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Chapter 316 of the Florida Statutes, 1999, makes it unlawful for an individual to drive while under the influence of alcohol or drugs. For a person to be guilty of this offense the prosecution must prove the following: 1) the person is driving 2) or in actual physical control 3) of a vehicle 4) within the state of Florida and 5) is under the influence to the extent that the person's normal faculties are impaired; or 6) the person has a blood or breath alcohol level of 0.08 or above.

1) The element of driving seldom creates a problem when attempting to prove DUI. It is often proved by direct eyewitness testimony or circumstantial evidence. (Admission, sitting in the driver's seat, standing by the car in an intoxicated state, etc.) Generally, there must be more evidence than a mere admission by the Defendant that he or she was driving.

2) Actual Physical Control means that the Defendant must be physically in the vehicle and have the capability and power to dominate, direct or regulate the vehicle regardless of whether or not he is exercising that capability or power at the time of the offense.

3) It may sound strange that the prosecution must prove the third element "of a vehicle." However, questions may arise when the "vehicle" is inoperable. For example, it may be out of gas. The State does not have to prove the vehicle is operable as an element of DUI; however, it may be a defense that can be raised by the Defendant. Note that bicycles, horses, farm tractors and golf carts are all considered to be vehicles.

4) When determining whether a Defendant is within the State, keep in mind that there are limits on where where certain police officers may enforce the traffic laws. For example, municipal officers can only enforce the laws within their own city limits.

5) Even though a Defendant may be under the influence of alcohol or some other substance, he is not DUI unless his normal facilities are impaired. Impairment is a subjective test based on an officer's visual observations. Normal facilities include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive a vehicle, make judgments, act in emergencies and, in general normally perform any mental and physical acts of daily life.

6) Even if you cannot prove that a person's normal facilities are impaired, there is a presumption of DUI if the blood alcohol level is .08 or above. Regardless of whether blood or breath alcohol level is used, the proof at the time of driving must be shown beyond a reasonable doubt. This leads to questioning about the accuracy of the methods of the machines used in testing as well as to whether proper procedure is used during testing.

The penalties for DUI are as follows:

1) a fine not less than $250 or more than $500 and imprisonment not more than 6 months for a first conviction.

2) a fine not less than $500 or more than $1,000 and imprisonment not more than 9 months for a second conviction.

3) a fine not less than $1,000 or more than $2,500 and imprisonment not more than 12 months for a third conviction.

Other penalties are provided by statute for subsequent violations and for in which damage to person or property occurs.