Drugged Driving | Why DUI Drug Impairment is Difficult to Prove

Drugged Driving | DUI Drug

Drugged Driving | DUI Drug

Drugged Driving | DUID

The following post, as well as the entire website, is for informational purposes only and is not intended to be relied upon for either legal or medical advice.  The author of this post has no medical training. 

Florida Statute 316.193 is Florida’s DUI statute.  An individual is only considered impaired if that individual is impaired by 1) alcohol; 2) a chemical substance under Florida Statute 877.111 or 3) a controlled substance listed in Chapter 893 Florida Statutes.  The State must prove impairment and name the specific substance in order to get a conviction for DUI under a drug impairment theory a/k/a drugged driving.  The State is required to prove the specific substance because the substance must be listed in Chapter 893.  Proving the specific substance causing impairment is becoming a more difficult task as more “designer drugs” or “legal highs” hit the market.

Drug Testing

Drug testing is a two step process.  The first step is the preliminary screening.  Positive screens are sent for a confirmatory test.

Preliminary Screen

The majority of Florida DUI drug cases will involve a urinalysis.  The preliminary drug screen typically consists of a 10 panel immunoassay test.  This is commonly known as a dipstick test.  The preliminary screen detects biological markers indicative of exposure to or use of certain drugs and/or classes of drugs.  For example, a 10 panel immunoassay test can test for cocaine, which is a specific drug, as well as benzodiazepines, which are a class of drugs.  An immunoassay test can identify the characteristics of a substance, but is typically not able to determine the exact substance.

Confirmatory Test

The second step of the process is the confirmatory test.  The confirmatory test is typically a GC/MS or gas chromatography mass spectrometry test.  The GC/MS separates the molecules so the exact chemical compound can be determined. While a immunoassay test will show positive for benzodiazepines, the GC/MS is can determine whether the benzodiazepine is alprazolam a/k/a Xanax or diazepam a/k/a Valium.  For more information regarding GC/MS testing, please see Frederic Douglas’ article by clicking this link: Scientific Criminal Defense.

Chapter 893 Florida Statutes

If it is not a listed controlled substance in Chapter 893 Florida Statutes, it is not capable of causing impairment as defined by Florida Statute 316.193(1)(a).  A specific example of this is zolpidem a/k/a Ambien.  Ambien is a powerful sedative hypnotic drug.  It is a federally controlled substance.  However, an individual cannot be convicted for a DUI based on being impaired by Ambien since zolpidem is not listed in Chapter 893 Florida Statues.

Designer Drugs and Research Chemicals

Certain “designer drugs” or “research chemicals” are within a class of drug detected on the 10 panel immunoassay, but are not scheduled controlled substances under Federal or Florida Law.  Some of the more common “designer drugs” are benzodiazepines.  There are several high potency benzodiazepines that are unscheduled under Florida and Federal Law.  Impairment via an unscheduled benzodiazepine may not be impairment as defined in Florida’s DUI statute.

For example, pyrazolam is an extremely potent benzodiazepine derivative that is not a scheduled controlled substance under Florida Law.  Accordingly, even if the State is able to prove that a driver is physically impaired by pyrazolam, the individual is not legally impaired for purposes of Florida’s DUI statute.  The reason why is because pyrazolam is not listed in Chapter 893 Florida Statutes and has no metabolites that are listed in Chapter 893 Florida Statutes.

Amature Chemists Beware

One of the problems with “legal highs”, “designer drugs” and “research chemicals” is that there isn’t much information available on the specific substances.  There is little to no information available on the short and long term physical and mental effects on humans.  Additionally, there is little to no information regarding the metabolism of a specific substance.  What information we do have on research chemicals is frightening.

Diclazepam is currently being marketed as a “research chemical” which is “not intended for human consumption.”  Some of the more intellectually honest websites are marketing it as a “legal high.”  Nevertheless, it is clear that the substance is a benzodiazepine and is not a scheduled controlled substance under Florida or Federal Law.  It should be noted that an individual could be prosecuted for buying, selling or possessing diclazepam under the federal analogue act under certain circumstances.

The limited studies concerning diclazepam show that it metabolizes into three main active metabolites after ingestion.  The three metabolites are lorazepam, delorazepam and lormetazepam.  All three of the active metabolites are controlled substances listed in Chapter 893 Florida Statutes.  An involuntary intoxication defense to DUI would not be permitted if an individual ingested diclazepam, but was impaired by any of the three active metabolites.  Although the approximate detection time limit for a single dose of lorazepam is 5 days, studies show that an individual who ingests diclazepam  may still test positive for lorazepam 19 days after ingestion.

For Lawyers

Make sure that the confirmatory test states a specific substance.  If you are unfamiliar with the substance, check Chapter 893 Florida Statutes.  Do not assume that the substance is included.  Cannabinoids is not a drug, it is a class of drugs.  Benzodiazepines are not a drug, it is a class of drugs.

For Others

All that is required for you to be arrested is probable cause.  If the officer has reason to believe that you are under the influence of a scheduled controlled substance while you are operating a vehicle, you will be arrested.  There is an inherent risk with any type of criminal litigation and you might be convicted.  In the event that you are not convicted, you will still go to jail and you will still have to pay for an attorney.  An attorney who can handle this type of case will not be cheap.  Additionally, just because you are not criminally liable does not mean that you would not be subject to civil liability in the event that somebody gets hurt or killed.  In addition to the legal consequences, intentionally ingesting unstudied chemicals from an anonymous internet based drug dealer/chemist is recklessly placing your physical and mental health in harms way.  Just because it is legal doesn’t mean that it is safe.

For more information on drugged driving or other criminal defense matters, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286