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Fort Lauderdale, FL 33315
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Getting a Fair Trial in Florida When You Have a Prior DUI Conviction

If you have a prior DUI conviction in which you refused to submit to sobriety testing, how do you ensure that you get a fair trial on a new DUI charge—one that will be based on the evidence of whether or not you drove under the influence, not whether you’ve done so in the past?

Under Florida law, to get a conviction for a defendant’s refusal to submit to testing (with a prior offense), the government is required to prove that the defendant’s “driving privilege had been previously suspended for a prior refusal to submit to a lawful test,” according to Florida Statute. § 316.1939. This follows from the general principle that, in a criminal trial, the government always has the burden to prove the defendant’s guilt of every element of the offense beyond a reasonable doubt.

In other words, what if, having previously been convicted of both DUI and refusing to submit to sobriety testing, you are charged with the same two offenses again? At the second trial, does the government get the existence of the prior offense automatically on the refusal charge if it successfully proves the existence of your prior offense on the DUI charge (or vice versa)? These complex procedural questions often come up even in simple DUI cases. If you aren’t aware of them, you may not get the full procedural protections to which you are entitled under the law.

A Recent Example from the Florida Courts

In the 2013 case of Allen v. State, the Florida Court of Appeals confronted exactly the scenario described above. Mr. Thomas Allen was charged with DUI and refusing to submit to a sobriety test. He had three prior convictions for DUI and one prior conviction for refusing to submit.

His attorney argued that, because the state had the burden to prove Mr. Allen’s guilt beyond a reasonable doubt on each element, it shouldn’t be allowed to use the existence of either prior conviction without proof. Therefore, he said, the two offenses should be severed and tried separately. The Florida Court of Appeals agreed with Mr. Allen’s lawyer, finding that the trial court had erred in summarily dismissing his argument for severing the two counts. “The presumption of innocence,” wrote the unanimous court, “may be destroyed by proof of a similar related offense.” There was a danger, the Court correctly acknowledged, that—by hearing the evidence against Mr. Allen on one count—the jury would be biased against him on the other. The Court therefore sent the case back to the trial court to provide Mr. Allen’s attorney a full opportunity to argue the point.

Mr. Allen’s counsel knew all the ins and outs of the complex procedural devices that comprise a criminal trial. His appeal ensured that his client would receive a fair trial in which the government would be required to carry its traditional burden of proof. Kevin J. Kulik, an experienced Fort Lauderdale criminal attorney with years of savvy in handling repeat and felony DUI cases, can ensure that you, too, get a fair chance.

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