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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

Adjudication Withheld | Collateral Consequences

Adjudication Withheld

Adjudication Withheld

Florida Statute 948.01 gives the trial court discretion to “withhold adjudication” after imposition of a sentence of probation in felony cases.  You are supposedly spared the collateral consequences of a criminal conviction if adjudication is withheld.  There are several benefits to having adjudication withheld.  You can say that you have never been convicted of a crime on employment applications. Your keep your civil rights.  You are eligible to have your record sealed after you complete probation and pay all court costs and fines.  Having adjudication withheld would appear to be a “get out of jail free” card or a “free pass.”  However, a withhold of adjudication is not without collateral consequences.  Don’t let the following talk you out of accepting a withhold of adjudication.  Talk to your lawyer about the decision.  A withhold is almost always better than an outright conviction.

Adjudication Withheld -When You Can’t

The Florida Legislature has been slowly eating away at the offenses that qualify for a withhold of adjudication.  Adjudication cannot be withheld for a First Degree Felony.  Adjudication cannot be withheld in Second Degree Felonies unless one of the two following conditions is met:

  1. The prosecutor must file a written motion with the court requesting that adjudication be withheld; or
  2. The court makes written findings of fact that the facts and circumstances of the case warrant a withhold of adjudication.  In making this finding, the court is required to look to the criteria found in Florida Statute 921.0026.

Third degree felonies are typically eligible to have adjudication withheld.  However, if you have had adjudication withheld on two prior felony offenses, you are not eligible to get a withhold of adjudication.

The court is prohibited from withholding adjudication in certain criminal offenses.  You are not eligible to receive a withhold for the following offenses:

  • Florida Statute 784.07 – Assault or Battery of a Law Enforcement Officers, Firefighters, Emergency Medical Care Providers, Public Transit Employees or Agents, or Other Specified Officers;
  • Florida Statute 316.1935 – Fleeing or Attempting to Elude a Law Enforcement Officer; Aggravated Fleeing or Eluding;
  • Florida Statute 316.193 – Any criminal offense involving a violation of Florida’s Driving Under the Influence Statute.

This is not a complete list of specific exclusions. These are the statutes that I know off the top of my head.

Adjudication Withheld – When it Doesn’t Count

Sentencing Enhancements:

Although Florida Law authorizes a Judge to withhold adjudication in his/her own discretion, the Florida Legislature also instructs the court to disregard a withheld adjudication and treat it as a prior conviction for certain crimes.  A prior withhold for a driving while license suspended will be treated as a conviction in future driving while license suspended cases.  The same is true with a withhold in petit theft cases.

Federal Law:

Federal Law does not recognize a withheld adjudication.  There is no comparable provision under Federal Law.  If you received a withhold of adjudication in a felony case under Florida Law, you are a convicted felon under Federal Law.  While Florida Law permits an individual to own a firearm if adjudication is withheld, Federal Law does not.  So you can be charged federally for convicted felon in possession of a firearm notwithstanding the withhold.

The same is true with immigration.  Criminal convictions can have severe immigration consequences.  A withhold on a crime of “moral turpitude” can still result in deportation since Federal Law does not recognize a withheld adjudication.

Foreign Countries:

Foreign countries do not have to and, in my experience, typically treat a withheld adjudication as a criminal conviction.  Countries can and do refuse to grant tourist visas to individuals convicted of certain criminal offenses.  You can typically come and go as you please at the Mexican Border.  I don’t even remember somebody checking my ID most times that I went across the Mexican Border.  However, Canada is a bit different, meaning that they, sometimes, actually check your background.  People are regularly denied admission to Canada for misdemeanor convictions.  Canada may or may not honor the withhold.  If you have a withhold, it would be good idea would be to check to make sure you are admissible before you travel to a foreign county.

Ft. Lauderdale criminal attorney, Michael Dye, handles cases with complex sentencing issues.  Mr. Dye has been able to obtain favorable sentences for clients including downward departures, alternative sentences and numerous withheld adjudications.  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.

Drug Court | Broward County Drug Court Treatment Program

Broward County Drug Court

Drug Court Works

The Broward County Drug Court Treatment Program is a pretrial intervention program designed to break the cycle of drug addiction which is crippling the criminal justice system.  Broward County’s Drug Court program is the second oldest in the State of Florida and the third oldest in the nation.  Broward County’s drug court diversion program is divided into felony drug court and misdemeanor drug court.  The Broward County Circuit Court handles felony drug court while the County Court handles misdemeanor drug court.

Drug Court is an Alternative to Punishment

Florida Statute 921.002(1)(b) states that the primary purpose of criminal sentencing is to punish the offender and that rehabilitation is secondary to the goal of punishment.   While completing drug court is not easy, a defendant who completes either felony or misdemeanor drug court will typically be eligible to have his or her criminal record expunged.  Drug court puts rehabilitation first.  Accordingly, the concept of drug court appears to be at odds with Florida Statute 921.002(1)(b).  Nevertheless,  Broward County Drug Court has been in existence for 25 years.   There is no current legislative effort to put an end to drug court and, to the best of my knowledge, there never has been any effort to put an end to drug court.  The reason why there is no legislative push to end drug court is because it works.  Broward County’s Drug Court Treatment Program would have been eliminated long ago if had a high recidivism rate or allowed criminal behavior to continue unchecked.  As such, the legislature appears to have turned a blind eye to drug courts across the State of Florida.

Am I Eligible for Drug Court

Different Circuits have different rules.  In order to be eligible for Broward County’s Drug Court Treatment Program, you must be over 18, have no prior felony convictions and be charged with a second or third degree felony related to a purchase, attempted purchase or possession of a personal quantity of a scheduled controlled substance listed in Florida Statute 893.033.  Drug court is designed to assist individuals with drug problems not drug dealers.  Accordingly, any allegation of an intent to sell or deliver to another individual is typically disqualifying.

How do I get Drug Court

Individuals are screened for the drug court program beginning at the time of arrest.  A case is typically assigned to drug court by the intake attorney at the Office of the State Attorney.  If, for some reason, you qualify, but are not placed in drug court, your attorney can file a motion to transfer your case to drug court

Advantages of Drug Court

A conviction for possession of any type of illegal drug can have devastating consequences on an individuals future.  In the Broward County Drug Court Treatment Program, a defendant only waives his or her right to a speedy trial.  A defendant may be eligible to seal or expunge his or her criminal record upon successful completion of drug court.

Decriminalization of Marijuana | Broward County

Decriminalization of Marijuana

Decriminalization of Marijuana in Broward               County, Florida

On November 10, 2015, the Broward County Commissioners passed ordinance number 2015-45. The recently passed ordinance gives police officers in Broward County the discretion to issue a civil citation in lieu of a misdemeanor criminal charge for possession of less than 20 grams of marijuana. Despite the language used to describe it, this ordinance is does not constitute decriminalization or the legalization of marijuana.

Is this Legalization of Marijuana?

No. Possession of less than 20 grams of marijuana is still illegal pursuant to Florida Statute 893.13 People are still getting arrested for misdemeanor possession of marijuana in Broward County every day.  A state criminal statute is superior to a municipal ordinance. The Broward County Commission does not have the legal authority to, and did not attempt to, invalidate Florida statute 893.13.

The Broward County ordinance does not “decriminalize” possession of marijuana.  Possession of any amount of marijuana is still illegal under federal and state law.  The recently passed ordinance does provide a discretionary noncriminal means of enforcement.  Police officers have always had broad discretion when making an arrest decision for misdemeanor possession of marijuana. The officer now has the option to charge misdemeanor possession of marijuana civilly as opposed to criminally.  Prior to the effective date of November 17, 2015, a police officer in Broward County had the following options when making an arrest decision for misdemeanor possession of marijuana:

  • Make a formal arrest and take the suspect to jail;
  • Issue a Notice to Appear for a misdemeanor criminal offense;
  • Confiscate the marijuana and take no further action.

Now that the ordinance is effective, a police officer in the exact same situation has a fourth option:

  • Make a formal arrest and take the suspect to jail;
  • Issue a Notice to Appear for a misdemeanor criminal offense;
  • Issue a civil citation for a violation of the Broward County Code;
  • Confiscate the marijuana and take no further action.

Not Decriminalization Not Legalization

In reality, nothing has changed. When someone is arrested for possession of marijuana, it is usually not the only criminal charge. Marijuana charges typically come in two’s. Possession of marijuana and possession of drug paraphernalia.  Somewhere back in time an unknown police officer came up with the idea that the plastic bag holding your marijuana could be charged as drug paraphernalia.  The Broward County ordinance does not address possession of drug paraphernalia. However, since possession of drug paraphernalia is a misdemeanor, the police officer has the discretion to simply not charge you at all.  The probability that you will be charged criminally for both possession of marijuana and possession of drug paraphernalia has a strong correlation to how big of a jerk you are to the police officer.

Odor of Marijuana | Automobile Exception

The outright legalization of marijuana would significantly curtail police action. The police regularly use the odor of marijuana as a basis to search a vehicle without a warrant.  That is known as the “automobile exception.”  The Broward County municipal ordinance does not overrule the automobile exception to the warrant requirement.  The police are still legally allowed to search your vehicle if they smell marijuana coming from the inside of the vehicle.

Below is a copy of the ordiance number 2015-45.  Visit https://www.municode.com for the complete Broward County Code.

Download (PDF, 2.61MB)

Broward County criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation.  For more information concerning possession of marijuana and other drug charges, 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 DUI Laws | Changes are Needed

Florida DUI Laws

Florida DUI Laws | The War on Drugs

Florida DUI Laws & The War on Drugs

Florida DUI laws and the war on drugs are unnecessarily inextricably intertwined with one another.  Florida Statute 316.193 states:

“(1) A person is guilty of 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:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;”
Accordingly, an individual can only be convicted of DUI if that individual is impaired by 1) alcoholic beverages, 2) chemical substances enumerated in Florida Statute 877.111 or 3) controlled substances specifically listed in Chapter 893 Florida Statutes.

The Problem with Chapter 893

Florida Statute 316.193 prohibits driving while impaired by drugs by referencing Florida Statute Chapter 893.  The problem is that Chapter 893 Florida Statutes does not contain all psychoactive substances that can impair an individuals ability to drive a vehicle.  There are some glaring omissions in Chapter 893.  For example, Ambien, generic name zolpidem, is not a controlled substance under Florida Law.  Ambien is a federally controlled substance, but the Florida DUI statute does not specify substances controlled under federal law.  Also excluded from Florida’s DUI statute are over the counter substances such as dextromethorphan and diphenhydramine.  It is possible to be charged with other offenses while high on unscheduled substances.  You might be convicted of reckless driving or vehicular homicide, if somebody dies, but you cannot be convicted of DUI.

Where DUI and The War on Drugs Meet

In order for a substance to be a “DUI eligible” substance it must be a controlled substance under Chapter 893.  A substance must come to the attention of state lawmakers in order for a substance to be listed in Chapter 893.  Accordingly, Florida DUI laws regarding drugs are reactive.  Admittedly, there is no way to create a statute that will specifically enumerate all substances capable of impairment.  However, the law, as written, does not take into account the changing nature of the recreational pharmaceutical market.  The law addresses the issue on a substance by substance basis.  The law is ineffective against specific drugs until such time as that specific drug causes a problem.

Currently, the only way to make a substance “DUI eligible” is to place it on the controlled substance list.  However, reactively adding new substances to the controlled substance list is unnecessary if impairment wasn’t limited to controlled substances under Chapter 893.  Florida Statute 316.193 needs to be changed unless the legislature wants to go back to the drawing board every legislative session when a new concoction rolls out.

Changes Needed

No drastic changes are needed to change the current statute to a statute that evolves as legal and illegal drugs are developed and hit the market.  This is the change that I would propose:

“(1) A person is guilty of 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:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893 a controlled substance under Chapter 893 Florida Statutes or any other drug or psychoactive substance capable of impairing a person’s physical or mental faculties, or any combination of said substances, when affected to the extent that the person’s normal faculties are impaired;”

The revision, as written above, eliminates the continuous need to amend Chapter 893 Florida Statutes in order to incorporate new substances into the DUI statute.  Not only is it efficient, but it also effectively closes the over the counter loop hole in Florida’s DUI Laws.

From a defense perspective, this really doesn’t change anything.  The state still has the burden to prove that there was a substance in the driver’s system and that the substance is capable of and did impair the defendant’s ability to drive a car.  This is not a metabolite DUI statute.  The state would still have to perform lab tests on blood and urine.  The belief that this would somehow permit a DUI conviction based on the unsubstantiated belief of a police officer does not have any merit.

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