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Recieving a Downward Departure for a Felony DUI in Florida

Henderson v. State, makes receiving a downward departure for felony DUI in Florida more difficult but not impossible. On Appeal, the Henderson court ruled in November 2014, that a DUI driver, who pleads guilty or is found guilty of a 4th DUI, cannot rely on a non-statutory mitigator for a downward departure from a state prison sentence.

In 2012, Henderson entered an open plea to driving under the influence, her 4th DUI, resisting an officer with violence, and driving while her license was suspended or revoked. Originally, the trial court departed from her sentencing guidelines on the basis that she was: (i) in “need of rehabilitation for substance abuse”; and (ii) needed at home to be “financially, physically, mentally and emotionally supportive of her minor son,” who himself was at risk due to his mother’s addiction.

On appeal, the same Appellate Court reversed and remanded for resentencing, finding that the non-statutory mitigators used by the trial court “failed to comport with legislative sentencing policies as interpreted by Florida courts in their previous ruling.”Specifically, the trial court’s interpretation of Section 921. 0026(3), precludes using substance abuse or addiction as an excuse for criminal conduct justifying a downward departure in a DUI sentencing. The Appellate Court went on to hold, which has long been the law in Florida, that section 921.0026(3) does not allow substance abuse or addiction to be the basis of a downward departure, even if couched in terms of rehabilitation.

Moreover, the Appellate court also reasoned that when a driver is arrested for DUI, and finds themselves again arrested for the same offense, it cannot by law be an “isolated incident” to allow mitigation of sentence; under the principle of unsophistication or isolated “one-time” incident. The Appellate court stated the following factors for review:  (i) the driver had three prior DUI convictions; (ii) the driver’s second, third, and fourth DUI were all committed within the previous two-year period; (iii) the driver’s fourth DUI occurred just ten months after her third DUI; and (iv) the driver was on probation when she was re-arrested for her 4th DUI all factor into this Appellate court holding that Henderson’s 4th DUI ought not be considered “isolated.”  Therefore, because the DUI driver’s actions ought not to be considered “isolated”, under the sentencing mitigator scheme, the lower court should not have mitigated her sentence under the theory of an isolated event.

Sentencing Courts, with good judges like shown above, will try their best to mitigate many DUI sentences and other criminal offenses. Compassionate judges at sentencing realize that not everyone is perfect and even good people make mistakes. The key to getting a reduced sentence is laying the proper evidentiary foundation at the sentencing hearing, so that the sentencing judge may hang their hat onto the reduced sentence ring, which will also stand in the Appellate Courts.

While the Henderson decision makes it more difficult for a reduction of a DUI sentence, it is not impossible! The Appellate court ruled that “being arrested within ten months of her last DUI and, while the driver was on probation does not render the new DUI, as an isolated incident.” But what if the driver is not on probation during their new arrest for DUI? What if their last DUI was outside of 10 months, since their last DUI arrest? Do the previous facts then change the circumstance for which the sentencing judge may mitigate the sentence of the DUI offender?

The answer is in the affirmative. The Appellate Court decision in Henderson allows for the DUI driver to argue with great sincerity and guidance from their reviewing decision for a downward departure in the driver’s DUI sentencing. With the above parameters set in Henderson’s Appellate decision: If you or a loved one has been arrested in Palm Beach County, for felony DUI, contact West Palm Beach DUI Lawyer Andrew D. Stine. Andrew D. Stine, has been practicing DUI defense for over a decade. Andrew D. Stine has more than a decade of experience in the trial courts, appellate courts and administrative courts throughout all of Florida. Like the old saying goes “Hire Stine or Do the Time.”

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