State v. Oxios

11 Fla. Supp. 2d 51

• Court: Broward County Court
• Decided: May 28, 1985
• Docket: Case No. 84-94112MM10
• Status: Published

Opinion

OPINION OF THE COURT

STEVEN G. SHUTTER, County Judge.

This cause came on to be heard upon an issue of first impression and being one of statutory construction. This Court has reviewed the statutes, heard the arguments of counsel and is otherwise fully advised.

ISSUE

Does Florida Statute 316.193 require a minimum mandatory imprisonment for 30 days for a third conviction of driving under the influence (or unlawful blood alcohol level or driving while intoxicated) if the only last prior conviction is within 5 years of the present conviction or does the statute require that all three convictions be within 5 years of each other?

DISCUSSION

F.S. 316.193 provides that:

(4) “With respect to any person convicted for a violation. . . .

(c) For the third conviction within a period of 5 years from the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days.”

There appears to be no appellate decision or published lower court decision on this issue. The statute does not specifically state that “any” of the two prior convictions may be within 5 years of the present conviction. On the other hand, the statute does not specifically indicate all three convictions must be within a single five year period. Therefore, the construction of this statute hinges upon the phrase “5 years from the date of a prior conviction.”

To ascertain the legislative intent, it is necessary to examine a related statute, F.S. 322.28, which is concerned about the period of time for which a driver’s license is suspended for conviction of driving under the influence. F.S. 327.28(2)(a)(3) provides:

“Upon a third conviction within a period of 10 years from the date - of conviction for the ñrst violation of the provisions of F.S. 316.193, the driver’s license or driving privilege shall be revoked for not less than 10 years” (emphasis added).

In drafting this section, the Legislature made it clear that all three convictions would have to be within 10 years of each other. F.S. 316.193 and F.S. 322.28 are companion statutes relating to driving under the influence and the penalties heretofore have been continuously amended by the Legislature in the same Bill, see Laws 1984.

If the Legislature had intended F.S. 316.193 to require all three convictions be within 5 years of each other, they would have done so in the same manner as they did in F.S. 322.28. However, the instant statute provides “the mandatory imprisonment within a period of 5 years from the date of a prior conviction.”

DECISION

Based upon the foregoing, this Court finds that for the 30 day minimum mandatory imprisonment to apply to a third conviction of driving under the influence of F.S. 316.193 there need be two prior convictions, only one of which need be within 5 years of the present conviction.