Drugged Driving | DRE | Drug Recognition Expert

July 15, 2014 by
DUI Lawyer DRE

Detecting DUI Drug Impairment

Drug Recognition Expert Testimony

The Drug Recognition Expert program was developed by the Los Angeles Police Department in 1979. With the growing rise in illicit drug use prosecutors were often not able to successfully prosecute an individual for DUI if the defendant was not impaired by alcohol. The DRE program was designed to assist police officers in determining the type of substance which is impairing a driver. The Drug Recognition Expert is allowed to testify as to his findings as an expert witness. This means that he is allowed to give an “expert opinion” as to what substance impaired the driver. DRE testimony in and of itself may be useful to the prosecution in certain cases where impairment is clearly from a certain controlled substance. An example would be an empty bottle of 90 xanax in the driver’s name filled 30 minutes before the time of the stop which is laying in the center console while the driver is passed out at a stop light. However, it doesn’t take an expert to reach a conclusion in such a scenario. Drug recognition expert testimony is most powerful in conjunction with scientific testing of blood or urine. DRE testimony has glaring holes even in conjunction with the testing of biological fluids.

Not All Judges are Buying It

Several courts have held that the 12 step drug recognition expert protocol does not pass the Frye Test as it is not widely accepted by the scientific community. As such, certain courts will not permit a drug recognition expert to testify as to his findings.

For Good Reason

One particular case arising out of Maryland in 2012 specifically highlighted the problems with the DRE protocol. Initially, 12 step examination of a suspect is not standardized. This means that a drug recognition expert does not have to perform the 12 step examination on every single individual he investigates. The DRE has the unfettered discretion to utilize the steps that he wants and to discard the remaining. However, the 12 step process is “preferred.” A DRE will not change his opinion even if scientific testing of a biological fluid reveals no impairing substances. The rational provided is that there are limitations on what laboratories can and cannot detect. While this is true, the proponents of DRE testimony and its accuracy would have the court and jury believe that a non-standardized optional 12 step evaluation conducted by a non-medical professional which is not corroborated by any other evidence is somehow more sophisticated and advanced than the current scientific techniques used by the crime laboratories.

In its opinion, the court further elaborated that the DRE training program improperly classified certain drugs into single categories, misstated the physical and mental effects of certain drugs. The court excluded the DRE testimony ruling that any opinion based on the DRE training given at the time was specious at best.

Drug Recognition Expert Ruling

Hire an Attorney Who is Experienced in Defending DUI Drug Cases

Your choice of an attorney can make or break your case.   Especially when your case concerns scientific and quasi scientific evidence.  This is a complex area where science meets law and there are not many attorneys that have any additional training or experience to handle these types of cases.  You might not remember whether you were examined by a DRE under certain circumstances.  Accordingly, if you are arrested for a DUI by drug impairment, you should always consult an attorney who is familiar with the science behind the drug testing and the DRE protocol.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #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

Filed Under: DRE, Drug Recognition Expert, DUI Drug, DUI Lawyer Tagged With: , , ,

Drugged Driving | Urinalysis | Metabolite DUI

July 5, 2014 by

DUI Lawyer Explains the Limitations of Urinalysis in DUI Drug Cases

Blood, urine and hair are the three commonly accepted methods drug testing.  Pursuant to Florida Law, law enforcement is limited in its ability to secure a blood sample from a suspected impaired driver and hair follicle testing is not an approved test for DUI investigations.  Accordingly, when it comes to DUI under a drug impairment theory, a urinalysis is typically used to determine the presence of an impairing substance.  There are exceptions with regard to blood and the police may obtain a blood sample for testing under limited circumstances.

A DUI drug case with a urinalysis as evidence of impairment should be difficult if not impossible for a case to prove.  A urinalysis is incapable of determining when substances were ingested. It is an established fact that a urinalysis will yield a positive test result for impairing substances long after the cessation of impairing effects.

A basic understanding of human physiology is required to understand why a urine test cannot prove impairment. In addition to human physiology, it is necessary to have a general understanding of the scientific principals behind the testing methods. With regard to physiology, the issue comes down to the difference between the renal system and the circulatory system. With regard to the scientific principals, it is imperative to know what constitutes a positive test result.

Regarding the systems, there are three main points to remember. Point 1: The renal system produces and eliminates urine. Point 2: The circulatory system can be looked at as a blood distribution network. Point 3: For the purposes of a DUI urinalysis, there is no correlation between the renal and circulatory systems.

For purposes of determining the impairment of an individual, the only thing that matters is what substances are in the blood. As such a urinalysis testing for impairing substances is an indirect test. In order for a urinalysis to be useful as an indirect test, there must be a correlation between what is found in the urine and what is contained in the blood. As stated above, there is no correlation between the two. Urinalysis in a DUI case will almost always be a qualitative analysis meaning that the lab only tested for the presence of a given substance. A qualitative analysis of urine gives no information as to whether a suspect is impaired. It does not tell how much or when a drug was ingested. The results are simply a “marker” indicating prior exposure to a substance. Performing a quantitative analysis is possible, but it is also pointless. Determining how much of a given substance is present in a suspects urine is irrelevant because of the lack of correlation between urine and blood.

The amount of time that it takes a drug to be undetectable in urine varies by drug. A classic example of this is marijuana. Marijuana’s effects typically last for two to three hours. However, marijuana’s metabolites are highly fat-soluble. Therefore, the THC and metabolites are stored in body fat. Individuals can show up positive on a urinalysis for a DUI up to four weeks after smoking marijuana. The actual length of time depends on the frequency of use and amount used.

While marijuana is an extreme example detection times, other drugs render the results of a urinalysis in a DUI irrelevant. For example, the metabolites of cocaine can be detected in urine for two to five days after use. Likewise, amphetamines have a short detection window, but can still be found in urine up to five days after use.

Drug metabolism is the breakdown of the parent compound into metabolites. A parent compound is the actual substance that is ingested. A metabolite is the byproduct of the parent compound when the parent compound is “broken down” through the biochemical process after ingested.

Metabolites can be divided into two categories for purposes of a DUI. A metabolite can either be active or inactive. In simple terms, an active metabolite of an impairing substance will have an impairing effect. An inactive metabolite is simply a marker of prior use and has no impairing effect on the individual.

A problem arises in DUI urine testing when an inactive metabolite yields a positive result on a urinalysis. For example, the main metabolite of marijuana is THC-COOH. THC-COOH is a nonpsychoactive substance and highly fat soluble. As such, THC-COOH has no impairing effect on an individual. However, it is detectable in urine for 3 to 4 weeks after using marijuana. The vast majority of tests currently used to determine if an individual has ingested marijuana do not test for THC and do not test for active metabolites of THC. The preliminary and confirmatory tests do not test for any substance that would cause impairment. Accordingly, if an individual tests positive for marijuana, he or she has only tested positive for the inactive metabolite of marijuana. The only thing that this would prove is that the individual smoked marijuana sometime within the last 3 to 4 weeks.

There is a four point analysis to defending a DUI urinalyses case. Issue 1: It is crucial to know exactly what substance is being tested for in the urinalysis. Issue 2: Research what exactly constitutes a positive result. Issue 3: Assuming the test is accurate, identify the time range in which the substance could have been ingested. Issue 4: Compare the known effect of the drug on an individual’s behavior. Compare the known effects against the DUI video, the officer’s report and a DRE report if any.

In order for the state to prove a DUI, the state must prove that an individual was impaired. Urinalysis alone can not prove impairment. The results of a urinalysis should be considered by an attorney defending a DUI case. However, with an effective cross examination of the State’s expert, the results of a urinalysis usually do not carry much weight.

For additional information, please contact DUI Lawyer Michael Dye at:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #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

Filed Under: DUI Drug, DUI Lawyer, Metabolite DUI, Uncategorized, Urinalysis Tagged With: , , , , , , , ,

Police Must Have Warrant to Search Cell Phone Data

June 30, 2014 by

POLICE CAN NOT SEARCH YOUR CELL PHONE WITHOUT A WARRANT (WITH EXCEPTIONS AS ALWAYS)

On June 25, 2014, The Supreme Court of The United States issued its opinion in the case of Riley v. California.  The court combined the cases of Riley v. California and United States v. Wurie as the two cases presented identical issues.

Both cases involved the police searching an individual’s cell phone after the individual had been lawfully placed under arrest.  The police did not just physically search the cell phones, but rather searched the data inside the cell phones in furtherance of their investigation and in order to find potentially incriminating information.  In the Riley matter, the search of the cell phone revealed that the defendant was a member of a street gang and also involved in a shooting.  Riley was convicted of the shooting and received a sentencing enhancement for being a member of a street gang based off of the information police obtained from his cell phone.  In the Wurie matter, the police accessed the call log on the defendant’s telephone and traced certain numbers with suspicious activity.  As a result, Wurie was charged and convicted of several drug and firearms offenses.

The Fourth Amendment of the United States Constitution protects an individuals right to be secure in their person and property.  It prohibits searches without a warrant signed by a neutral and detached magistrate specifically stating the items to be found and where the items are to be found.  There are limited exceptions to the “warrant requirement.”  A warrantless search, and the information derived therefrom, is only admissible if the warrantless search falls within a specific exception to the warrant requirement.

One specific exception to the warrant requirement is “search incident to lawful arrest.”  However, the search is limited to the area within the arrestee’s immediate control.  The search is justified for the purposes of officer safety and to prevent the destruction of evidence.  When asked to extend the search incident to lawful arrest to cellular phones, the Supreme Court ruled that a search of the digital information on the phone does not serve the government’s two purposes for warrantless searches.  The search of the digital information on the phone is not justified as a means to protect officer safety.  While it could possibly be argued that there is a potential for the destruction of evidence, that is balanced against the individuals privacy interest which, when it comes to the search of the data on a phone, is significantly greater than a brief physical search.  Nevertheless, the Supreme Court found that the data stored on cell phones does not present a threat to officer safety or a potential for the destruction of evidence.

While the digital data stored by a cell phone does not present any imminent threat to an arresting officer’s safety, the officer is still free to examine the physical features of the cell phone in order to ensure that it cannot be used as a weapon.  While the destruction of evidence via “remote wiping” is certainly a possibility, the Supreme Court does not rule out the ability of the police to disable a telephone in order to prevent remote wiping and secure the scene.  The court also provides for the police to search an individual’s telephone without a warrant under the exigent circumstances doctrine.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #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

Filed Under: 4th Amendment, Criminal Lawyer, Search and Seizure Tagged With: ,

The Ambien Defense in Florida | DUI | Drugged Driving

June 21, 2014 by

DUI and the Ambien Defense in Florida

Ambien is the trade name for Zolpidem which is one of the most frequently prescribed sleep medications in the United States. Ambien is in a class of drugs called sedative hypnotics. Often referred to as “tranquilizers”, sedative hypnotic drugs have the effect of slowing down the bodies functions. Other drugs included in the sedative hypnotic category are benzodiazepines such as Xanax, Valium, Ativan and Rohypnol. While certain sedative hypnotics are approved to be used therapeutically for multiple reasons reasons such as anxiety disorder or seizures, the only approved use of Ambien is as a sleep medication.

Ambien has a fast onset of action. Generally, from the time a patient ingests Ambien until the point where the patient loses consciousness is less than 15 minutes. However, unconsciousness can occur in 5 minutes or less. Accordingly, it is advised that an individual only take Ambien when he or she is ready to go to sleep. The Ambien Defense in Florida Florida’s DUI Statute is Florida Statute Section 316.193. The State must prove all of the following, beyond any reasonable doubt, in order for an individual to be convicted of DUI in the State of Florida:

  1. The defendant must be in “actual physical control” of a motor vehicle within the State of Florida;
  2. The defendant, at the time of being in actual physical control, is under the influence of (1) alcohol; or (2) a chemical compound listed in Florida Statute 877.111; or (3) a controlled substance listed in Chapter 893 Florida Statutes;

Alcohol and chemical compounds in Florida Statute 877.111 do not need to be address for this discussion.

DUI Drug Impairment Pursuant to Florida’s DUI Statute

Pursuant to Florida’s DUI statute, the state bears the burden of proving the specific drug that caused the defendant’s impairment. The state must be able to identify the specific drug because it must be listed in Chapter 893. It is not a crime for a person to operate a motor vehicle in the State of Florida while impaired by a substance that is not listed as a controlled substance in Chapter 893.

There are both federal and state drug laws and these laws are not necessarily the same. For example, marijuana is still illegal under federal law, but not under the law in Colorado. So while marijuana is a Schedule I controlled substance under federal law, it is not a controlled substance under Colorado Law.

Likewise, Ambien is a Schedule IV Controlled Substance pursuant to federal law. However, Ambien is not listed as a controlled substance under Florida Statutes Chapter 893. Therefore, driving under the influence of Ambien alone is not a crime since it is not a controlled substance under Florida Law.

Other Issues to Consider

It is very common for individuals with a prescription for Ambien to have prescriptions for other controlled substances. Many are prescribed benzodiazepines for anxiety disorder. Others may have a prescription for a benzodiazepine for use as an anticonvulsant or a prescription for an opioid pain medication. Although rare, some individuals may even have a prescription for some type of barbiturate.

We almost always end up with a urinalysis as the test for DUI drug cases in Florida due to the statutory restrictions on blood draws. The Ambien defense is much harder to assert when there are multiple metabolites for other controlled substances in an individual’s urine sample. The defense attorney needs to remember that there is no correlation between what substances are found in the urine and what substances are found in the blood. The state will typically attempt to rely on a “co-administration” theory when there are multiple controlled substances detected in the urine. However, absent non-scientific evidence identifying the times of ingestion, it is essentially impossible for the state to prove co-administration. Typically the drugs that appear in conjunction with a positive urinalysis for Ambien are other types of sedative hypnotics. Accordingly, the two will have similar symptoms. As an example, it is essentially impossible for the state to prove that an individual was under the influence of Xanax when the urine sample tested positive for both Xanax and Ambien because the pharmacodynamics are the same, although a much larger than normal dose of Xanax.

In addition to other controlled substances, there are numerous over-the-counter, non-narcotic prescription drugs and even foods that have been proven to inhibit the metabolism of Ambien and/or resulting in blood levels far in excess of a therapeutic dosage.

Disclaimer: The above is not intended to be construed as legal advice. Each case is different and you should discuss the facts and circumstances of your case with your attorney. In addition, the above is not intended to be a scholarly article on analytical chemistry. Statements regarding urine testing included above are dramatically simplified and do not include any discussion of the testing procedure or methodology. Significant additional reading and study is necessary prior to attempting to cross-examine the State’s expert.

For additional information or to discuss the details of your case, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #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

Filed Under: Ambien, DUI Drug, Zolpidem Tagged With: ,