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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

Broward DUI Conviction Rate 56%

Florida DUI Conviction Statistics

Data Shows that DUI Cases can be Beat

Can I Beat this DUI Charge?

That is a very typical question for dui defense attorneys. Most potential clients feel that it is impossible to win a DUI case. Statistics say otherwise. Your chances of winning your DUI case depend exclusively on the facts and circumstances surrounding your arrest. However, some counties seem to be a bit for defense friendly than others. The way I typically approach the situation is to tell the potential client my honest opinion based on the information that has been provided by the client. Keep in mind that sometimes the information provided by a client is not the most accurate. It is simply human nature to try to present your case in a fashion that makes you look the best. I’ve never cited to conviction statistics in a client meeting because I did not know the exact figures. I probably still won’t after today because it can set unrealistic expectations.

What do the statistics say?

The statistics actually paint a pretty rosey picture for a DUI defendant in Broward County, Florida. The Florida Department of Highway Safety and Motor Vehicles keeps records on how many DUI citations were issued in a county and keeps records on how those DUI citations were resolved in court. Much to my surprise, there were significant statistical differences in counties throughout the state. So while your odds might be pretty good in Fort Lauderdale, they might not be as good in Ocala. Visit the FLHSMV Uniform Traffic Citation Report to see the reports for the entire State of Florida.

Please keep the following in mind while reviewing the statistics:

  • There will be a certain number of DUI charges that are unresolved at the end of each year due to continuances and the date of the offense;
  • The data below is from year 2013 in order to allow additional time for cases to be resolved and reflected in the annual data;
  • The data is limited to three counties. Broward County, Miami-Dade County and Marion County;
  • The term “guilty” does not mean guilty of DUI;
  • “Guilty” as used below means a finding of guilt as to DUI, another traffic criminal matter charged with the DUI or a reduced charge from the DUI;
  • For example, if an individual is charged with DUI and he or she takes a plea to reckless driving, that still counts as a guilty.  This inflates the amount of individuals who are found “guilty” without disclosing how often the state reduces the charge.

Broward County DUI Arrest Data 2013
TOTAL ARRESTS:  3974
TOTAL PENDING DISPOSITION: 581
TOTAL DISPOSSED: 3393
TOTAL GUILTY: 1885 (56%)
TOTAL NOT GUILTY: 48 (1%)
ADJUDICATION WITHHELD BY JUDGE: 131 (4%)
TOTAL DISMISS OR NOLLE PROS: 1328 (39%)

Palm Beach County DUI Arrest Data 2013
TOTAL ARRESTS: 3034
TOTAL PENDING DISPOSITION: 969
TOTAL DISPOSSED: 2065
TOTAL GUILTY: 1343 (65%)
TOTAL NOT GUILTY: 31 (2)
ADJUDICATION WITHHELD BY JUDGE: 5 (<1%)
TOTAL DISMISS OR NOLLE PROS: 684 (33%)

Marion County DUI Arrest Data 2013
TOTAL ARRESTS: 915
TOTAL PENDING DISPOSITION: 31
TOTAL DISPOSSED: 884
TOTAL GUILTY: 737 (83%)
TOTAL NOT GUILTY: 10 (1%)
ADJUDICATION WITHHELD BY JUDGE: 6 (1%)
TOTAL DISMISS OR NOLLE PROS: 131 (15%)

Statistical Interpretation

The Florida Department of Highway Safety and Motor Vehicles has this information readily available for the years 2011 through 2014. Over the course of those four years, the annual arrest total by county varies, but not significantly. However, the percentages remain very close to the same in all categories.

Why?

Why does Marion County, Florida have an 83% conviction rate? Why does Broward County, Florida show a conviction rate of 56%? There are several plausible explanations for the variations between counties. Are conviction rates higher in smaller, more conservative, rural areas due to the composition of the jury pool? Are larger counties precluded from devoting substantial resources towards DUI enforcement due to other prosecutorial priorities? The statistics don’t tell us why.

All that we know, based on statistical data alone, is that Broward County has a 56% conviction rate and that includes all of the convictions for lesser offenses such as reckless driving. Marion County has an 83% conviction rate. The statistics above clearly show that DUI’s can be beat and criminal defense attorneys are winning DUI cases on a regular basis. Hiring a criminal attorney with substantial DUI experience can have an enormous impact in the outcome of your case. Make no mistake about it, the odds are still stacked against you, but a good DUI attorney, you can level the playing field.

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.

Download (PDF, 137KB)

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 hearing officer who will determine your eligibility.

HSMV 78066 SUBPOENA/SUBPOENA DUCES TECUM FOR ADMINISTRATIVE HEARING

Download (DOCX, 13KB)

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