Jacksonville Lawyer Ruth Ann Hepler discuss the penalties of a DUI charge in Florida on the radio show Advocate for Success.

Below is the transcribed dialog from Ruth Ann Hepler's Guest Spot on Advocate for Success, a local radio show.

This content can also be found in our Criminal FAQ section as video segments.

Florida DUI-

ANNOUNCER: Welcome to Advocate for Success with your host, Elizabeth Vardas.
MS. VARDAS: Good afternoon. Thank you for joining us this Sunday. I’m Elizabeth Vardas, your host for Advocate for Success, and just to give you a heads-up, this is a prerecorded show because I’m going to be on vacation. But we still wanted to give you a good show, and today I think it is going to be a really good show with a lot of information.
We hope to bring some really straight talk and straight information about the subject of DUI. I really felt compelled to do a show like this for the reasons that it is the end of the school year and there are a lot of seniors that have graduated out there, and they have gone out into the real world. The first thing they want to do, a lot of them, is to have fun and enjoy it and take a break, and that’s when things can possibly become a bad situation for some. Also, this is, you know, for the adults out there that need to think twice about possibly getting in the car after they’ve had a couple drinks.
Today we have in the studio attorney Ruth Ann Hepler, and she is with the law firm Sullivan and Hepler. Nice to see you again, Ruth Ann.

MS. HEPLER: Thanks. Nice to see you.
MS. VARDAS: She and her partner have written a book, and it’s called “The State of Florida v. You, The Accused’s Guide to Defending a Florida DUI Charge.” And this book is free; right?
MS. HEPLER: Yes, it is.
MS. VARDAS: So we’re going to be discussing her book and the ins and outs of what happens to somebody after they’ve been pulled over for being under the suspicion of drinking and driving. So we’re going to kind of run through, hit some main topics, and then we’ll come back and try to fill in the blanks.
We’re not taking any calls today obviously because, like I said, this is prerecorded. With that, we’re just going to start going on the road here.

First of all, I’d like, Ms. Hepler, if you can, to just talk about the -- let’s talk about the consequences of a DUI. Just start with that because a lot of people don’t realize the consequences fully, I don’t think. Go ahead and --

MS. HEPLER: Okay. A lot of people, I think, don’t realize that there’s minimum mandatory penalties in Florida for DUI, so no matter what the mitigation might be in your situation or the extenuating circumstances, it doesn’t matter. There is a minimum penalty even on a first arrest that the judge has to sentence you to if you are convicted, and of course the penalties get worse and worse for each subsequent DUI.
The penalties have gotten worse; even over the last 10 to 15 years they have increased. So if you are convicted of the DUI, first of all it’s a mandatory adjudication of guilt, so you do have a conviction on your record. The judge does not have the discretion to withhold adjudication, which a lot of people are familiar with that in Florida. In certain cases -- in most cases -- the judge does have the authority to withhold adjudication, which means technically it’s not a conviction, but the judge does not have that discretion in Florida -- I’m sorry -- in a DUI case. If you enter a plea or if a jury finds you guilty, then you’re automatically going to have an adjudication of guilt, and you cannot get that sealed or expunged from your record. It’s going to be on your record forever.
MS. VARDAS: It’s always going to be there.
MS. HEPLER: A lot of people say, “Well, doesn’t it go away after seven years?” I guess that’s one of those urban legends.
MS. VARDAS: It’s not a credit report.
MS. HEPLER: Right. Maybe it’s related to that or it is one of those urban legends that seems to stick around and not go away. It does not go away after seven years, so it’s always on your record and it’s always on your driving record. So you will be adjudicated guilty. You’ll have to serve at least six months of probation, and on the probation you’ll have to pay a fine. It used to be $250 for a first DUI, and now it’s gone up to $500 plus the court costs, which comes to a total --
MS. VARDAS: $1600?
MS. HEPLER: Well, that’s for everything altogether.
MS. VARDAS: Okay.
MS. HEPLER: The $500 plus the court costs now is a little over a thousand. So that’s just the fine and court costs. It’s gone up so it’s hard to keep track of all the math.
MS. VARDAS: There are some classes in there you have to take?
MS. HEPLER: Right. In addition to the fine and court costs, you’ll have to attend the DUI school, which will cost you about $231, something like that. You take that at the Northeast Florida Safety Council. You have to take that anyway in order to get your license reinstated after the DUI conviction, but it will be a condition of your probation. Your car is impounded for ten days, and the way that is normally handled is that you turn in your tag and your keys to your probation officer for ten days because you’re not supposed to be driving it. Your license will be suspended for six months, and you have to perform 50 hours of community service.
MS. VARDAS: And that’s just a start. Also, I put in there because I didn’t see anywhere that talks more about if you injure somebody. If you have an accident and you injure somebody, bodily injury or even killing somebody, so --
MS. HEPLER: Right. And I didn’t include any information about that in the book because it’s just so complicated, and there are so many “what-ifs.”
MS. VARDAS: But I think that is a good thing because it might scare some teenagers into thinking twice about it.
MS. HEPLER: Oh, definitely. But as far as the consequences, there are so many different factors and so many different parameters that I didn’t want to take up a lot of space. It’s kind of complicated to go into, but what you need to know is that if you are charged with hurting someone, if it’s a serious bodily injury -- which can be just a broken bone is a serious bodily injury -- then that’s a felony and you’re talking about much more serious consequences. You’re talking about prison time and if, heaven forbid, there is a death, then obviously you’re talking about prison time. Regardless of your license being suspended and all that, you’re talking about prison time and that sort of thing.
MS. VARDAS: Plus you’re going to have that on your conscience for the rest of your life.
MS. HEPLER: Right.
MS. VARDAS: That, to me, is a lot.
MS. HEPLER: So often in those kinds of cases, what you see in those kinds of cases is that it is the passenger -- it’s your buddy, your husband, your wife, your best friend, your roommate who’s with you who ends up getting killed, and that’s a horrible thing. Your child sometimes. So that is a really important thing to think about.
MS. VARDAS: Right. So as far as the consequences -- you’ve heard some of those -- obviously it gets a lot heavier than that if somebody gets killed or injured in that. So, you know, when I was reading through the books there are some things I thought of. What would I want to know if something like that happened to me? Everybody is guilty of -- well, I wouldn’t say everybody but some of us are -- and may or may not should have been driving, but the big thing on my mind was about the breathalyzer test. There have been so many discussions about it. And when you are just a lay person and you are not somebody like yourself, an attorney, they don’t really know. Let’s talk about that. Should people do it or should people not do it?
MS. HEPLER: That is probably the most common question that people have, and obviously I can’t give legal advice over the radio, and I can’t say in any one particular case what you should or should not do.
I guess what I would say is that it is kind of a common perception, I think, among a lot of people to say, “If you’re arrested, don’t take the test. Don’t take the test.”
I don’t necessarily agree with that, and there are a lot of different reasons based on strategy of the defense and all kinds of things that go into that, but I wouldn’t as a blanket statement say everybody should always refuse the test.
MS. VARDAS: Right. Right.
MS. HEPLER: Again, I can’t give legal advice in any particular case. You do -- I guess most people don’t realize when you get your driver’s license, your license is a privilege, not a right.
MS. VARDAS: Hold that thought because that’s something we really need to talk about, and that’s our sign that we’ve got to take our first break. I have to cut you off. We’ll be right back.

You’re listening to Advocate for Success on ABC 1320 WBOB and 103.7 Jax Beaches. We’ll be right back.
(Intermission)
MS. VARDAS: Welcome back. You’re listening to Advocate for Success. I’m Elizabeth Vardas, your host. Thank you for joining us this Sunday. It is a prerecorded show, so we won’t be taking any calls, but you can go to our guest’s -- their website is Sullivan and Hepler, and that is Sullivan and, the word and, Hepler, H-e-p-l-e-r, dot com, to obtain the book that attorney Ruth Ann Hepler and her partner, Michael Sullivan, wrote and it’s “The State of Florida v. You. The Accused’s Guide to Defending a Florida DUI Charge,” which is our subject matter for today.
We’re discussing what happens when somebody gets pulled over for suspicion of DUI. I say “suspicion” because who knows what’s going to happen in the end; right? So we’re just going through the process. This book is free, so I encourage all the fathers and mothers of teenagers, especially the ones who just graduated from high school, because this is the time of the year when you hear about these terrible accidents and car crashes, especially from the teenagers who graduated because they are out partying and having a good time. I encourage the parents to pick up a copy of this book. It’s free and it’s really valuable information that you can give to them.
We’ve been talking about -- first we were talking about the consequences of a DUI, the monetary costs as well as if you kill or injure somebody, it’s going to be on your conscience for the rest of your life or you also may even go to prison for a very long time. So it just depends on where you are in that process and what has happened.
Before we went to break -- if you are just tuning back in -- we were talking about whether or not someone should take the breathalyzer test, because that is like one of the main questions that everybody has, and it’s always the main topic of discussion when you talk about a DUI, whether you should take that test or not, so that’s what we were talking about if you want to go ahead and pick up on that, Ruth Ann.
MS. HEPLER: Okay. We were talking about when you get your license -- I guess people tend not really think about it in these terms, but when you get your driver’s licenses, it’s a privilege to have your driver’s license, not a right. The Department of Motor Vehicles gives you the license. You agree -- even though you may not realize it, but when you get your license, you agree to take an approved test if one is required. And if you look on your license on the tiny little print on the bottom, it will tell you that. So you do sort of impliedly agree to take the test when you get your license. But by the same token, when you’re in that situation and you’re asked to take the test, you actually can refuse. That refusal carries with it consequences --
MS. VARDAS. Right, right, right.
MS. HEPLER: So obviously the consequences for the first time, if you refuse to take the test, it’s is an automatic 12-month suspension of your license, which is a pretty steep consequence.
MS. VARDAS: Now, is that whether you are over the limit or not?
MS. HEPLER: Well, you are refusing, so there is no evidence of whether you are over the limit or not.
MS. VARDAS: Well, that’s true. I was thinking maybe they get the blood work or something.
MS. HEPLER: Well, that’s a whole other can of worms.
MS. VARDAS: Automatically, if you refuse --
MS. HEPLER: Automatically, if you refuse to take the test it’s an automatic one year suspension so, you know, even if you’re not guilty of DUI, if you refuse to take the test, you’re still going to be without your license for a year.
MS. VARDAS: Wow, that’s amazing.
MS. HEPLER: Now, if it’s your second time that they’ve asked you to take the test and you refuse again, it’s an automatic 18-month suspension, which is a long time, especially in a city like Jacksonville where you really need a car to get around. Also, now, the second time you refuse, if you’ve had a refusal before and you refuse again, it is actually a crime now. It’s a misdemeanor. So the State will charge you with the crime of refusal to take the breath test. So that’s something really serious that you need to think about.
And as I said before the break, there is so many different parameters and so many different “if this, what about that” kind of questions that come in in any particular case that it’s hard to give blanket advice should you take it or should you not take it.
MS. VARDAS: Well, I think that’s really good for parents after their kids have gone through driving school and everything and they go get that permit, that they show them that on the license, say, “This is what you agreed to.” Like you say it’s a privilege, not a right, so to show them too that you’re giving consent to if you get pulled over the suspicion of it, then you’re going to have to do it. So I think that’s a perfect time to sit down and talk to them more about drinking and driving at that point.
MS. HEPLER: It is. I think you’re right. That’s a very good time to bring that discussion up and show them that language at the bottom of your license, because when you go to the DMV to get your license, they don’t really point that out and show that to you.
MS. VARDAS: No. I don’t think they’re going to but -- they should, though.
MS. HEPLER: They should. You’re right.
MS. VARDAS: They should read it and say, “Okay. It says you are consenting to this. Do you understand that?”
MS. VARDAS: Because maybe some people may -- no, they’re not going to refuse to get a driver’s license, but still I think that is something that would be worthwhile pointing out.
MS. HEPLER: Right. It’s one of those really important things in the law that people commonly just don’t know, and you know the old phrase “Ignorance of the law is no excuse,” but still people should know when they get a driver’s license what they are signing up for.
MS. VARDAS: Right. Because, yeah, the laws change.
MS. HEPLER: Right. And actually when the whole new statute came about making it a crime to refuse for the second time, it kind of was a big issue. It has been long enough now. I can’t remember exactly what year it was. Time flies. It seems like it was a long time ago, but it really wasn’t. I can’t remember what year it was that they changed that, but when it first came about it was big issue because people who were asked to take the test a second time didn’t realize that it was a crime. And when they refused to take the test the first time, there was no law at that point, so they didn’t know that if it ever happened to them again in the future they were going to be charged with a crime.
And so it was kind of an unknown thing, and now it’s been around long enough that most people already know because of the time periods.
MS. VARDAS: Right, right.
MS. HEPLER: It’s definitely something to think twice about before you just say, “Oh, no, I’m not taking the test.”
MS. VARDAS: Right. If you don’t take the test, what happens after that? I mean, do they automatically arrest you under suspicion then?
MS. HEPLER: Well, that’s another thing that I think most people don’t realize. What the law says in Florida is that essentially you’re already under arrest for DUI before you’re even asked to take the breath test. The officer has to have probable cause to believe that you are under the influence, basically probable cause for DUI, before he can even ask you to take the breath test.
So what they do is they arrest you for DUI based on whatever happened up to that point: your driving pattern, your field sobriety test, whatever it might be. You’re already under arrest and then they ask you to take the breath test or a urine test in the right circumstances, or a blood test in the right circumstances.
MS. VARDAS: If you’re incoherent. They would probably do a blood test if you’re incoherent, I would imagine.
MS. HEPLER: Well, it’s not that simple. Nothing in the law is that simple.
MS. VARDAS: If you’re passed out, then they have to take you to the doctor or hospital?
MS. HEPLER: Well, actually that’s a really complicated area of the law that I tried not to get into too much in the book either just because it is so complicated --
MS. VARDAS: Okay. I’ll leave that up to you.
MS. HEPLER: -- and we’ve only got an hour here. But you are already under arrest at the time that you take the test, so if you do take the test, the thing that a lot of people don’t realize is that --most people know in Florida now the limit is .08, and so if you take the test and you blow below .08, you’re still under arrest for DUI because you’re already under arrest when you take the test. So the officer doesn’t “un-arrest” you because you blew under the limit. You’re still under arrest.
MS. VARDAS: And a lot of people don’t know that.
MS. HEPLER: A lot of people don’t realize that. So you’re still going to go to jail. You’re still going to have to post a bond.
MS. VARDAS: So don’t get all excited and try to bash the cop --
MS. HEPLER: No. Never do that.
MS. VARDAS: -- or yell at him or anything and say, “I told you I wasn’t.” You just go with the flow; right?
MS. HEPLER: There is a process, and that’s the most important thing there is to know. If you do blow under the limit, you definitely should not enter a plea of guilty or no contest. And a lot people do that, not really thinking it through, because they’re under a lot of stress and they’ve spent the night in jail and they just want to go home or maybe back to their job or their family or whatever.
MS. VARDAS: They want to get it over with.
MS. HEPLER: Right. They just want to get it over with, and they’re going to first-appearance court the next morning and enter a plea and then later realize, “Wait a minute. My blow was only .04. Why did I enter a plea?”
And then it is a lot more complicated. So if you blow under, you definitely should plead not guilty. I would say you should do that under any circumstances because you should talk to a lawyer before you enter a plea to a serious charge like this, but certainly if you’ve blown under the limit.
MS. VARDAS: At what point -- is it still true that everybody gets one phone call once they get thrown in jail?
MS. HEPLER: They’re supposed to and usually that does happen. I mean, I’ve certainly had lots of cases where people have said, “I wasn’t allowed to make a phone call.” But generally speaking they are, yeah.
MS. VARDAS: And that’s the time they need to get an attorney involved. If they get the attorney involved at that point, will they go with them when they have to make that plea of guilty or not guilty?
MS. HEPLER: If someone contacts us at the point after they’re arrested but before they go to first-appearance court, then we’ll definitely go to first-appearance court for them. A lot of times, though, that just doesn’t happen because of the time periods and the difficulty in reaching people and that sort of thing, and that’s fine. As long as you enter a plea of not guilty at the first appearance, then your attorney can go with you to the next court date, and that’s fine.
MS. VARDAS: So either way you should go ahead and just plead not guilty and let the attorney handle it because chances are everybody is going to get an attorney; right? Or do they get assigned an attorney if they can’t afford one? Right?
MS. HEPLER: Yes. Yes, right. So, yeah, you should definitely. So the best course of action is always to enter a plea of not guilty and talk to an attorney at least before you decide what you want to do. And you may decide you want to enter a plea of guilty or no contest and take your punishment, so to speak, but it’s always better.
MS. VARDAS: How many people do that?
MS. HEPLER: A lot of people do that.
MS. VARDAS: Unless they feel like they are, you know, but maybe they weren’t.
MS. HEPLER: Right. You should always talk to an attorney and let the attorney look at the legal aspects of the case before you make that decision and talk with you about what the consequences are and all those different things before, because it’s a serious decision that shouldn’t be made on the fly.
MS. VARDAS: Absolutely. Yeah. Don’t do it alone. Don’t do it alone.
MS. HEPLER: It’s not just a traffic ticket.
MS. VARDAS: Well, that’s our sign we’re going to have to take a hard break. If you just tuned in, you’re listening to Advocate for Success. I’m Elizabeth Vardas, your host, and you’re listening to ABC 1320 WBOB and 103.7 Jax Beach. We’ll be right back.

(Intermission)
ANNOUNCER: Welcome back to Advocate for Success with your host Elizabeth Vardas on ABC 1320 WBOB.
MS. VARDAS: Hello and welcome back. You’re listening to Advocate for Success. I’m Elizabeth Vardas, your host on this Sunday afternoon. Thank you for joining. This is a prerecorded show, so unfortunately we won’t be able to take any calls on this important subject today of DUI, driving under the influence.
My guest is attorney Ruth Ann Hepler. She has been a criminal defense attorney for 17-plus years. She and her partner, Mr. Michael Sullivan, have written a book called “The State of Florida v. You, The Accused’s Guide to Defending a Florida DUI Charge.” This book is absolutely free. We encourage parents to pick up a copy of this, and you can do that by going to their website at Sullivan and Hepler. That’s Sullivan, a-n-d, and Hepler, H-e-p-l-e-r, dot com to pick up your free copy of this important book that discusses all about what happens to somebody going through the process after they’ve been charged -- is it charged -- charged with DUI; right? You’re the attorney.
MS. HEPLER: Right. Arrested for, charged. That’s fine.
MS. VARDAS: I know there’s differences in whether you’re convicted or not convicted or whatever. That’s what we’ve been discussing for this first half hour. And before we went to the break we were talking about going to your first appearance, which happens usually within 24 hours, would you say?
MS. HEPLER: Right.
MS. VARDAS: Okay. And at that first appearance -- hopefully, before then you have contacted an attorney.
MS. HEPLER: Right.
MS. VARDAS: We hope so.
MS. HEPLER: But if you haven’t, it’s not hopeless.
MS. VARDAS: They’re not going to throw away the key.
MS. HEPLER: Don’t panic. Right. They’re not going to throw away the key.
MS. VARDAS: Don’t panic; right?
MS. HEPLER: Right. The important thing, like we were saying, is to go ahead and enter a plea of not guilty even if your attorney is not there, and then consult with an attorney before you decide what you want to do and what you should do. A lot of people tend to think, “If I’m entering a plea of not guilty, what if I’m guilty? I can’t say I’m not guilty.”
MS. VARDAS: “Then I’d be lying.”
MS. HEPLER: That applies to all crimes. That’s one of my big pet peeves when I hear, you know, big cases on the news and the newscaster will say, “Mr. Smith entered a plea of not guilty to the murder charge.” And it’s so silly because it’s not a moral statement of whether you did it or not. It’s legal terminology. It means I’m preserving my right to fight the case. That’s all it means.
MS. VARDAS: Right. You’re slowing things down to be able to gather all the facts and the evidence to be able to have your attorney handle it.
MS. HEPLER: Right. So no matter what happened in your case, it’s always best to have an attorney look at it, you know, analyze the evidence, determine if there are any ways that you might be able to, you know, fight the charge, and explain the consequences to you, the minimum penalties, the maximum penalties.
MS. VARDAS: And that’s all in your book pretty much?
MS. HEPLER: And that’s in the book. And, you know, talk about do you have any prior DUIs, do you have any in another state that would still count against you and all of those kinds of things that you might not think about that an attorney is trained to think about. It’s just better safe than sorry because it is a really serious crime.
MS. VARDAS: Sure. That’s interesting. If you did get one in another state, I guess that carries around with you too; right?
MS. HEPLER: It does. It’s basically the same as if you had gotten it in Florida. And DUI is pretty standard around the country now as far as what constitutes the crime and that sort of thing.
MS. VARDAS: It’s that baggage that goes with you.
MS. HEPLER: Right. So as long as it’s the same crime in another state, it counts against you just as if it was -- just as if it had happened in Florida, so there are so many different things that you’ve got to consider.
MS. VARDAS: Sure. Something we haven’t touched on yet, but let’s do that now -- I guess it would be a good time -- is the Department of Motor Vehicle’s hearing.
MS. HEPLER: Yes.
MS. VARDAS: Go ahead and talk about that, because it’s real important.
MS. HEPLER: You have the right -- well, I guess before we talk about that, I guess we need to backtrack a little bit because when we were talking about whether to take the test or not take the test --
MS. VARDAS: And the suspension.
MS. HEPLER: The suspension and all that. What we didn’t say, I guess, is that if you do take the test and you blow over the limit, .08 or more, then your license will be automatically suspended by the Department of Motor Vehicles. They call that an administrative suspension for six months on a first DUI. So whether you’re guilty of the DUI or not, you could blow over the limit, the Department of Motor Vehicles automatically administratively suspends your license. You could challenge the case. You could go to a jury trial. The jury could find you not guilty, but your license was still suspended for six months administratively by the department because you blew over the limit.
MS. VARDAS: Okay. All right.
MS. HEPLER: But you do have a right to challenge that automatic administrative suspension. So you can go to a hearing. Your lawyer can go to a hearing for you where there is a hearing officer. It’s not a judge. It’s an administrative hearing, so it’s a hearing officer employed by the Department of Motor Vehicles. And you can challenge the legality of the suspension, for example, if there was no probable cause for you to be pulled over to begin with, or if you refused to take the test and you want to challenge the refusal.
It may be in a situation where -- you know -- I’ve had a myriad of different situations over the years. Maybe the person tried to blow into the machine, but they were sick and they had asthma or something like that and they couldn’t blow hard enough to make it register, and then they put you down for a refusal because they say, “Well, you weren’t trying hard enough.” Well, you can go to an administrative hearing and say, “I tried to take the test, but I couldn’t take it. It just didn’t register,” and try to convince the department to undo that suspension.
And like I said, there are a million different ways that you might be able to challenge the suspension. Now, in the majority of cases, honestly, the suspension is going to be upheld, but there are certain situations where the suspension is reversed. And the other reason to do it is because it gives your lawyer sort of a preview of the case that they wouldn’t otherwise get because you can subpoena the officers to appear at the hearing, and the officers will testify about why they pulled the person over and what happened.
MS. VARDAS: So you can kind of get a heads-up on what evidence that they have or what facts they have.
MS. HEPLER: Exactly, which you wouldn’t be able to do otherwise. And in Florida on a misdemeanor in a DUI case, the defense attorney -- unless there is good cause, which would be an unusual situation -- ordinarily you’re not entitled to take depositions, which means bringing the officer in and having the officer testify under oath and answer your questions about what happened. You’re not allowed to do that under normal circumstances. So by having an administrative hearing you get an opportunity to sort of do that ahead of time, and it can give you a good idea of the evidence and ways that you might challenge it and that sort of thing.
MS. VAR