Often, we get calls from parents telling us their child has been charged with a .02 DUI. Recently on the legal question and answer site AVVO a user posted a question stating that they had been stopped for speeding, given a breath test in which they blew a .03 and were cited for DUI without being arrested. Several local attorneys claiming to be DUI experts or specialists jumped in to answer the question and told the person they needed an attorney because they were facing a DUI charge which is a criminal offense.
Florida does of course have a criminal charge for DUI. Like most other states, Florida also has a much stricter standard for those who are under the age of 21 who consume alcohol and drive.
In Florida it is illegal to drive while your normal faculties are impaired by alcohol. If your breath test is over .08 it is presumed that your normal faculties are impaired. However, for those under 21 having a test result of .02 or higher can lead to serious civil consequences even though they have committed no crime.
To be clear, a .02 violation pronounced (oh-two violation) is not a crime. If you were not arrested, you almost certainly have not been charged with the crime of DUI. If you are given the breath test prior to arrest in Florida, given a notice or citation and allowed to leave, that is another indicator you are not charged with a crime. Arrest is mandatory if you are charged with DUI. Further, for the criminal charge of DUI a breath test may only be given subsequent to arrest. However, an officer who has stopped an under aged motorist, who has reason to believe they have consumed alcohol, may give a roadside breath test with any alcohol sensing device found on the US Department of Transportations Conforming Products List, even one not approved for use in the State of Florida. The result is only admissible in a civil hearing and cannot be used as evidence in a courtroom to pursue criminal charges.
Those cited with a .02 violation face a driver’s license suspension. The .02 violation can become a permanent part of their driving history. If the driver decides to take the test, their driving privilege can be suspended for 6 months for a breath test over .02. If the driver refuses, the suspension can be either 12 or 18 months depending on whether they have previously refused a test.
In either event (blow or refusal) the driver facing a .02 violation has a right to a hearing to determine whether the suspension should be upheld or invalidated. It is very important to have competent legal counsel at this hearing. These “Formal Review Hearings” are administrative hearings, requiring knowledge of the administrative code and of criminal law and procedure. In many cases it is possible to have the suspension set aside, which also removes the suspension from your driving record.
You should contact a knowledgeable DUI defense attorney to handle your .02 violation. A knowledgeable attorney who focuses his practice on DUI defense and related issues should know the difference between an .02 violation and a DUI and should be able to advise you accordingly.
The DUI Attorneys at Katz & Phillips, P.A. are available to discuss your matter and any questions you may have. We have offices in Orlando, Longwood, Tavares, and Gainesville to serve you. We can be reached toll-free 866-464-0782.
There should be federal legislation put in place so that there can be no confusion about the rules – especially when we are talking about traffic and DUI offences which are the most common of the criminal offences.
Don’t you think .02 is a little crazy