Florida’s DUI Diversion Pilot Program

In 2018, Florida had 43,725 criminal violations for DUI. Although that number has steadily declined over the years, it is still a huge number of cases prosecuted in county court.

As a way to discourage recidivism in DUI cases, make the system more fair for those arrested, and to protect the public, the Florida Legislature is considering creating a state-wide statutory diversion program for DUI cases.

The goal of protecting the public is best accomplished by discouraging drunk driving through enhanced sanctions and reducing the re-arrest rates for alcohol-impaired driving. Most importantly, the diversion programs allow the prosecutor to focus on the most serious cases in the system instead of using up all of their resources on first-time offenders.

As a criminal defense attorney focused on DUI defense in Tampa, FL, and the greater Tampa Bay area, I think this program would work well. As it stands now, people who can afford to hire a good attorney to fight the DUI charge often see their DUI charge reduced to reckless driving with a withhold of adjudication. Whether the case is reduced has less to do with the merits of the case and more to do with:

  • the skill of the criminal defense attorney;
  • how motivated the prosecutor is to try the case; and
  • the views of the judge when it comes to accepting the negotiated plea.

Diversion programs help level the playing field by giving everyone the same opportunity to avoid a DUI conviction in exchange for completing enhanced sanctions.

What is Senate Bill 1396?

Senate Bill 1396 was introduced by Senator David H. Simmons, a Republican, on February 3, 2020. Since 2010, Senator Simmons has represented parts of the greater Orlando area. An identical bill in the house, House Bill 1145, was sponsored by Rep. Thad Altman, a Republican, representing parts of the Melbourne area in central Brevard County.

If passed into law, SB 1396 / HB 1145 would create a “Driving Under the Influence (DUI) Diversion Pilot Program” under s. 316.19395, F.S. The legislation would require the State Attorney’s Office in each judicial circuit to create the pilot program in their jurisdiction.

The purpose of the pilot program is to offer a person with a first offense of driving under the influence (DUI), an opportunity to avoid a criminal history record associated with a DUI, while ensuring the person receives substance abuse treatment and completes enhanced sanctions.

In essence, 2020 S.B. 1396 / H.B. 1145 would create exceptions to many of the requirements of Florida’s current DUI statute found at s. 316.193, F.S. (although judges and prosecutors already have ways around those requirements throughout the plea bargaining process).

The proposed legislation also sets out eligibility requirements for participation in the pilot program and the requirements for successful completion. Successful completion of the pilot program results in a plea offer for the offense of reckless driving. Under the requirements of the pilot program, if the person accepts the offer, the court must withhold adjudication.

The proposed legislation also creates a number of reporting requirements for the state attorney from each judicial circuit. The State Attorney’s Office in each jurisdiction would be required to report on an annual basis the results of the pilot program.

The bill would also require the Department of Highway Safety and Motor Vehicles (DHSMV) to maintain a statewide database of participants of the pilot program by July 1, 2023.

If the bill becomes law then it would take effect on July 1, 2020.

What’s the Difference Between SB 1396 and RIDR?

The eligibility requirements and enhanced sanctions under the proposed s. 316.19395, F.S., are nearly identical to the eligibility requirements and enhanced sanctions in the DUI diversion program in Hillsborough County called “RIDR”.

Hillsborough County’s newly elected State Attorney, Andrew Warren, enacted the RIDR program effective on March 1, 2018. For RIDR, the person completes some of the special conditions before entering the plea to reckless and then the rest of the conditions are completed while on probation.

If a person is diligent about starting the conditions immediately, then the person is ready to enter RIDR within 60 days after the arrest for DUI. At the 60 day point, the person is sentenced to 12 months probation on a reckless driving with a withhold of adjudication and required to complete the rest of the terms while on probation. Most people qualify for early termination, usually after six (6) months of being on probation.

Under RIDR, if the person completes the pre-plea sanctions but then fails to complete the other sanctions while on probation (or violates probation for any other reason), the court has the option of imposing the statutory maximum jail time of 90 days and adjudicating the person guilty of reckless driving, but there is no possibility of a DUI conviction.

For the DUI Diversion Pilot Program outlined in SB 1396/HB 1145, however, it looks like a person has to complete all of the conditions before entering the plea to reckless driving. Then if the person fails to complete the DUI diversion pilot program, the prosecutor gets a chance to prosecute the person for DUI.

Other than that, I don’t see a lot of differences between the DUI Diversion Pilot Program in SB 1396 and Hillsborough County’s RIDR program.

What are the Benefits of Diversion Programs?

In many jurisdictions in Florida, the State Attorney’s Office has already created different types of pre-trial diversion programs for all kinds of misdemeanor and third-degree felony offenses. The general purpose of a diversion program is to divert individuals charged with crimes away from the traditional requirements within the criminal justice system.

Although a few diversion programs were developed through statute, most were independently created by the State Attorney’s Office in different jurisdictions in Florida. Each program varies in its eligibility requirements and sanctions. Three diversion programs created by statute include:

  • the pretrial intervention program under Section 948.08
    • allows a first offender with the consent of the victim, prosecutor, and judge to enter a program and have the charges dropped for certain types of misdemeanors or third-degree felony charges
  • the state attorney bad check diversion program under Section 832.08
    • allows the state attorney to divert a defendant away from prosecution after issuing a bad check in order to avoid prosecution
  • the prison diversion program under Section 921.00241
    • allows the court to divert a defendant away from prison by sentencing the defendant to a nonstate prison sanction if the defendant meets certain criteria

Florida’s Current Patchwork Approach to DUI Diversion

For DUI cases, several State Attorney’s Offices have created a patchwork of diversion programs for DUI cases. The following counties each have some form of diversion for DUI cases including:

  • DeSoto County
  • Hillsborough County
  • Manatee County
  • Miami-Dade County
  • Orange County
  • Palm Beach County
  • Sarasota County

Critics complain that the different diversion programs have no uniform standards. For example, the DUI Offender Program in Palm Beach County allows eligible participants to complete program requirements within two months in order to obtain a plea offer to reckless driving. The requirements of the DUI diversion program in Palm Beach include:

  • community service;
  • successful completion of DUI School;
  • successful completion of the Victim Impact Panel; and
  • installation of the Ignition Interlock alcohol monitoring device.

Florida’s Current DUI Laws

Florida law currently sets out the crime of Driving Under the Influence in 316.193, F.S. To be guilty of DUI, a person must either drive or be in actual physical control of a vehicle while:

  • under the influence of alcoholic beverages, any controlled substance or any substance controlled to the extent that the person’s normal faculties are impaired; or
  • having a blood or breath alcohol level of 0.08 or more.

The penalties for a DUI depend on a host of factors including:

  • the number of prior convictions;
  • the length of time that passed since the last conviction;
  • whether the defendant’s blood or breath alcohol level was .15 or above;
  • whether a child passenger was in the vehicle at the time of the offense; or
  • whether a crash occurred.

For a first time DUI offense with no crash, no child passenger, no priors, and no BAC level  of .15 or above, the penalties include:

  • 12 months probation (with the possibility of early termination when all conditions are completed);
  • a fine of not less than $500 or more than $1,000 plus court costs and fees;
  • up to 6 months in jail;
  • a mandatory 50 hours of community service;
  • a mandatory ten-day vehicle impoundment;
  • completion of DUI school;
  • completion of substance abuse treatment, if required after the evaluation.

Under Section 316.656, F.S., the court is prohibited from withholding adjudication of guilt after any plea to DUI. Instead, the court must adjudicate the person guilty of DUI. Prosecutors and the courts routinely get around that provision by reducing the DUI charge to reckless driving which then allows the court to withhold adjudication.

Many DUI cases are reduced to reckless driving because of the terrible consequences that come with a conviction including the inability to ever seal or expunge the record. In fact, the conviction makes it impossible for the person to ever obtain a court-ordered seal or expunge of any criminal history record.

Special rules apply under Section 316.656, F.S., which prohibits the court from accepting a plea of guilty to a lesser offense from a person with a BAC level of .15 or more. Prosecutors and judges routinely get around that provision by signing a stipulation that the BAC was actually lower than .15 and then reducing the charge to a simple DUI or even reckless driving.

In most first DUI cases that result in a conviction, the judge never orders the defendant to install an Ignition Interlock Device (IID) because it is not required by statute. Instead, Florida’s DUI statute gives the judge the discretion to order the IID for up to 6 months.

Eligibility for the DUI Diversion Pilot Program

Under SB 1396, a person would be ineligible for the DUI diversion program if:

  • there was a prior alcohol-related or drug-related criminal traffic offense regardless of disposition;
  • there was a prior or pending felony conviction;
  • there were more than two prior misdemeanor convictions;
  • the offense resulted in a motor vehicle crash or accident relating to the charge of DUI;
  • a child passenger was in the vehicle at the time of the offense;
  • the BAC level was .20 or above; or
  • the defendant previously participated in the pilot program.

Requirements of the DUI Diversion Pilot Program

The requirements of Florida’s DUI Diversion Pilot Program under SB 1396 would include:

  • participate in the program for 12 months
  • during the program, the defendant must not possess or consume alcohol, illegal drugs, or prescription drugs not prescribed for him or her
  • complete DUI school and any required follow up treatment
  • complete fifty (50) hours of community service if the BAC is below .15
  • complete seventy-five (75) hours of community service for:
    • a refusal to submit to chemical testing
    • if the defendant had a BAC of .15 but less than .20
  • complete a victim’s impact panel (VIP) session
  • pay fines and court costs
  • a 10-day vehicle impoundment or immobilization
  • install and use an ignition interlock device for a period of:
    • three months if the person had a BAC level below .15
    • six months if the person:
      • had a BAC of 0.15 but less than .20; or
      • refused to submit to chemical testing.

Benefits of Completing the DUI Diversion Pilot Program

Under SB 1396, the benefits of completing the DUI Diversion Program successfully is being “offered an agreement providing for a plea of guilty to the offense of reckless driving as provided in s. 316.192. If the person accepts the plea agreement, the trial judge “shall” withhold adjudication for reckless driving.

But if the person fails to successfully complete the DUI Diversion pilot program, then the state attorney may discharge the person from the pilot program and pursue prosecution for the offense of DUI.

So what do you think about the bill proposing the creation of section 316.19395 of the Florida Statutes?

4 Comments

  1. Anonymous
    Posted February 5, 2020 at 06:14 | Permalink | Reply

    What about the people that never had this chance of a diversion program. Why not limit the amount of years a DUI stays on a persons record? Why are you DUI lawyers not fighting the life time driver license suspension that should only be used in some rare cases. The life time hardship program is double jepordy the offender pays again for that past DUI.

    • Posted February 5, 2020 at 08:30 | Permalink | Reply

      That is a good point. Today, people have more ways to avoid a DUI conviction because they are warned of the harsh penalties that come with being adjudicated guilty. For these DUI convictions from 20 years ago, none of these harsh penalties were even contemplated, so more people entered pleas. DUI is the only type of charge that follows a person for 75 years. Most other offenses only stay on the driving records for 3 or 7 years. I see the problem with the fourth DUI triggering the lifetime revocation of driving privileges, I just don’t know how that gets fixed unless a bill is introduced in the Florida Legislature. Have you drafted the bill? If so, post it here.

  2. Posted February 5, 2020 at 10:09 | Permalink | Reply

    My first duo was reduced to reckless driving back in 1978 and is on record as a dui conviction. This has caused me to have on record 4 DUI’s and permanently revoked my driver’s license.

  3. Posted February 10, 2020 at 09:40 | Permalink | Reply

    Great article by Sammis and Sammis, again. As to why a person has to carry a DUI record around forever – that has to do with the statutory penalty requirements. Specifically, when a person is found guilty of DUI, he/she must be adjudicated guilty (convicted). That conviction prevents all DUIs from being sealed and thus remains a public record, essentially, forever.
    If you go through diversion and have the charges dropped or amended to an offense that can receive a withhold of adjudication (found guilty but not convicted) then you can either expunge or seal the record, respectively.

Post a Comment

%d bloggers like this: