Probation

Probation - s. 316.193 (5)(6), F.S.

Here, our Palm Beach and Broward County DUI defense attorneys at Leifert & Leifert have provided an outline of the sections of the Florida State statute that deal with the stipulated terms of probation as they are defined for the purpose of inclusion in the penalty for driving under the influence.

The first relevant section to our discussion on this page is subsection (5) of Section 316.193 of the Florida State Statutes. The subsection states that the court shall place offenders convicted of violating section 316.193 on probation with monthly reporting and shall require the convicted individuals to complete a substance abuse course (which includes a psychosocial evaluation). If deemed necessary, substance abuse treatment must be completed and the (reasonable) costs associated with the treatment are the responsibility of the offender. The “substance abuse” (defined as abuse of substances in Schedules I through V of s. 893.03) treatment cannot be waived without the recommendation of an independent, qualified clinician with access to the program’s records. The court will review the recommendations of both evaluations before determining whether the waiver should be granted.

The Palm Beach and Broward County DUI defense attorneys at Leifert & Leifert know that if an offender referred to treatment fails to report to or complete the treatment, or fails to complete the DUI program substance abuse education and course evaluation, the DUI program will notify the court and the department of the failure and the department will then cancel the offender’s driving privilege. The department can temporarily reinstate the driving privilege on a restricted basis upon verification from the DUI program that the offender is currently participating in treatment and the DUI education course and evaluation requirement have been completed. If an offender fails to complete the treatment a second time, the department shall only reinstate the driving privilege after it has received notice of completion of treatment from the DUI program.

The second relevant subsection is subsection (6) of 316.193, which deals with terms and figures for probationary periods. Our Palm Beach and Broward DUI defense attorneys have provided the information contained in s. 316.193(6) below.

(a) For the first conviction, the court shall place the defendant on probation for no more than 1 year; as part of that probation, the defendant shall participate in public service or community service for no less than 50 hours. The court may order the defendant to pay a fine of $10 for each hour of public service or community work otherwise required only if the court finds that the residence or location of the defendant precludes them from completing public or community service without undue hardship or if the defendant’s employment obligations preclude them from completing the service without undue hardship.

The court must also, as a condition of probation, order the impoundment or immobilization of the vehicle that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant’s name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant.

(b)    For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver’s license revocation imposed under s. 322.28(2)(a)2. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.

(c) For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver’s license revocation imposed under s. 322.28(2)(a)3. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.

Our Palm Beach and Broward DUI defense attorneys know that as the number of convictions an individual has increases, so do the penalties—this is an issue both as a punitive measure and as it relates to the ability of the offender to complete the court-mandated probation and associated treatments and community service work.

(d) The court must at the time of sentencing the defendant issue an order for the impoundment or immobilization of a vehicle. The order of impoundment or immobilization must include the name and telephone numbers of all immobilization agencies meeting all of the conditions of subsection (13). Within 7 business days after the date that the court issues the order of impoundment or immobilization, the clerk of the court must send notice by certified mail, return receipt requested, to the registered owner of each vehicle, if the registered owner is a person other than the defendant, and to each person of record claiming a lien against the vehicle.

(e) A person who owns but was not operating the vehicle when the offense occurred may submit to the court a police report indicating that the vehicle was stolen at the time of the offense or documentation of having purchased the vehicle after the offense was committed from an entity other than the defendant or the defendant’s agent. If the court finds that the vehicle was stolen or that the sale was not made to circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs. If the court denies the request to dismiss the order of impoundment or immobilization, the petitioner may request an evidentiary hearing.

(f) A person who owns but was not operating the vehicle when the offense occurred, and whose vehicle was stolen or who purchased the vehicle after the offense was committed directly from the defendant or the defendant’s agent, may request an evidentiary hearing to determine whether the impoundment or immobilization should occur. If the court finds that either the vehicle was stolen or the purchase was made without knowledge of the offense, that the purchaser had no relationship to the defendant other than through the transaction, and that such purchase would not circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs.

(g) The court shall also dismiss the order of impoundment or immobilization of the vehicle if the court finds that the family of the owner of the vehicle has no other private or public means of transportation.

(h) The court may also dismiss the order of impoundment or immobilization of any vehicles that are owned by the defendant but that are operated solely by the employees of the defendant or any business owned by the defendant.

(i) All costs and fees for the impoundment or immobilization, including the cost of notification, must be paid by the owner of the vehicle or, if the vehicle is leased or rented, by the person leasing or renting the vehicle, unless the impoundment or immobilization order is dismissed. All provisions of s. 713.78 shall apply. The costs and fees for the impoundment or immobilization must be paid directly to the person impounding or immobilizing the vehicle.

(j) The person who owns a vehicle that is impounded or immobilized under this paragraph, or a person who has a lien of record against such a vehicle and who has not requested a review of the impoundment pursuant to paragraph (e), paragraph (f), or paragraph (g), may, within 10 days after the date that person has knowledge of the location of the vehicle, file a complaint in the county in which the owner resides to determine whether the vehicle was wrongfully taken or withheld from the owner or lienholder. Upon the filing of a complaint, the owner or lienholder may have the vehicle released by posting with the court a bond or other adequate security equal to the amount of the costs and fees for impoundment or immobilization, including towing or storage, to ensure the payment of such costs and fees if the owner or lienholder does not prevail. When the bond is posted and the fee is paid as set forth in s. 28.24, the clerk of the court shall issue a certificate releasing the vehicle. At the time of release, after reasonable inspection, the owner or lienholder must give a receipt to the towing or storage company indicating any loss or damage to the vehicle or to the contents of the vehicle.

(k) A defendant, at the court’s discretion, may be required to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Our Palm Beach and Broward DUI defense attorneys know that any time spent in such a program must be credited by the court toward the term of imprisonment.

The information contained on this page is not the entirety of the relevant state statutes regarding the community service component of probation for a DUI penalty. The rest of the relevant law, as well as the information referenced on this page, can be explained in more depth in consultation with our Palm Beach and Broward County DUI defense attorneys at Leifert & Leifert. Give us a call at 1-888-5-DEFEND (1-888-533-3363).

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