Part 1 - The Other DUI: Driving Under the Influence (of Ignorance)
Almost everybody knows the maxim: “ignorance of the law is no excuse” (meaning, one’s lack of awareness about a law will not save him or her from criminal liability should they violate it). And yet, my experience as a criminal defense lawyer in Miami has shown me that an overwhelming majority of people in South Florida are just that: ignorant of the law.
Of course, it should go without saying that nobody, not even lawyers with unparalleled legal literacy, are cognizant of every law. Such are the constraints that inhere in the human condition. But shouldn’t everybody have a basic understanding of those criminal laws that commonly intersect our lives? For the average Floridian, one law worth knowing about is the Driving Under the Influence law, or “DUI.”
I know what some of you are thinking: “Everything I need to know about DUI has been relayed to me through public service announcements and advertisements. You know, ‘Don’t drink and drive,’ ‘Drive sober or get pulled over,’ and ‘Over the limit, under arrest.’ What else is there to know about?” The short answer is: plenty. As one man of intellect far superior to mine has professed: “The greatest enemy of knowledge is not ignorance, it is the illusion of knowledge.” (Hint: Stephen Hawking). Don’t get me wrong, I am not advocating drinking-and-driving. My position is simply that strict adherence to the behavioral norms addressed in public service announcements, without further examination and edification, leave those who follow them with an incomplete understanding of Florida’s DUI laws and an illusion of knowledge on the subject.
With that being said, the purpose of this multi-part article is not to provide a comprehensive analysis of Florida’s DUI laws; rather, it is to elucidate those core principles that underlie it and explain their practical importance to any Floridian accused of DUI. Principles that are often outcome determinative in any criminal prosecution for DUI.
What follows are the areas of Florida’s DUI that are most commonly misunderstood—or worse, largely unknown until it’s too late. Driving under the influence of alcohol and/or controlled substances is harmful enough. Don’t complicate matters by also driving under the influence of ignorance. Trust me, your Miami DUI lawyer will thank you for it.
Today’s subject is:
Part 1: Drinking and Driving Is NOT a DUI (or a crime, for that matter)
This first principle calls for the ability to separate between what is advisable behavior and what is criminal. It goes without saying that driving a vehicle while drinking an alcoholic beverage is far from advisable behavior. But it’s not necessarily criminal either.
Put simply, Florida’s DUI law criminalizes a person driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages (and/or any chemical substance) to the extent that his or her normal faculties are impaired or his or her blood or breath-alcohol level exceeds 0.08 grams of alcohol per 100 milliliters of blood or 210 liters of breath, respectively. Fla. Stat. § 316.193. And while I’ll breakdown the meaning of this law and its terms in later sections, for right now it’s important to highlight that nowhere in that law does it mention the consumption of alcohol—either before or while driving.
Now before you get carried away thinking that there are no legal consequences for driving with a bottle of beer pressed against your lips, let me explain.
For starters, it is, in fact, against the law to have an open container of alcohol in or on a motor vehicle that is parked, stopped, or being driving on a road anywhere in this state, regardless of whether it is actually being consumed, immediately capable of being consumed, or the seal of which has only been broken. Fla. Stat. § 316.1936. It’s just not a DUI, nor is it criminal.
Violators of this “open container” law are guilty only of a “noncriminal moving traffic violation,” much like a speeding ticket. But keep in mind that if a police officer observes you drinking while driving, he or she is almost certainly going to have more than enough legal justification to, not just pull you over and write a traffic ticket, but initiate a criminal investigation into a potential DUI. If that investigation leads to an arrest for DUI, almost certainly proof of your drinking and driving will be admitted into evidence against you, which is not going to play well in front of a judge or jury. All the best DUI lawyers in Miami will agree with that.
So the short of it is: don’t drink and drive, but if you do, realize that it is not inherently criminal behavior, it’s a traffic ticket, not a DUI.
NOTE: Stay tuned for Part 2:You Don’t Have To Be Driving To Get a DUI (Yes, you read this right)
This article was authored by Miami DUI Lawyer Jordan Redavid, partner at Fischer Redavid PLLC. Its contents are not to be construed as legal advice, nor the formation of any attorney-client relationship. However, should you or someone you care about need the assistance of one of the “10 best” Miami DUI lawyers, call 305-938-9939 at any time for a FREE consultation.