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What Is DUI in Florida? Legal Definition Explained (2026)
Rewrite/update date: November 3, 2026. Originally published in February 2026.
DUI in Florida means driving or being in actual physical control of a vehicle while impaired by alcohol, a controlled substance, or a listed chemical to the extent that your normal faculties are impaired, or while your blood- or breath-alcohol level is 0.08 or higher, under section 316.193, Florida Statutes. The State can prove the charge with impairment evidence alone, with a test result alone, or with both. A first DUI is a misdemeanor, and a third DUI within 10 years, a fourth DUI at any time, and a DUI that causes serious bodily injury are third-degree felonies.
Most Florida DUI cases turn on two questions: was the person in control of the vehicle, and can the State prove impairment with evidence that holds up in court. I taught officers at the police academy before I spent more than 25 years in Hillsborough County courtrooms, and I am a member of the National College for DUI Defense. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I built our DUI practice around those two questions, and our attorneys test the stop, the impairment evidence, and the breath or blood result in every case.
What is the legal definition of DUI in Florida?
Florida defines DUI in section 316.193, Florida Statutes. A person commits DUI by driving or being in actual physical control of a vehicle in Florida while one of three conditions is true. The statute gives the State three separate theories, and prosecutors in Hillsborough County often charge more than one in the same case.
| Theory | What the State must prove | Statute |
|---|---|---|
| Impairment | The person was under the influence of alcohol, a controlled substance under chapter 893, or a chemical listed in section 877.111, to the extent that normal faculties were impaired | Section 316.193(1)(a) |
| Blood-alcohol level | A blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood | Section 316.193(1)(b) |
| Breath-alcohol level | A breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath | Section 316.193(1)(c) |
The impairment theory needs no test number at all. The two alcohol-level theories need a valid test, and our attorneys at The Brancato Law Firm examine how and when that test was taken, because a number obtained the wrong way can be kept from the jury.
What does “normal faculties” mean in a Florida DUI case?
Normal faculties are the everyday abilities a sober person uses to drive. Section 316.1934, Florida Statutes, says they include “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies,” and to perform the many mental and physical acts of daily life. Officers try to show impairment through driving pattern, speech, balance, and field sobriety exercises, and our firm compares each claim in the report against the body camera video.
The same statute sets presumptions that apply when the State has an alcohol test result:
| Alcohol level at the time of driving | What the law presumes |
|---|---|
| 0.05 or less | The person is presumed not to have been impaired by alcohol |
| More than 0.05 but less than 0.08 | No presumption either way; the jury may consider the number with other evidence |
| 0.08 or higher | Prima facie evidence that the person was impaired by alcohol |
A result between 0.05 and 0.08 does not end a case for either side. The State can still try to prove impairment with the officer’s observations, and The Brancato Law Firm can use the same number to show the driver was close to the line the presumption draws.
Can you get a DUI in Florida if you were not driving?
Yes. Florida’s DUI law covers anyone in “actual physical control” of a vehicle, so a person sitting behind the wheel of a parked car can be charged. The standard jury instruction defines it this way: the person must be physically in or on the vehicle and have the capability to operate it, whether or not the person is actually operating it at the time.
The Second District Court of Appeal, which hears appeals from Hillsborough, Pinellas, and Pasco County courts, applied that definition in State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011). An officer in Largo, in Pinellas County, found a car stopped in an intersection around midnight with its lights on and the engine off. Ms. Fitzgerald was in the driver’s seat and readily produced the keys when asked. The trial court dismissed her felony DUI charge, but the appellate court reversed, holding that sitting in the driver’s seat with ready access to the keys made a prima facie showing that she could have started the car and driven away. The court explained that capability means “practical ability.”
The lesson from Fitzgerald is that losing a motion to dismiss does not end an actual physical control defense. That ruling only meant the case could go forward; the jury still decides whether the State proved control beyond a reasonable doubt. Our attorneys build that defense from the details: where the keys were, whether the engine or lights were on, whether the car could run, and who else was present.
Can you get a DUI for drugs or medication in Florida?
Yes. The impairment theory in section 316.193 covers any substance controlled under chapter 893, which includes many prescription pain, anxiety, sleep, and ADHD medications, along with illegal drugs. Florida has no per se limit for drugs the way it does for alcohol, so the State must prove the drug actually impaired the driver’s normal faculties. Our guides on DUI for prescription drugs in Florida and marijuana DUI in Florida explain how those cases are proved and defended.
Is DUI a misdemeanor or a felony in Florida?
Most DUIs are misdemeanors, but four situations make DUI a felony under section 316.193. The table shows how the charge is classified; our separate guide to Florida DUI penalties covers fines, jail, license revocation, and ignition interlock terms in detail.
| Situation | Classification |
|---|---|
| First or second DUI | Misdemeanor (up to 6 months in jail for a first conviction, up to 9 months for a second) |
| Third DUI within 10 years of a prior conviction | Third-degree felony |
| Fourth or later DUI, no matter when the priors occurred | Third-degree felony |
| DUI that causes damage to property or injury to another person | First-degree misdemeanor |
| DUI that causes serious bodily injury to another person | Third-degree felony |
| DUI that causes a death | DUI manslaughter, a second-degree felony |
A blood- or breath-alcohol level of 0.15 or higher, or having a passenger under 18 in the vehicle, raises the fines and the maximum jail time even on a first offense. Our homicide defense attorneys handle DUI manslaughter cases.
How common are impaired-driving crashes in Florida?
Impaired driving played a role in 969 traffic deaths in Florida in 2023, or 28.71% of the 3,375 people killed on Florida roads that year, according to the Florida Department of Highway Safety and Motor Vehicles’ Impaired Driving Annual Report (January 2025). The same report counts 6,026 impaired-driving crashes statewide in 2023, about 1.5% of all crashes.
National research shows how often drugs and alcohol appear together in serious crashes. In a 2022 study for the National Highway Traffic Safety Administration, researchers tested 7,279 seriously or fatally injured road users at seven Level 1 trauma centers, including one in Jacksonville, and found that 55.8% tested positive for alcohol or at least one other drug, as reported in Alcohol and Drug Prevalence Among Seriously or Fatally Injured Road Users (DOT HS 813 400). A positive test shows a substance was present. It does not prove the person was impaired, and that gap is where many drug DUI defenses begin.
What happens to your license after a DUI arrest in Florida?
A DUI arrest starts an administrative license suspension that runs separately from the criminal case. The driver has 10 days from the notice of suspension to request a review hearing or apply for a restricted license. Our guide to what happens after a DUI arrest in Hillsborough County walks through the license deadline, booking, first appearance, and the court dates that follow.
Refusing a breath or urine test carries its own consequences. Under section 316.1939, Florida Statutes, as amended by Trenton’s Law effective October 1, 2025, a first refusal after a lawful DUI arrest is a second-degree misdemeanor, and a later refusal is a first-degree misdemeanor, in addition to the license suspension.
Where do Florida DUI cases break down?
DUI cases break down where the State’s evidence depends on a step the officer had to perform correctly. These are the five points our attorneys test first:
- The stop. If the officer had no lawful reason to stop the car, a motion to suppress can remove everything that followed, including the test result.
- Actual physical control. When the car was parked, we examine the keys, the engine, and whether the person could practically operate the vehicle.
- Field sobriety exercises. Footwear, injuries, weight, road surface, and nerves all affect performance, and the video often shows a different picture than the report.
- The breath or blood test. Florida’s approved breath instrument is the Intoxilyzer 8000, and its maintenance records and the operator’s procedure must meet the state’s rules.
- The impairment evidence. Without a valid test, the State must prove impairment from observations alone, and we hold it to that burden.
In Hillsborough County, our attorneys also screen every first-time client for the State Attorney’s Reducing Impaired Driving Recidivism (RIDR) program, which can end an eligible misdemeanor DUI with a plea to reckless driving instead of a DUI conviction. We explain the program’s conditions before a client decides. Our Hillsborough County criminal defense page covers how cases move through the 13th Judicial Circuit, and our guide on how to fight a DUI charge in Hillsborough County goes deeper into each defense. For a full description of our DUI work, see our Tampa DUI lawyer page.
What results has our firm obtained in DUI cases?
| Charge | Result |
|---|---|
| DUI (refusal) and resisting an officer without violence | Not guilty on both charges at jury trial, after our attorneys used the scene video to show the client was not impaired |
| DUI (marijuana), with smoke visible on video | Reduced to reckless driving |
| DUI with open containers in the vehicle and an admission to drinking | Reduced to reckless driving |
| Administrative suspension of a commercial driver’s regular license and CDL | Suspension overturned on certiorari review in circuit court; both licenses reinstated |
Past results do not guarantee future outcomes.
Frequently asked questions about DUI in Florida
Can you get a DUI in Florida for sleeping in your car?
Yes, if you were in the driver’s seat with the practical ability to start and move the car. The Brancato Law Firm defends these cases by examining the key location, the engine, and the car’s condition, the same facts the court weighed in State v. Fitzgerald.
Can you be charged with DUI in Florida with a BAC under 0.08?
Yes. A result above 0.05 but below 0.08 creates no presumption either way under section 316.1934, so the State may still try to prove impairment from the officer’s observations. Our attorneys at The Brancato Law Firm use a low number to show the jury how thin that proof is.
Can DUI charges be dropped in Florida?
Yes. DUI charges can be dropped or reduced when the stop was unlawful, the test result is excluded, or the impairment evidence is weak, and many first-time cases in Hillsborough County resolve through the RIDR program. The Brancato Law Firm pursues dismissal first and negotiates reductions to reckless driving when the evidence supports it, as described on our DUI defense in Tampa page.
Is refusing a breath test a crime in Florida?
Yes, since October 1, 2025. A first refusal after a lawful DUI arrest and the required warnings is a second-degree misdemeanor under section 316.1939, and The Brancato Law Firm defends the refusal charge by testing whether the arrest was lawful and whether every warning was given.
Does a DUI arrest suspend my license before I am convicted?
Yes. The officer issues a notice of suspension at the arrest, and the suspension takes effect unless you act within 10 days. The Brancato Law Firm files the review request or the restricted-license application inside that window, as our guide on protecting your license after a DUI arrest explains.
Talk to our attorneys about a Florida DUI charge
Your license deadline started the day of the arrest, and the video and breath records our attorneys need are easiest to secure in the first days. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. For more about our defense strategies, visit our DUI defense page.
The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties
The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.
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