Fourth DUI Penalties
Effective October 1, 1986, the Florida Legislature in Chapter 86-296 of the Florida Laws created Section 316.193(2)(b), which provides that any person who is convicted of a fourth or subsequent violation of driving under the influence is guilty of a felony of the third degree punishable as provided in Section 775.082, Section 775.083, or Section 775.084 of the Florida Statutes.
The penalties for a fourth DUI include up to five (5) years in prison. Only a $2,000 fine is mandatory, but the court can impose a fine of up to $5,000. One of the most severe consequences of a fourth DUI conviction is the lifetime revocation of your driver’s license.
To prove the prior DUI convictions, the prosecutor needs a certified copy of a judgment and sentence showing that you were convicted of DUI or a DUI-related offense. In most cases, the prosecutor also needs proof of the following:
- you were represented by a criminal defense attorney when you entered the plea; or
- you signed a waiver indicating that you freely and voluntarily gave up the right to be represented by a criminal defense attorney.
For DUIs that are old or occurred out of state, obtaining such proof becomes difficult for the prosecutor. As a result, the criminal defense attorney can file a motion to have the DUI reclassified as a misdemeanor.
In other cases, the prosecutor and judge might not know about all of the prior convictions. Nevertheless, the DHSMV will treat the case as a fourth DUI even if the trial court does not.
In other words, if the DHSMV records show you have a fourth DUI conviction (regardless of how the court treated it at sentencing), the DHSMV will impose a lifetime revocation of your driver’s license.
For this reason alone, it is crucial to avoid a fourth DUI.
Attorneys for a Fourth DUI in Tampa, FL
Contact a DUI Lawyer in Tampa, FL, at Sammis Law Firm to discuss this felony offense with criminal penalties. Call us to determine whether your three or more prior convictions can be used against you to enhance this DUI to a felony.
During the consultation, we can help you understand the best defenses to fight the charge, ways to avoid the typical administrative and criminal penalties, and the best way to fight for a case dismissal.
You only have ten (10) days after your arrest to demand a formal review hearing to challenge the administrative suspension of your driver’s license.
Act quickly to protect your rights as you fight for the best possible result.
Call (813) 250-0500.
Florida Statute Section 316.193(2)(b)(3)
Florida Statute Section 316.193(2)(b)(3) provides that a fourth or subsequent conviction for a DUI constitutes a third-degree felony and Level 6 offense under 316.193(2)(b).
The prosecutor may be precluded from using prior misdemeanor convictions to support a felony DUI conviction under this provision if:
- the prior convictions occurred when an attorney did not represent the person convicted;
- the defendant was indigent and entitled to court-appointed counsel;
- the defendant did not waive the right to counsel; and
- the convictions were punishable by imprisonment.
See State v. Kelly, 999 So.2d 1029, 1053 (Fla. 2008).
Suppose the prosecutor has charged a DUI as a felony based upon a belief that three prior convictions had occurred. In that case, the defendant bears the initial burden of showing through a written motion under oath that at least one of the previous convictions should be eliminated.
As a practical matter, it is often more difficult for the prosecutor to prove prior convictions if the convictions are more than ten (10) years old or if the convictions occurred in another state.
Suppose one or more of the prior DUI convictions occurred in Florida. In that case, the prosecutor might send a notice of intent to rely upon a certification of a business record, a certified copy of DHSMV records, under Section 90.803(6)(c), Fla. Stat.
In this context, Section 90.803(6)(c) requires the prosecutor to serve reasonable written notice of that intention. and to make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence.
The defense attorney can file a motion opposing the admissibility of such evidence for a hearing before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for “good cause shown” may grant relief from the waiver.
Permanent Lifetime Ban – Florida Driver’s License Revocation
If you are convicted of a fourth DUI, your Florida driver’s license or privileges will be permanently revoked under section 322.28(2)(d), Florida Statutes. That statute provides in pertinent part that “[t]he court shall permanently revoke the driver license or driving privilege of a person who has been convicted four times for violation of s. 316.193.”
The statute further provides that if a court does not do so, then “the department shall permanently revoke the driver’s license or driving privilege pursuant to this paragraph.” Id.
Additionally, the statute specifies that “a conviction of driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other similar alcohol-related or drug-related traffic offense outside this state is considered a conviction for the purposes of this paragraph.” Id.
Under section 322.24, Florida Statutes, the Department is authorized to revoke the license of any Florida resident upon receiving notice of the conviction of such person in another state, which, if committed in Florida, would be grounds for revocation.
This action may be taken without a preliminary hearing, based solely upon a showing of the Department’s records that the person “[h]as committed an offense in another state which, if committed in this state, would be grounds for suspension or revocation.” § 322.27(1)(e), Fla. Stat.
This means that by statute, the Florida Department of Highway Safety and Motor Vehicles (DSHMV) is required to permanently revoke a person’s driver’s license after four DUI convictions, even if the revocation is based on out-of-state convictions which, if committed in this state, would provide grounds for revocation.
The most severe consequence of a fourth DUI conviction is that a fourth DUI in Florida permanently revokes your driver’s license (regardless of whether it is treated as a first, second, third, or subsequent DUI by the trial court at the sentencing hearing).
If you were arrested for DUI and three prior DUIs appear on your driving record, either now or in the future, your driver’s license will be permanently revoked. Florida law now provides that it is possible to obtain a hardship license after serving five (5) years of the revocation period.
- You are not authorized to operate a motor vehicle for the remainder of your life unless you obtain a hardship driver’s license. A hardship driver’s license is granted only in specific circumstances and restricts the driving privilege.
- You may apply for a hardship license five years AFTER your most recent DUI conviction or five years AFTER the date you were released from incarceration (if applicable), whichever is later.
- To be eligible, you must not use drugs or alcohol, not be arrested for any drug-related offense, or drive a motor vehicle in this five-year period.
- If you were interested in applying for a hardship license and believe you meet the eligibility criteria, please contact your local Bureau of Administrative Review Office (see enclosed list) to schedule an appointment.
- Your local Bureau of Administrative Review Office will provide additional instructions once they have determined you meet the initial eligibility criteria.
- This order is filed in the official records of the Department of Highway Safety and Motor Vehicles (DHSMV).
- You may appeal this order within 30 days of the date of this order by filing a petition for a writ of certiorari described in Section 322.31, Florida Statutes.
Eligibility to Apply for a Hardship Driver’s License for a Fourth DUI
After five (5) years of not drinking or driving, the person becomes eligible to apply for a hardship driver’s license in the Administrative Reviews Office where the person lives.
To be eligible, the person must complete DUI School and all recommended treatments if referred. The person must also have a favorable recommendation from the Special Supervision Services Program to be eligible for a hardship license.
Once you are approved to reinstate and obtain a hardship license, the driver must present the approval to the driver’s license office to do the following:
- take the driver’s license examination;
- pay an administrative fee;
- pay a reinstatement fee;
- pay any license fee; and
- show proof of bodily injury liability insurance with appropriate limits.
The person must remain in the Special Supervision Services Program to retain the hardship license. Even if you manage to get a hardship license, the Department of Highway Safety and Motor Vehicles (DHSMV), under sections 322.271(5)(c) and 322.28(5), Florida Statutes (2015), can dismiss a person from the SSSP and the cancel the hardship license under certain circumstances.
Section 322.271 is entitled “Authority to modify revocation, cancellation, or suspension order.” Subsection (5) of the statute provides in part:
[A] person whose driving privilege has been permanently revoked because he or she has been convicted four or more times of violating s. 316.193 [addressing DUI offenses] or former s. 316.1931 may, upon the expiration of 5 years after the date of the last conviction … petition the department for reinstatement of his or her driving privilege.§ 322.271(5), Fla. Stat.
The Department may “reinstate” a “petitioner’s driver license” as explained in § 322.271(5)(b), Fla. Stat.
One of the reinstatement qualifications is that the “petitioner must be supervised by a DUI program licensed by the department ….” § 322.271(5)(b) 2., Fla. Stat. (2015). Supervision must include “evaluation, education, referral into treatment, and other activities required by the department. Id.
Section 322.271(5)(c) provides, “The petitioner must assume the reasonable costs of supervision. If the petitioner does not comply with the required supervision, the program shall report the failure to the department, and the department shall cancel such person’s driving privilege.
Section 322.28 is entitled “Period of suspension or revocation.” The first four subsections of the statute detail those circumstances in which the Department must either suspend or revoke an individual’s driver’s license.
Subsection (5) of the statute provides:
A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s. 322.2616 during judicial review of the departmental order that resulted in such suspension, and a suspension or revocation of a driving privilege may not be stayed upon an appeal of the conviction or order that resulted in the suspension or revocation. § 322.28(5), Fla. Stat. (2015). See State, Dept. of Highway Safety & Motor Vehicles v. Peacock, 185 So. 3d 632, 634 (Fla. 1st DCA 2016).
How To Obtain Hardship Driving Privileges After a Fourth DUI Conviction
Before you are even eligible to apply for a hardship hearing after a fourth DUI, you must appear at the Bureau of Administrative Review (BAR) office to show proof of the following:
- proof of completion of an approved DUI school;
- must serve five years of the revocation period;
- must not have driven or consumed any drugs or alcohol within five years prior to the hearing date;
- no drug arrests during five years prior to the hearing;
- must be accepted into and remain in SSSP for the remainder of the sanction period;
- installation of an ignition interlock device for five years; and
- must be restricted to Employment Purposes Only for at least one year before obtaining Business Purpose Only.
The best way to avoid these consequences is to avoid the 4th DUI conviction by getting the charges dropped or reduced to a non-DUI charge such as reckless driving.
Additional Resources
Florida Statute 316.193(2)(b)(3) – Read the statutory language in Florida’s DUI statute for any person who is convicted of a fourth or subsequent violation of DUI, regardless of when any prior conviction for a violation of this section occurred. The fourth DUI is classified as a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, with a minimum mandatory fine of at least $2,000. The statute does not impose any mandatory jail or prison sentence for a 4th DUI, although the prosecutor will typically ask for at least 30 days in jail.
Finding an Attorney for a 4th DUI in Hillsborough County, FL
Contact the DUI Defense Attorneys at Sammis Law Firm to discuss your arrest and prosecution for a 4th or 5th DUI in Tampa or Plant City in Hillsborough County, FL, or the surrounding counties.
At Sammis Law Firm, our attorneys provide free consultations on the phone, via remote conferencing (Zoom), or during a face-to-face consultation in the office.
We can help you understand the charges pending against you, ways to avoid the potential penalties imposed in those types of cases, and the most effective ways to fight for an outright dismissal of the charges.
Contact us to discuss the best ways to avoid a 4th DUI conviction, such as reducing the charges to reckless driving to avoid more severe penalties. Find out how we can help you fight to avoid a permanent revocation.
With offices in downtown Tampa in Hillsborough County and New Port Richey in Pasco County, we fight drunk driving cases throughout the greater Tampa Bay area. Call (813) 250-0500 to discuss your case.
This article was last updated on Friday, September 6, 2024.
