waive speedy trial and agree to set the case for a disposition approximately sixty days out.
Before the scheduled disposition hearing, the offender must provide proof of completion of the pre-plea sanctions to the State Attorney's Office.
At the disposition hearing, the offender who has completed the pre-plea sanctions may accept the plea offer, enter a plea, and be sentenced as part of the RIDR program.
- Pre-plea Sanctions
All offenders (regardless of offense level) must comply with the following:
- Remain crime-free;
- Complete DUI School, undergo an alcohol evaluation, and begin treatment;
- Attend a MADD victim impact panel; and
- Complete ten community service hours.
Level 1 and level 2 offenders must further provide proof of installation of an ignition interlock alcohol monitoring device or a continuous alcohol monitoring device (e.g. a SCRAM monitor).
Level 3 offenders must further: not possess or consume alcohol, illegal drugs, or non-prescribed drugs and use PharmCheck Drugs of Abuse Patch with results provided to the SAO.
- Plea Offer
Upon satisfactory completion of the pre-plea sanctions, offenders will be permitted to enter a plea to the amended charge of reckless driving with the following sanctions:
- Withhold of adjudication;
- Twelve months of probation;
- Standard court costs and conditions of probation;
- ten day vehicle immobilization
- No possession or consumption of alcohol, illegal drugs, or non-prescribed drugs during probation; and
- Successful completion of DUI School and any recommended treatment (note that this is also a pre-plea condition; the SAO will credit offenders for sanctions already completed at the time of sentencing).
Level 1 offenders must further complete:
- Fifty community service hours; and
- Three months of ignition interlock alcohol monitoring or continuous alcohol monitoring.
Level 2 offenders must further complete:
- Seventy-five community service hours; and
- Six months of ignition interlock or continuous alcohol monitoring.
Level 3 offenders must further"
- Complete fifty hours of community service; and
- Wear a PharmCheck Drugs of Abuse Patch for three months with results provided to HCSO probation.
As indicated above, the SAO will credit the offender for all sanctions completed between the time of the arraignment and the disposition hearing.
- The Bottom Line
While the RIDR program requires the offender to be proactive in completing many of the associated DUI sanctions, and imposes conditions that are more punitive than would otherwise be required, the opportunities afforded to the first time DUI offender cannot be understated. As a St. Petersburg DUI attorney, I have handled countless DUI cases throughout Pinellas, Pasco and Hillsborough Counties and can say that most of my first time DUI offenders have no prior record and rarely re-offend. The State Attorney's Office quite clearly recognizes that most first time DUI offenders, in non-aggravated cases, are deserving of a second chance to avoid a criminal conviction and this program does just that. Because of the amendment in charge, there is no statutorily required license driver's license suspension which is also significant.
In short, I think Andrew Warren got it right. It just doesn't seem equitable that a first time offender can avoid a conviction for many felony offenses but cannot for a misdemeanor DUI. His program is tailored to the right type of offender with the right dose of sanction to achieve the program's purpose. Will Pinellas and Pasco Counties follow suit? I don't know, but I will be sure to keep you posted. You can also expect updates from me on Hillsborough's program as more information becomes available.