Proposed House Bill HB 1145/Senate Bill SB 1396 (2020) attempt to establish parameters for a statewide DUI Diversion Program. As the bills stand, they create a hodgepodge of poorly designed, impractical, punitive, and sometimes optional, requirements.
While I think it’s a great idea in theory, most State Senators and State Representatives on the Criminal Justice Committees don’t practice criminal law and fail to recognize the pitfalls, nuances and practical implementation of DUI laws. Two notable exceptions are State Representatives Mike Grieco and Mike Gottleib, both with extensive criminal justice background and experience.
The proposed F.S. 316.19395 makes these programs optional throughout Florida DUI Diversion Programs, though they already exist in ten of Florida’s twenty judicial circuits, in one form or another. The requirements for participation vary from circuit to circuit and are established by each individual State Attorney’s Office and there are no uniform standards for participation.
For example, if a State Attorney’s Office elects to develop a program, the proposed statute requires the implementation of a checklist of requirements, some of which are merely punitive in nature and don’t go to the intent of the statute which is rehabilitation and treatment (smart justice). It will eliminate the flexibility currently available in places like Miami-Dade County’s Back on Track Diversion Program where I have successfully persuaded the State Attorney’s Office to make exceptions in cases of single car accidents (hitting a sidewalk or telephone pole). The Miami program allows participation in cases where the breath alcohol level is over a .20, but under .25.
Florida’s DUI Diversion Pilot Program requirements may include:
- participation in the program for 12 months
- while in 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, or
- 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 on all vehicles they own or use regularly
- install and use an ignition interlock device or SCRAM monitoring device
If a defendant successfully completes the program the State Attorney’s Office will reduce the DUI charge to reckless driving and the trial judge “shall” withhold adjudication for reckless driving. However, the proposed statute also makes a subsequent conviction for DUI a “second conviction” for sentencing purposes, despite a withhold of adjudication imposed on the reckless driving charge at sentencing. Failure to complete the program will result in the case returned to court for DUI prosecution. The bill also requires the Department of Highway Safety and Motor Vehicles to maintain a statewide database of participants in the pilot program by July 1, 2023.
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