One DUI is a serious criminal offense, carrying severe consequences. As the Fourth District Court of Appeal’s recent ruling in Yacoub v. State makes clear, three DUIs can make the consequences much more severe.
Christina Yacoub has been arrested, charged and convicted of driving under the influence in Florida three times. She plead guilty to misdemeanors on the first two charges on the same day in 2002. Following her third arrest in July 2008, Yacoub was charged with felony DUI.
While the offense is typically considered a misdemeanor, Florida law provides that a person convicted of DUI three times in a 10-year span may be charged with a felony, punishable by a fine of up to $5,000 and no more than one year in jail. Persons convicted of felony DUI are also required to install an ignition interlock device in their cars, which requires a driver to take a breathalyzer test before starting the vehicle and intermittently while driving.
A trial court denied Yacoub’s motion to dismiss the felony charge, in which she argued that one of her prior DUI convictions should not count for purposes of the felony charge because was not represented by an attorney when she was prosecuted for the offense. On appeal, however, the Fourth District agreed with Yacoub, ruling that she should not be charged with a felony.
“A defendant charged with felony DUI may move to dismiss the charge by alleging that the state is improperly relying on a prior uncounseled misdemeanor DUI conviction,” the Court ruled, citing the state Supreme Court’s 2008 decision in State v. Kelley. This defense is available, however, only to a defendant who is indigent – a term referring to the very poor – and entitled to court-appointed counsel as a result. The defendant must assert that he or she did not waive the right to counsel and nevertheless was not appointed a lawyer.
While a person raising this defense must make the claims explained above, a prosecutor contesting the defense is required to show that it isn’t applicable. “The state had the burden of establishing that counsel was provided for the second DUI or that Yacoub validly waived her right to counsel,” the Court explained. Because it did not provide a transcript of the plea conference nor produce evidence showing that Yacoub waived her right to counsel, the state failed to meet this burden, according to the Court.
Despite evidence showing that Yacoub was represented by a public defender in the first DUI proceeding – which took place the same day as the second proceeding before the same judge – the Court said that the proximity alone was not enough for it to conclude that she was also represented on the second matter.
As a result, the Court remanded the case back to the trial court with instructions that Yacoub be sentenced for misdemeanor DUI.
It is essential that a person charged with DUI in Florida seek the advice of an experienced attorney. The South Florida criminal defense lawyers at Anidjar & Levine are experienced in handling DUI cases and have consistently provided high quality representation to clients all over Florida, including in Fort Lauderdale, Boca Raton and Pompano Beach.
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