Double Jeopardy in DUI cases

In some cases, the prosecutor might charge various forms of DUI that result from the same conduct such as DUI and DUI with property damage. If so, the defense can are the convictions violate the prohibition against double jeopardy.

“DUI is a continuing offense for which only one conviction may be maintained for each episode.” Labovick v. State, 958 So. 2d 1065, 1068 (Fla. 4th DCA 2007) (citing State v. Witcher, 737 So. 2d 584, 586 (Fla. 1st DCA 1999)).

“Generally, a separate criminal episode occurs when there is a sufficient temporal break that allows the offender to reflect and form a new criminal intent.” Id.

If there is a single instance of Defendant driving under the influence of alcohol with no temporal break in the driving sufficient for the Defendant to reflect and form a new intent to commit a separate act of driving under the influence, then the defendant can only be convicted of one count of DUI.

In other words, if the defendant’s charges arose from a single criminal episode, and because the DUI statute, section 316.193, Florida Statutes , does not express clear legislative intent to authorize or prohibit separate punishments, “the next inquiry is whether separate punishments for the two convictions violate the Blockburger test, as codified in section 775.021(4).” Valdes v. State, 3 So. 3d 1067, 1070 (Fla. 2009).

Double Jeopardy for Simple DUI and DUI with Property Damage

Charges for simple DUI and DUI with property damage do violate the test. Since a conviction of DUI with property damage explicitly requires that the defendant committed the offense of simple DUI, the offenses of simple DUI and DUI with property damage cannot be said to each require proof of an element that the other does not. Simple DUI does not require proof of any element that DUI with property damage does not require.

In addition to falling outside the scope of section 775.021(4)(a), simple DUI, as compared to DUI with property damage, also falls within two of the exceptions in section 775.021(4)(b), as the statutory elements of simple DUI are subsumed by DUI with property damage, and simple DUI and DUI with property damage are also degrees of the same offense as provided by the DUI statute.

In Velazco v. State, 342 So. 3d 614, 619 (Fla. 2022), th court held that DUI offenses are degrees of the same offense under the DUI statute. In Powers v. State, 316 So. 3d 352, 356-57 (Fla. 4th DCA 2021), the court found a simple DUI is a lesser-included offense of DUI causing property damage.

Because the offenses of simple DUI and DUI with property damage arising out of the same criminal episode do not constitute separate offenses under section 775.021(4)(a), and also fall within two exceptions of section 775.021(4)(b) even if they were separate offenses, a defendant cannot be be sentenced for both simple DUI and DUI with property damage without violating the prohibition on double jeopardy.

Double Jeopardy for Different DUI with Property Damage Charges with Multiple Victims

Separate charges for DUI with property damage do not violation double jeopardy if where there are multiple victims. In other words, there is no prohibition on multiple convictions for DUI with property damage where there are multiple victims. See Hertzschuch v. State, 687 So. 2d 52, 53 (Fla. 3d DCA 1997) (citing Melbourne v. State, 679 So. 2d 759, 765 (Fla. 1996)); but see Thompson v. State, 351 So. 3d 241, 242 (Fla. 2d DCA 2022) (holding that multiple convictions for DUI with property damage where all of the damaged property is owned by a single victim does constitute a double jeopardy violation).

This article was last updated on Friday, April 8, 2026.