An element the State has to prove in a DUI is that the accused was either driving or in "actual physical control" of the vehicle. Actual physical control sounds simple enough but the question of what is actual physical control has generated some interesting case law. Of note is that if the accused was not driving or the car was not moving, then the State can still prosecute a person having actual physical control.
Arrested for DUI? Before going to court, a driver's license will be suspended 10 days after the DUI arrest if the person refused to give a breath sample or sumbmitted to the test and blew over a .08. As to the license to drive, there are three options (1) request a hearing to reverse the suspension called a Formal Review Hearing, (2) request hearing for an immediate hardship license or (3) do nothing. The choice to do nothing is a choice to accept a driver license suspension. The deadline to file an election for a hearing at the Department of Highway Safety and Motor Vehicles (DHSMV) is also the same 10 day period before the suspension is imposed. The DUI citation is a driving permit for those same 10 days.
Arrested for DUI? Refusal to submit a sample of breath, blood or urine is a criminal offense in Florida if the person's license has been suspended in the past for refusing to submit to testing. An officer can request a driver to blow into the breath machine if a person is lawfully arrested. Unfortunately, officers will put people down as having 'refused' a breath test even when a person tries to blow. In the context of urine, stage fright will still be marked as a refusal.
The Department of Highway Safety and Motor Vehicles ("DHSMV") has jursidcition to suspend licenses for refusal to submit a breath sample, however their jurisdiction must be properly obtained. A person who is arrested for suspicion of Driving Under the Influence of drugs or alcohol ("DUI") in Florida will be asked to provide a sample of their breath by blowing into an Intoxilyzer 8000. If you refuse to blow, then your license will be suspended but you can challenge the suspension at an administrative hearing at the Department of Highway Safety and Motor Vehicles ("DHSMV"). There are several challenges that can be raised at a DMV hearing.
In DUI defense a common questions is "how do I avoid a DUI?" The answer is easy. If you drink don't drive and if you drive don't drink. The best way is to simply not drive to a drinking event. A taxi costs a heck of a lot less than a DUI attorney; it actually will cost you less than the court reporter. Depending on where you live, a taxi will run you less than the $25 is costs to file a request for a formal review hearing before the Department of Highway Safety and Motor Vehicles. The best way to avoid a DUI is to hire a taxi or ride share.
In criminal cases, searches resulting from vehicle stops have been hotly litigated since the automobile became available to the public in mass. Since cars are mobile and not as private as your home, the Supreme Court has interpreted the constitution to afford vehicle searches and seizures less protection.