Prior Convictions for DUI

Florida has adopted an escalating schedule of mandatory fines, incarceration, and driver’s license revocation periods depending on whether the DUI conviction is the first, second, third, fourth, or subsequent offense and the timing of the convictions.

So the question becomes – what counts as a prior DUI for the court or DHSMV consequences?

The court must adjudicate and sentence the person convicted immediately upon acceptance of a plea or after a jury verdict of guilty. In other words, under Florida Statute Section 316.656, the court is not permitted to withhold adjudication (often called “the conviction”).

A prior DUI conviction in Florida is usually known by the prosecutor because it shows up on the person’s Florida driving record. Even when the prior DUI-related conviction is not on the driving record, the prosecutor might find it on the NCIC/FCIC background check.

If the prosecutor does not find it, the defense is now required to tell the judge about it. Rule 6.180, Fla R. Traffic Court, provides that the defendant can remain silent as to priors.

The prosecutor will typically file an “information” alleging the prior offense. The prosecutor will also provide the judgments and fingerprints of that conviction in discovery.

Even if the prosecutor and court do not know about any prior DUI conviction at the time of the plea, the DHSMV might still treat it as a second within five, a third within 10, or a fourth-lifetime offense if those prior convictions eventually get added to the Florida driving record.

Why would the old DUI convictions eventually be added to the Florida driving record? When a person enrolls in DUI school, they must answer certain questions and disclose certain records.

As a result, those missing DUI convictions might be reported to the DHSMV, which will add it to the driving record and trigger the appropriate 6-month, five-year, ten-year, or lifetime suspension/revocation of the driver’s license.

So, the DHSMV can specify a period of revocation longer than that specified by the court based on the number of convictions that might later show up on the driving record, even if the minimum required revocation is not imposed by the court.

Attorney for a DUI with a Prior Conviction in Tampa, FL

The question discussed in this article is whether a prior DUI from out-of-state will be used against you to enhance the penalty in court or the suspension/revocation imposed by the DHSMV.

In a small majority of cases, the prior out-of-state conviction will not show up on the Florida driving record, including a prior:

If you were arrested for driving under the influence in Tampa or Hillsborough County, FL, then contact an experienced DUI defense attorney at the Sammis Law Firm to discuss your case.

We can help you understand how the prior DUI might impact your current case. Let us put our experience to work for you.

Call (813) 250-0500 today.

What if My Prior Conviction Doesn’t Show Up?

If it does not show up on the driving record, there is a chance that the prosecutor does not try to enhance the penalty. In other words, the prior out-of-state conviction will not count against you.

Nevertheless, if the prior conviction ever pops up on the person’s Florida driving record, then the DHSMV will take immediate action to impose a longer period of revocation than that imposed by the judge.

Even a prior boating under the influence (BUI) conviction will count as a prior conviction for purposes of enhancing the jail and fines but not for purposes of enhancing a driver’s license suspension. See Florida Statute Section 316.193(6)(k); 316.193(6)(b) and (c).

What Happens if the Court Fails to Revoke?

Furthermore, if the court fails to revoke the driver’s license at sentencing, Florida Statute Section 322.28(2)(b) might come into play. Florida Statute Section 322.28(2)(b) provides:

(b) If the period of revocation was not specified by the court at the time of imposing sentencing or within 30 days thereafter, and it is not otherwise specified by law, the department shall forthwith revoke the driver’s license or driving privilege for the maximum period applicable under paragraph (a) for a first conviction and for the minimum period applicable under paragraph (a) for any subsequent convictions.

The driver may, within 30 days after such revocation by the department, petition the court for further hearing on the period of revocation within the limits specified in paragraph (a).

What Rules Apply to Prior Convictions for DUI in Florida?

The rules that apply to a prior DUI conviction in Florida include:

  • If asked, the defendant has the right to remain silent concerning any prior DUI convictions. Fla. R. Traf. Ct. 6180(a) and (b).
  • Under Florida Statute Section 316.193(6)(k), any out-of-state conviction for driving under the influence (DUI), driving while intoxicated (DWI), driving while unlawful blood alcohol level (DUBAL), or any similar alcohol-related or drug-related traffic offense can count as a prior conviction with required minimum and maximum enhancements.
  • A prior misdemeanor conviction can be considered even while on appeal as a prior.
  • Statute Section 316.193(12) provides that records of the DHSMV are sufficient “by itself” to establish the prior DUI convictions. The person accused, however, can contradict or rebut that presumption with other evidence. This presumption “may be considered along with any other evidence presented in deciding whether the defendant has been previously convicted of the offense of driving under the influence.”

If you have questions about a second, third, fourth, or subsequent DUI, call the DUI attorneys at the Sammis Law Firm to discuss your case.

Call (813) 250-0500.

This article was last updated on Friday, July 29, 2022.