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Marijuana DUI | Florida Law

Marijuana DUI Blood Test

Marijuana DUI Blood Test

Marijuana DUI | Amendment 2

In November 2016, the citizens of Florida passed Amendment 2.  Amendment 2 legalizes possession and use of marijuana for individuals who have been diagnosed with certain debilitating illnesses. It is common sense that marijuana use will increase given the passage of Amendment 2.  Anticipating an increase in the use of marijuana, both recreationally and out of medical necessity, law enforcement must find a way to accurately test for impairment by marijuana to enforce the state’s impaired driving laws.

Marijuana DUI Urine Testing | The Current Test

In Florida, it is nearly impossible for the state to get a conviction for DUI under a marijuana impairment theory.  The state is typically limited to urine testing for drug impairment.  A urinalysis alone cannot determine if an individual is impaired.  Impairment by drugs is more accurately measured with a blood test.  However, Florida law restricts an officer’s ability to obtain a blood test in a DUI case. A DUI conviction can result in serious penalties. A first time DUI is almost always a misdemeanor, but there are situations where the state will pursue felony charges.

Florida House Bill 237 | Marijuana DUI Blood Test

Florida House Bill 237 was introduced into the Florida House of Representatives by Representative Brandes on January 12, 2017. The purpose of the bill is to amend Florida Statute 316.193 by establishing a quantitative threshold of an active marijuana metabolite which, if established, would prove the crime of driving under the influence.  This is like the .08 quantitative threshold for breathalyzer tests.

The specific amendment adds a subsection (d) to Florida Statute 316.193 (1). The proposed amendment reads as follows:

“A person commits the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(1) (d) the person has a blood level of 9 nanograms or more of delta 9 tetrahydrocannabinol per milliliter of blood, as shown by an analysis of the person’s blood.”

DUI Blood Test|Typically Illegal

A police officer can request a breath or urine test to determine the presence of alcohol or a controlled substance when an individual has been arrested for driving under the influence. However, a police officer is not able to request a blood test in every instance. Florida law restricts a police officer’s ability to obtain a blood sample for testing in the vast majority of DUI cases.  There are two exceptions that permit a police officer to obtain a warrantless blood draw from a suspect.  Those exceptions are:

  • Florida Statute 316.1932(1)(c) – “There is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible” and

 

  • Florida Statute 316.1933(1)(a) – “If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person.”

 

It is important to note that an individual can refuse a test under the circumstances set forth in Florida Statute 316.1932(1)(c). However, a police officer is required to perform a blood draw under the circumstances set forth in Florida Statute 316.1933(1)(a).  Under the latter, the officer is permitted to use force to obtain the blood sample.

The proposed amendment to the DUI statute contained in Florida House Bill 237 is ineffective and will have no or minimal impact in DUI prosecutions.  When an officer suspects drug use in a DUI case, the implied consent statute permits the officer to request a urine test to determine the presence of a controlled substance.  However, the proposed amendment specifically states that a blood sample is required. There are no legal means for an officer to collect a blood sample in the overwhelming majority of cases today.  House Bill 237 does not provide any additional legal means for an officer to obtain a blood sample and is, therefore, essentially useless.

For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

DUI Manslaughter Defense

DUI Manslaughter Defense

Analysis of Postmortem Specimens

Strict Liability vs Causation

Florida had a strict liability DUI manslaughter statute until 1986.  All the state needed to prove was that the defendant was driving while impaired, was involved in a car accident and somebody died as a result of the car accident. It did not matter if the defendant was at fault for the accident. The legislature amended the DUI manslaughter statute in 1986 to include the element of causation.

Constitutional Issue with Strict Liability

The problem with the strict liability DUI manslaughter statute, in my opinion, was that the criminal culpability for a misdemeanor DUI and the criminal culpability for a DUI manslaughter was equal. A good argument could be made that the strictly at liability DUI manslaughter statute violated the 8th Amendment of the United States Constitution as a cruel and unusual punishment. The current DUI manslaughter statute requires the state to prove the following: 1) driving under the influence; 2) an accident resulting in death and 3) and that the defendant was somehow at fault for the accident. The causation element must be proved independent of impairment.

Not My Fault Defense

Defending DUI manslaughter cases is difficult under any circumstances. It is human nature to look for somebody to blame when somebody dies before their time.  It is also human nature to not speak ill of the dead.  However, a legally viable defense to DUI manslaughter is that the decedent was at fault for the accident even though the defendant was driving drunk. The defendant would be guilty of DUI, but not DUI manslaughter in that scenario. The “not my fault defense” is a particularly difficult proposition to sell to a jury. In essence, you are saying to the jury “Yes, my client was driving drunk. Yes, my client was involved in a fatal car accident. However, the car accident was the dead guy’s fault.”

Theory vs. Reality

Nobody ever gets screwed by the law in a bar exam essay question.  However, this is not a law school exam question. Defense attorneys need to stop thinking about legal theory and focus on where the rubber meets the road.  Technically, the defense bears no burden of proof, but if this is your defense, you are going to need to show some solid evidence.  The jury is looking to blame somebody and there is a good chance that it is going to be the defendant.  Personally, I wouldn’t want to use this defense if it did not have a strong factual basis.  The risk of alienating the judge and jury by blaming the victim without any serious basis is too great.

Where to Find the Evidence

The autopsy report from the County Medical Examiner’s Office is a valuable source of information for the defense. Please note that the Medical Examiner’s Office may be called something different in another state.  Biological specimens, such as blood and urine, are preserved during the course of an autopsy. Toxicology testing is performed on the specimens. The results of the toxicology tests may show that the was under the influence of some sort of drug or alcohol at the time of the accident.

It should be relatively easy to establish whether the decedent was under the influence of a drug at the time of the accident. The postmortem blood sample will identify the drugs in his or her system at the time of death. Postmortem quantitative analysis of controlled substances in a decedent’s blood is another topic for another time. The biggest problem that defense attorneys run into when trying to evaluate the culpability of the decedent is the quantitative analysis of ethyl alcohol in the decedent’s blood.

No matter what methods are used, using the BAC at the time of autopsy in order to determine the decedent’s impairment at the time of the accident is an educated guess at best and gross speculation at worst.  The reason for the uncertainty is because alcohol can be produced or destroyed in between the time of death in the time of the autopsy. Autolysis is defined as the self digestion or destruction of an organism’s own cells through the action of its own enzymes. This begins to occur within hours of an individual’s death and his present throughout the vast majority of the vascular system within hours. The result is an environment which supports the endogenous production of alcohol. Multiple environmental factors contribute in determining if endogenous alcohol is produced or the extent of the endogenous production. The two most significant are typically time and temperature.

Postmortem BAC Testing is Never Ideal

We obviously want the BAC to be as accurate as possible. In an ideal world we would like to have a blood sample taken from the decedent as soon as possible after the accident and a second blood sample taken 45 minutes to an hour after the first blood sample with both being prior to death. If that is the case, we would probably not need to use the postmortem sample.

If possible, the first thing that the defense attorney should do is check the decedents medical records in order to determine if a BAC screen was ordered by a doctor at the hospital. You may have to request a subpoena duces tecum if the medical evidence from the hospital is not provided in discovery.  Sometimes individuals die on the scene or on their way to the hospital so this is not always available. If there is no antemortem sample, the defense attorney has to be able to assess the reliability of the autopsy sample.

Additional Reading

Postmortem analysis of biological specimens for ethyl alcohol is very complicated.  Try as I might, I cannot say it any better than it is said on this website: BAC Analysis in Postmortem Specimens. Another good website for forensic science in general is The Truth About Forensic Science

Remember that it is the State’s burden to prove that the defendant was at fault for the accident. If you can put on strong evidence that the decedent was impaired it is up to the State to rebut that.  There are simply too many variables for the toxicologist to credibly testify as to a definitive state of impairment at the time of the accident.

For more information, 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

Florida Sentencing Guidelines

Florida Criminal Punishment Code Scoresheet

It’s like golf! Less Points = Better!

Am I Going to Prison?

Every criminal defense attorney gets asked this question. From DUI cases to murder cases, every defendant is concerned with their exposure to a prison sentence. In felony cases, if you are found guilty, the length of your prison sentence is typically determined by a simple mathematical calculation.  I will use algebra to explain thereby making this unnecessarily complicated and creating job security.  P = Total Sentence Points.  If P > or = 44 then your recommended prison sentence is calculated as follows, .75(P – 28) .

Florida Criminal Punishment Code Scoresheet

The form for the Florida Criminal Punishment Code Scoresheet is found in Florida Rule of Criminal  Procedure 3.992. The assistant state attorney handling the prosecution of a felony matter is required to complete a Florida Criminal Punishment Code Scoresheet. The Florida Criminal Punishment Code Scoresheet is also known as the sentencing scoresheet. The purpose of the criminal punishment code scoresheet is to provide the court with a “recommended” sentence.

How is it Scored?

Think of sentencing points like a golf score.  The less points you have, the better off you will be.  The sentencing scoresheet assigns a point value to all criminal offenses currently before the court. All felonies are divided into various “offense levels.” The various offense levels can be found in Florida Statute 921.0022. Section 1 is called the primary offense. The primary offense carries the most sentence points out of all charges on the scoresheet. I use a felony DUI in the example below. A fourth(4th) DUI conviction, and all subsequent DUI convictions, are 3rd degree felonies pursuant to Florida Law. Looking at section 1, you can see that a fifth(5th) DUI conviction is a third-degree felony, the statute is 316.193 and the offense level is six. A level VI primary offense earns 36 sentence points. However, a level VI additional offense is only 18 points.

Additional points are added for certain aggravating factors and prior convictions. The assistant state attorney will calculate the total amount of sentence points.  However, the defense attorney needs to check to make sure it is correct.  If the total amount of sentence points is less than 44, the lowest permissible sense is a non-state prison sanction. A non-state prison sanction can include some jail time, probation, community control or a combination of all of the above.

Calculating a Hypothetical Scoresheet

Primary and Additional Offenses: In the example that I use below, John Smith has been arrested for a fifth DUI and possession of cocaine. Both crimes are felonies. The fifth DUI is the primary offense because it is a level VI offense. The possession of cocaine is an additional offense because it is a level III offense. Accordingly, Mr. Smith is assessed 36 sentence points for the DUI and 2.4 sentence points for the possession of cocaine.

Victim Injury: Section 3 deals with victim injury. This area of the scoresheet is a bit more subjective and there is room for a criminal defense attorney to attempt to get less sentencing points. In this example, there was a victim injury and the injury was described as moderate. An additional 18 sentence points are added due to the degree of the injury of the victim.

Prior Criminal Record: Section 4 assigns points based on the defendant’s prior criminal record. In this section, you will find yourself going back to Florida statute 921.0022 in order to find the offense levels for any prior convictions. In the example below I simply put four prior DUIs for the sake of simplicity.

Legal Status: Section 5 assigns points for legal status violations. A legal status is when an individual can be classified as an escapee, and absconder or, amongst others, already incarcerated. Section 6 assigns points for violating terms of pretrial release or probation.

Community Sanction Violation: Section 6 is used quite often because of high recidivism levels. So if an individual is on probation when he or she gets convicted for a new charge,  it will enhance the length of the sentence for the new charge.

Sections 7, 8 and 9 are fairly self explanatory.  These sections are not used as often because they typically apply to much more serious criminal offenses.

If the total sentencing points is greater than 44, you subtract 44 from the total score and multiply times .75 which gives you the minimum amount of prison time. A judge is authorized to sentence a defendant to consecutive maximum terms of imprisonment.  The guidelines are merely suggestions. A Judge may be required to provide a written explanation concerning a deviation from the guidelines under certain circumstances In the example below, the maximum sentence would be 10 years. However, the recommended sentence would be 29.55 months. When you are not a criminal and want a human resource manager for your business, pick Salopek consulting Ottawa. They can help you out so visit them now.

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For more information, 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

DUI License Suspension | Administrative Hearing

DHSMV Forms for DUI Administrative Suspension

DUI Administraitve Hearings in Florida

DUI Administrative Hearings

If you are arrested for a DUI and either 1) blow > a .08 on the Breathalyzer or 2) refuse a chemical test, your driver’s license will be automatically suspended.  The police officer will seize your license and forward it to the DHSMV.  Within 10 days, you need to decide whether to fight the suspension in an administrative hearing or consent to the suspension.

Whatever choice you make, there is paperwork that should be filed with the DHSMV notifying them of your intention.  Please note that a Public Defender’s role is limited to criminal proceedings.  Accordingly, a public defender will not assist you in the administrative suspension.  You must do it yourself or hire a private attorney.

With regard to the DHSMV paperwork, it can be substantial.  I had a difficult time finding the most up to date version of some forms last week.  At least one was not available anywhere I looked online including the DHSMV website.  The Bureau of Administrative Reviews was kind enough to fax one to me.  Despite its reputation as a “Kangaroo Court”, the employees at the Bureau of Administrative Reviews are some of the most helpful and friendly individuals you will run into in this process.  So if you have a question, ask and be nice.  Nevertheless, due to my difficulty getting all the forms quickly, I decided to post them all in one place.  Enjoy.

HSMV 78065 REQUEST FOR FORMAL REVIEW

Download (PDF, 76KB)

This form is used to request a formal or informal review of your administrative license suspension.  If you prevail, you will not receive any “hard time” suspension from the DHSMV.  Although your license may still be suspended if you are found guilty in the criminal proceeding.

HSMV 72034 REQUEST FOR ELIGIBILITY REVIEW

Download (PDF, 52KB)

This form is used to waive your right to a formal review hearing in exchange for ability to get an immediate hardship reinstatement.  This option lets you avoid any “hard time” administrative suspension.  You are only eligible for this if this is your first DUI.  You must show up at the DHSMV Office of Administrative Reviews within 10 days of your arrest with this form and proof of enrollment in the appropriate DUI course.  You will have a hearing in front of a xarelto lawsuits who will determine your eligibility.

HSMV 78066 SUBPOENA/SUBPOENA DUCES TECUM FOR ADMINISTRATIVE HEARING

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Use this document to subpoena police officers and/or other relevant witnesses to the administrative hearing.

For more information, 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

 

At Least 177 Unfiled DUI Cases in Broward County

Fort Lauderdale DUI Defense Attorney

How to Hide Files in Office
Step 1) Create Mess;
Step 2) Tell people that you know where everything is.

Fort Lauderdale ASA Didn’t File 177 DUI Cases

On or about May 14, 2015, a long-term DUI case filing attorney for the Broward State Attorney’s Office was fired for “purposefully” not filing at least 177 DUI cases.  The unfiled cases spanned a 14 year period of time from 1997 to 2011.  When you average it out, it amounts to slightly more than 1 DUI per month over that 14 year period of time.  To put this into perspective, there were 3,133 arrests in Broward County in April, 2015.  Of those 3,133 arrests there were 139 arrests for DUI.  So the failure to file DUI charges was not a frequent occurrence.

Was this purposeful?  Who knows?  What do they mean by the word “unfiled?”  Did they have the evidence to secure a conviction?  Did the State have the evidence necessary to ethically file charges?  If the evidence wasn’t obtained, for whatever reason, there is no way to tell how many cases would have been filed.  So this number may significantly over state the actual number of cases that would have been filed.

How Did This Happen?

These were not routine cases.  It appears that all of the cases fit the same mold.  The typical DUI scenario goes something like this:

  • Traffic stop for random traffic infraction;
  • Officer notices a distinct smell of alcohol, bloodshot glassy eyes and slurred speech;
  • Officer asks defendant to step out of the vehicle and perform standardized field sobriety exercises;
  • Suspect fails standardized field sobriety tests;
  • Suspect is arrested for DUI and asked to submit to a breath test;
  • Suspect submits to breath test with a result of a .08 or higher;
  • Officer provides suspect with a citation which acts as a temporary driving permit for the next 10 days;
  • Defendant posts $500 bond for a first DUI and goes home;
  • Officer submits probable cause affidavit with the breath test ticket to the State Attorney;
  • State Attorney files an “information” which is the document officially charging somebody with a crime.

This is how the “177 unfiled DUI cases” are different.  At least this is how it appears to me based on the information I have.

  • All of the cases involved a car accident;
  • All of the suspects were injured and required medical treatment;
  • None of the suspects were able to provide a breath sample because they were receiving medical treatment;
  • None of the suspects were subjected to a forced blood draw.  A forced blood draw can only be done in cases of death or serious bodily injury;
  • It is reasonable to assume that nobody was serious injured or killed in any of these accidents because there was never a forced blood draw;
  • None of the suspects were arrested.

A suspect can still be charged with a DUI even though the suspect was not arrested. When a suspect is not arrested, the officer submits a “presentment” to the State Attorney.  The officer only submits the probable cause affidavit since there is no citation for the DUI.  The filing attorney at the State Attorney’s office reviews the facts of the case and makes a determination of whether to move forward on the case.

Subpoena for Blood Test Results

Pursuant to Florida Statute 395.3025(4)(d), the State Attorney can request the court issue a subpoena for the suspect’s medical records that were generated as a result of being taken to the hospital.  This includes any toxicology reports which were used for medical purposes.  Prior to the court issuing a subpoena, a suspect must be given 15 days notice of the State’s intent to subpoena records from a 3rd party.  The suspect can object to the production of the documents, including the toxicology reports, within the 15 days.

We Don’t Know What Happened

These “DUI” cases were presentments meaning that nobody had been arrested.  I put the term DUI in quotation marks because we don’t know if the cases were solid DUI  cases with blood alcohol levels over .08.  We don’t know if the cases he didn’t file were garbage cases with .07’s and below.  Personally, I believe that any case below a .10 is garbage and shouldn’t be filed.  We don’t know if a subpoena was ever issued.  If a subpoena wasn’t issued than we don’t know how many of these 177 cases should or shouldn’t have been filed because the toxicology reports are not available.

Assumptions

From what I have read so far, the State is claiming that 177 DUI cases were not filed.  However, the news has not been very specific.  In order for the number 177 to be correct, for these types of cases, you would need to assume that all 177 cases justified a subpoena being issued, that all 177 cases had subpoenas issued and that all 177 cases came back with .08 or higher BAC or a potentially impairing level of a narcotic scheduled under Chapter 893.  After an Assistant State Attorney in the filing division has done all of that, the only thing left to do is sign a piece of paper.  Literally, one signature.  I simply find it hard to believe that a career prosecutor would go through all of the work of collecting the evidence, have a solid DUI case and simply not file it.

For more information, 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

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