Tourists from around the world love to visit South Beach for its weather, its beaches and its nightlife. Unfortunately, one of the prices South Floridians have to pay as a result of this nightlife is having intoxicated drivers who are under the influence of alcohol and other dangerous toxic substances on their roads.
The Florida Legislature has responded to this dangerous threat by criminally punishing those driving while intoxicated. This Legislation has facilitated the recovery of punitive damages by Miami personal injury lawyers in cases where their client was struck and either injured or killed by a drunk driver. The recovery of punitive damages is sought in addition to compensatory damages, i.e., those for pain, suffering, disability, disfigurement, loss of a bodily function, death, medical bills and lost wages, both in the past and to be incurred in the future…
Florida DUI Law
The Florida Legislature has regulated the practice of driving under the influence (or DUI) under Chapters 316 and 322 of the Florida Statutes. Chapter 316 deals with the criminal penalties for DUI while Chapter 322 deals with driver license restrictions resulting for a person who is convicted or who pleads guilty to DUI. For purposes of our discussion, we will focus solely on the criminal penalties relating to driving under the influence.
Under Florida Statute §316.193(1) a person is “guilty of the offense of driving under the influence” if the alcohol content of the person’s blood is over 0.08 grams of alcohol per 100 milliliters of blood F.S.§316.193(1)(b); or the alcohol content of the person’s breath is above 0.08 grams of alcohol per 210 liters of breath F.S.§316.193(1)(c). Moreover, the Statute further states that a person who is driving under the influence is strictly liable for the bodily injuries and/or deaths that person causes. Florida Statutes §316.193(3). In practice, what does this mean for someone who is DUI?
If a drunk driver injures or causes the death of a person in Florida while he/she is DUI, that driver will be criminally liable if the alcohol level in the driver’s blood or breath was in excess of the 0.08 gram threshold. Negligence of the driver is not a requirement under the statute. State v. Hubbard, 751 So.2d 552 (Fla., 1999). Establishing that the driver had in excess of 0.08 grams of alcohol is not always a simple task for the state attorney, as test validity must be proven beyond a reasonable doubt. Most often some type of test would have been administrated by the officer who was called to the scene of the accident or by hospital personal if the alleged subject is transported to a hospital.
Florida Statute §316.1932 specifically states that operators of vehicles in the State of Florida are “deemed to have given his or her consent to submit to an approved chemical test or physical test.” The statute further states that if a law enforcement officer “has reasonable cause to believe” that the operator of a motor vehicle “was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages,” that officer can administer any chemically approved test on the driver of the vehicle to determine the alcohol level of the driver. As a result, tests are routinely administered by officers called to the scene of an accident when there is a suspicion that the driver was DUI. If the alcohol level surpasses the 0.08 threshold, the driver is charged under the criminal statute. A battery or manslaughter DUI conviction will also open the door for the personal injury lawyer to recover punitive damages for his/her client. Although the recovery of punitive damages is facilitated when a person is struck by a drunk driver, such damages are more difficult to obtain when a person is struck by a driver under the influence of other more dangerous toxic substances such as cocaine. It should be noted that insurance does not pay for punitive damages, and unless the person at-fault has personal assets, it may be difficult to recover punitive danages.
Driving Under the Influence of Cocaine
If a motor vehicle accident is caused by a driver under the influence of cocaine in Florida, the state attorney will have to establish that the cocaine affected the driver to the extent that his/her normal faculties were impaired. The State cannot simply rely on a test that would show that the amount of substance in the person’s blood or breath exceeded 0.08 grams. Sabree v. State, 978 So.2d 840 (Fla. App., 2008). Establishing that a driver’s faculties were impaired is a more difficult and costly task than simply relying on a breath test. The prosecutor will have to hire an expert to testify that the amount of toxic substance in the driver’s system actually impaired his/her normal faculties. This expert may be countered by an expert for the defense making it more difficult to convict drivers under the influence of narcotics. Videos of roadside testing often helps in these circumstances. Without a criminal DUI conviction, a personal injury lawyer may not be able to recover punitive damages when a driver was under the influence of these lethal drugs.
A driver under the influence of cocaine is much more dangerous than a driver under the influence of alcohol. The Florida Legislature should have made it easier to punish the drivers under the influence of these narcotics and not more difficult. It is imperative that the Legislature amend F.S. §316.193 to facilitate convictions for driving under the influence of cocaine and other lethal drugs to insure that Florida roads are safe. If you agree, please contact your State Representatives and State Senators and let them know how you feel.
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