F.S. 322.2616 - Underage DUI, License Suspension

There’s no age at which driving drunk or drug-impaired is legal in Florida. But if you’re under the age of 21, you could be facing penalties under both F.S. 316.193 (Florida’s criminal DUI law) and F.S. 322.2616 (Florida’s administrative underage DUI law). 

Florida has a zero tolerance policy when it comes to underage drinking and driving. An under-21 driver could have a BAC that’s below the state’s legal threshold – and still face penalties. 

Under the state’s primary DUI law, any driver who is under the influence of drugs or alcohol - to the extent their normal faculties are impaired - can be arrested for DUI. But if investigating officers are basing probable cause for a DUI arrest on blood-alcohol level (as revealed by a breathalyzer or blood test), the threshold is 0.08% However, if you’re under the age of 21, F.S. 322.2616 drops it down to 0.02%. 

To be clear: F.S. 322.2616 isn’t classified as a traffic violation or criminal offense. Rather, it imposes administrative consequences that primarily pertain to license suspension. It may also involve mandatory treatment for drug or alcohol abuse (particularly if you’re under 18). Both can have a significant impact on the life of a young person, which is why it’s still a good idea to consult with an experienced Fort Lauderdale criminal defense lawyer. This is especially true if you’re also charged with F.S. 316.193 for being legally under the influence or having a BAC of 0.08% or more.

We understand parents may be inclined to allow their teen or college student to face this on their own so they “learn the hard way.” But the fact is any DUI charge on their permanent record can impact their standing with school, scholarship opportunities, sports programs, job prospects, auto insurance rates, etc. There are ways to compel them to take the situation seriously without saddling them with a record that will follow them for life. 

Save for a few limited circumstances, Florida law forbids people under 21 from possessing alcohol. First-time offenders of F.S. 562.111 face a second-degree misdemeanor, punishable by up to 60 days in jail. 

Because they aren’t legally allowed to drink or even possess alcohol, the expectation is that they aren’t going to be consuming any amount before driving or assuming control of a car. Conversely, a person over 21 can technically drink and drive, but they need to maintain control of their normal faculties and keep their BAC under 0.08%. 

A person’s BAC can be affected by a number of factors (size/weight, the type of alcohol, how much they’ve eaten, etc.). But in general, one standard drink will result in a BAC level of somewhere between 0.02% and 0.04%. It’s entirely plausible an underage person could be in violation of F.S. 322.2616 after consuming less than one drink. Meanwhile, someone over 21 would probably need to consume at least two to cross the legal threshold. 

So while the Florida underage DUI law isn’t a criminal violation, its penalties are pretty significant considering how little it takes to trigger them. 

Establishing a violation of underage DUI under F.S. 322.2616 differs a little from the typical DUI investigation.

An officer with probable cause to believe a person under 21 is either driving or controlling a vehicle while also having “any blood-alcohol or breath-alcohol level” can legally detain that person and request they submit to alcohol testing. 

If the subject’s BAC is 0.02% or higher, the officer is expected to:

• Suspend their driving privileges. This starts immediately and can last for 6 months.
• Issue a 10-day temporary driving permit. This is upon request and effective no sooner than12 hours after issuance. During this 10-day window, you can contact an attorney who can help you request an informal hearing with the Florida Department of Highway Safety & Motor Vehicles. That review must be held within 30 days, with the temporary permit extended until that review date. 
• Notify parents/guardians. This is only for drivers under 19.
• Submit an affidavit to the department. This must be done within 5 days and detail all the evidence relevant to establishing a violation.

If the subject’s BAC was 0.05% or higher, that automatic license suspension will continue until the person completes a substance abuse course at their own expense. 

If the subject was under 18 and had a BAC of 0.02% or higher, police may take them to the county’s addictions receiving facility. 

If the subject refuses a BAC test, it’s an automatic 1-year license suspension. 

Although a license suspension under this section doesn’t stop a person from being prosecuted under the state’s primary DUI statute (F.S. 316.193), a person can’t have their license suspended under both statutes. 

Those cited under F.S. 322.2616 often find it worthwhile to fight license suspension – with the help of an experienced Fort Lauderdale DUI defense lawyer. 

License suspensions are often invalidated because rules can be complicated and officer mistakes are common. Fighting license suspension will not hurt your pending criminal case, if there is one. If the outcome of the informal hearing is unfavorable, your attorney could request a formal hearing, which must take place within 30 days of the request. 

The scope of these reviews are limited to: 

• Whether the officer had probable cause.
• Whether the driver was under 21.
• Whether they had a BAC of 0.02% or higher. 

If this effort is unsuccessful, your attorney can either appeal it in court or at least request our client be allowed driving privileges for work or school. 

If you have been arrested for DUI in Fort Lauderdale, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.