Marijuana DUI | Florida Law

February 2, 2017 by
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. You can find the latest news about cannabis at Midas Letter Cannabis Stock news.

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

Filed Under: Blood Test, Criminal Lawyer, DUI, DUI Drug, DUI Drug, DUI Lawyer, DUI Legislation, Florida Legislature, Florida Legislature, Florida Statute 316.193, Legislation, Marijuana, Metabolite DUI, Urinalysis Tagged With: , , , , , , , , , , , , , , , , ,

DUI Manslaughter Defense

September 15, 2015 by
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 and also you could get a Dui Lawyer Orlando to help you rest your case, so everything is easier.  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

Filed Under: 8th Amendment, Autopsy, Blood Test, Criminal Lawyer, Cruel and Unusual Punishment, Discovery, Drugged Driving, DUI, DUI Drug, DUI Drug, DUI Lawyer, DUI Legislation, DUI Manslaughter, Evidence, Florida Statute 316.193, Medical Records, Strict Liability Statute, Subpoena Duces Tecum, United States Constitution, Urinalysis Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , ,

What is Flakka? | The Truth About A-PVP

July 29, 2015 by
Flakka

Not Even Once

Is Flakka as Dangerous as it Sounds on the News?

Yes and no, but mostly yes.  Let’s start with what exactly flakka is. Flakka is alpha-pyrrolidinovalerophenone, but let’s call it A-PVP. A-PVP is a cathinone. Flakka is a Schedule I Controlled Substance under Florida Statute Chapter 893.03 which means that there is no currently accepted medical use for it and the potential for abuse is high. It is also a Schedule I controlled substance on the Federal Register which has essentially the same criteria. The terms A-PVP and flakka will be used interchangeably throughout.

Disclaimer:

There are some of you who may read this and can speak nerd/science jargon better than I can.  Not many, but some.  You will inevitable go back onto a drug bulletin board saying that I don’t know what I am talking about and spreading misinformation, we should be having a consultation.  Delivering information that it not hyper-analytical so it can be processed by the public is neither ignorant or misleading.  While this might not be PhD level chemistry or pharmacology information, it was not intended to be.  The only point I am trying to get across is DON’T USE THIS CRAP!

Misinformation on Flakka

The only stories that you hear on the news are the truly bizarre incidents.  So keep in mind that the local news only shows stories that sensationalize the topic. You will never hear “BREAKING NEWS AT 6 O’CLOCK! High School Student Kevin Smokes Flakka and Says it was Pretty Cool, but Wouldn’t do it Again!” Instead you will hear “BREAKING NEWS AT 6 O’CLOCK! MAN ON $5 DRUG THAT CAUSES INSTANT INSANITY IMPALES NUTSACK ON FENCE POST! ZOMBIE APOCALYPSE IS UPON US!”

Flakka and the current flakka hysteria is similar to bath salts and how bath salts were viewed and portrayed just a few years ago. Remember when bath salts were going to turn people into flesh eating zombies? There was the Miami cannibal attack that turned out to be a case of “this dude is crazy” rather than bath salt intoxication? Yet, that didn’t stop the bath salt hysteria.  There is also my personal favorite, a man in Pennsylvania got out of his car, ran down the street into an occupied residence(thereby committing a felony), was chased out of said house and jumped onto a police car causing damage to the police vehicle. Why? Because he was high on bath salts, believed his car was melting and that he was being chased by electricity.

So enjoy the news for what it is.  It is not an accurate depiction of the ordinary experience.  Watch this video and take a look at the recent “newsworthy” flakka incidents in South Florida.

The Sun-Sentinel is an extremely reputable and reliable news source in South Florida. What did it show?  A guy running naked in the middle of an intersection, a guy trying to break into the police department, a guy diving over a spiked fence with no regard for the safety of his testicles, some guy running around naked on his roof and some truly despicable person that attacked an old lady in her home when he was high.  I’m not going to bother to look, but chances are that guy had a violent history to begin with.  So the media’s portrayal of flakka is skewed.

Q: Ok, so if we are being mislead and Flakka isn’t that dangerous, it is OK to try it right?

Let’s Hear from Broward County Sheriff Scott Israel

“In my 36 years in law enforcement, I’ve never seen a drug this dangerous.”

Q: “I know, but he is the Sheriff and he has to say drugs are bad. Is he exaggerating?”

A: No. He is not. Flakka really is that bad.

Anybody who knows me knows that I wouldn’t say that if I didn’t truly believe it. I’ll spare everybody the speech on unregulated Chinese laboratories and quality control. The manufacturers appear to be doing a fantastic job. Make no mistake about it, I firmly believe that A-PVP and its predecessor MDPV are two of the most, if not the most, addictive substances on the face of the planet. While recovery from stimulant addiction is not nearly as debilitating as opiate addiction, the length of time from first use to addiction is faster. Cocaine is widely regarded as the drug with the quickest path to addiction. I disagree. In my experience concerning, flakka and MDPV, users go from experimenting to full blown addiction in a matter of days. While flakka won’t eat your skin away like homebrew desomorphine, it will still destroy your life. Quickly.

In order to understand why flakka is so dangerous you first need to understand the different types of commonly used recreational stimulants and how those stimulants affect your mind and your body. There are four(4) primary types of recreational stimulants. There is cocaine, amphetamines, methylphenidate and cathinone’s. Each of those classes has what are called analogs, isomers and/or derivatives which are structurally similar and have similar effects.  We are going to ignore methylphenidate and its related compounds for this discussion. For some reason, there has never been much in the way of recreational use of cocaine analogs. However, they are freely available and, for the most part, are not scheduled controlled substances. For amphetamines there are different types of amphetamines such as methamphetamine, dextroamphetamie and 4F-amphetamine. There are literally hundreds of amphetamine analogs that are not scheduled and legally available. There is also a wide variety of substances that fall under the cathinone variety such as MDPV, BK-MDMA, Mephedrone, Methylone and even the antidepressant Wellbutrin. Some legal, some not.

How Stimulants Work

All stimulants work in essentially the same way. Stimulants increase the amount of three neurotransmitters in your brain. Those neurotransmitters are dopamine, serotonin and norepinephrine. Dopamine is believed to be the primary neurotransmitter affected by stimulants. Your body and mind associate dopamine with pleasure. The more dopamine that is present in your synapsis, the more pleasurable the activity.  When you are taking part in a pleasurable activity your brain naturally releases more dopamine into your synapsis thereby making the experience pleasurable. As the pleasurable activity ceases to exist or ceases to take place the dopamine is reabsorbed and you go back to a normal mood.

When it comes to stimulants, there are two ways to increase the amount of dopamine in your synapsis. You can produce more thereby flooding the synapsis with dopamine.  This is the way that amphetamines operate. Think of filling up a bucket with water. The bucket is the synapsis and the water is the dopamine. When you take methamphetamine, dextroamphetamine or any other type of amphetamine that chemical compound is telling your brain to pump more dopamine into the synapsis. (Note: I know that ALL amphetamines don’t necessarily act like this. Ecstasy is in the amphetamine class and it releases more serotonin than dopamine, but don’t be so picky and just humor me on this one.)

The second way to increase the amount of dopamine in your synapsis is by not allowing it to leave. Normally dopamine is released into the brain, does its job and is reabsorbed. Cocaine prevents dopamine from being reabsorbed. That makes cocaine a dopamine reuptake inhibitor. Cocaine will let dopamine in but will not let it out. Cocaine forces dopamine to remain in the synapsis and accumulate.

Synthetic Cathinones

There are numerous types of synthetic cathinones and not all of them work the same way. Certain synthetic cathinones, such as methylone, have a more serotogenic effect(huggy, kissy, cuddly) than a dopamine effect. However, the compounds related to pyrovalerone such as MDPV and A-PVP appear to focus primarily on dopamine and norepinephrine.  The increase in norephinephrine is an important concern to law enforcement as norepinephrine provokes the “fight or flight” reaction in people. An increase in norepinephrine can lead to aggressive, hostile, violent behavior and purported acts of superhuman strength in agitated users.

Here is Why Flakka is so Dangerous

A-PVP, like its chemical cousin MDPV, acts as both a dopamine/norepinephrine release and reuptake inhibitor simultaneously. If using cocaine is compared to standing in a rainstorm for 15 minutes smoking A-PVP is the equivalent of standing and a thunderstorm for four hours. Flakka increases both dopamine and norepinephrine by pumping more dopamine and norepinephrine into the synapsis while at the same time preventing it from leaving.  While cocaine is a short acting dopamine reuptake inhibitor, flakka is a longer acting reuptake inhibitor.  While dopamine levels might not rise quite to the level that would be associated with cocaine use, the heightened levels of dompaine and norephinephrine, sustained for hours on end, can induce stimulant psychosis and negative physical side effects quickly.  Due to the intensity of the drug, the compulsion to redose is extreme and tolerance develops very quickly. The prolonged heightened levels of norepinephrine quickly leads to increased heart rate, increase body temperature, grinding teeth and the other negative physical side effects.  Onset of stimulant psychosis develops quickly due to several factors including, but not limited to, compulsive redosing, the sustained large amounts of dopamine in the synapsis and sustained high levels of norepinephrine resulting in decreased sleep.  It is not uncommon to see stimulant psychosis appear within a matter of 2 days with MDPV or flakka.

This is a very basic overview. While you might not run down the street naked and get hung up on a fence by your crotch, even short term use can cause permanent neurological damage. If you are not familiar with the Montana Meth Project. Take a look at their videos. Same goes with flakka. Not even once.

For more information, 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: Chapter 893, Criminal Lawyer, Designer Drugs, Drugs, Florida Statute 893.03 Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

At Least 177 Unfiled DUI Cases in Broward County

May 20, 2015 by
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

For more information on marketing your law firm in a highly competitive niche please visit Law Firm Marketing AND Legal Marketing.  I am not being paid to link or promote these websites or products.  It is a product/service that I truly believe in.

 

 

Filed Under: Blood Test, Criminal Lawyer, Discovery, Drugged Driving, DUI Drug, DUI Drug, DUI Lawyer, Metabolite DUI, Search and Seizure, Standardized Field Sobriety Tests Tagged With: , , , , , , , , , , , , , , , , , , , , ,

DUI Marijuana | Urinalysis Cross Examination

March 12, 2015 by
DUI Marijuana Cross Examination

Urine test positive for THC?

This last week I had the opportunity to “pinch hit” in a jury trial. My job was to cross examine the State’s 3 toxicology witnesses. If you just read the police reports, you would think that the prosecution was walking into a “slam dunk” type of a case. You had an individual who submitted to an Intoxilyzer 8000 breath test and blew a .074. While right under the legal limit of .08, the client purportedly admitted to having “just smoked a bowl of weed” when he was asked to submit to a urine test. So the State decided to take the case to trial based on the poor driving pattern, bad roadsides(defendant is physically handicapped) and low breath combined with an admission of drug use.  It was critical for the state to establish that the defendant was under the influence of marijuana at the time when he was driving the car since the breath was below a .08.  The state called 1 chemist and 2 forensic toxicologists in an effort to do just that.

Initially, I would like to thank Gary Ostrow and Melanie Batdorf for allowing me to co-counsel on this case.  They did a fantastic job handling the case and set me up for a great shot.  So I give all credit to them for the heavy lifting.

Witness I, Laboratory Chemist | Not an Expert Witness

The first witness for the State was an individual with a bachelor’s degree in Chemistry with over 30 years of forensic science laboratory experience.  The state did not offer her as an expert.  She testified that she conducted a test on the urine sample provided by the defendant which is known as an “IA” or “immune assay” test.   On while being questioned on direct examination by the State she testified that the urine sample provided by the Defendant tested “positive for THC.”  THC is the principal psychoactive compound found in marijuana.  While this answer is not an outright lie, it is certainly not the “whole truth” that witnesses are expected to provide.

On cross examination, I immediately asked the witness if the test she performed detected the presence of THC, an active metabolite of THC or an inactive metabolite of THC.  The answer to this question is crucial because if the state can prove THC or an active metabolite, the chance of a guilty verdict increases substantially.  Only THC and its active(psychoactive) metabolites are controlled substances under Florida Statute Chapter 893.  Accordingly, if the test only detect an inactive metabolite of THC, it is insufficient to prove impairment.  The chemist with over 30 years laboratory experience stated that she did not know whether the test identified THC or another substance indicative or prior exposure to THC a/k/a as a metabolite.  When I began to question her about the difference between active and inactive metabolites, she stated that I would have to ask her supervisor because she didn’t know.  However, she did state that the manufacture’s box containing the test kit said THC on the outside of it.

It is disturbing that the chemist did not know what a “positive” result indicates.

Witness II, Forensic Chemist, Expert Witness

The second witness for the state was a forensic chemist who performed the GC/MS and TLC test on the urine sample.  Again, on direct examination, the forensic chemist testified that the defendant tested positive for cannabis in the TLC test only.  The state elicited more specific testimony wherein the witness stated that cannabis is the active substance in marijuana.

This witness was qualified as an expert witness.  Accordingly, the first thing that I did was go back and determine what substance was detected by the prior IA test performed by the first witness.  She testified that the IA test could not detect THC or any active metabolites in THC.  Rather, she testified that the substance detected by the IA test was 11-nor-9-Carboxy-THC which is an inactive metabolite indicating prior exposure to THC.  She went on to state that the TLC test was also incapable of detecting THC or active metabolites of THC.  She conceded that the TLC test simply confirmed the presence of the inactive metabolite 11-nor-9-Carboxy-THC.

There were two key points to this cross examination that put the nail in the state’s proverbial coffin.  First, she testified that there were no impairing substances detected by the laboratory.  Second, the witness testified that the laboratory has the ability to detect the presence of THC and the active metabolites of THC, but they did not and do not perform the test necessary to do so.

Witness III, Forensic Chemist, Supervisor, Expert Witness

The third witness was the supervisor who signed off on the toxicology report.  However, he did not perform any of the laboratory analysis.  From the laboratory perspective, he was not a very useful witness from the state.  However, having worked with him before, I knew that he was the most knowledgeable regarding the physical and mental effects of drug use.

Once again, this witness testified that the defendant tested positive for cannabis and did not differentiate between impairing substances and inactive substances.  On cross, he too admitted that there were no psychoactive substances detected in the sample.  He then went on to testify as to how to identify the impairing effects of cannabis and the proper use of a urine drug test in a DUI case.  Unfortunately for the state, none of the indications of cannabis impairment were present in the video.

Summary of the Testimony

  • All three witnesses for the state initially, on direct examination, testified that the defendant tested positive for an illegal, psychoactive chemical substance capable of causing impairment alone or in conjunction with alcohol;
  • All three state witnesses changed their testimony on cross examination.  One stated that she didn’t know what a positive result actually indicated.  The second two witnesses admitted that the defendant did not test positive for any illegal and/or psychoactive chemical substances;
  • There was nothing from the toxicology results that could indicate that the defendant was impaired by anything;
  • At the very most, the state proved that the defendant MAY have been exposed to THC within a 30 day period prior to the day he was arrested for DUI.

Every Lie Contains Some Truth

11-nor-9-Carboxy-THC. is an inactive secondary metabolite of THC.  When the inactive metabolite is detected in the urine, the is a high probability that an individual has been exposed to THC at some point prior to the test.  So did the defendant test positive for THC?  Obviously, the state’s answer is “kinda”, but my answer is no.  There is a very big difference between testing positive for THC and testing positive for an inactive secondary metabolite of THC.  One is a controlled substance under Chapter 893 Florida Statutes.  The other is not.  The controlled substance can be used as a basis for a conviction, the inactive metabolite cannot.  In this case, the urine test offered absolutely nothing indicative of impairment at the time the defendant was driving the vehicle.

Despite all of the above, state experts across the country continue to provide testimony that is misleading at best.  It is most certainly not the whole truth and nothing but the truth.  Testimony of this sort is being offered in courtrooms across the country every single day and every single day innocent individuals are being convicted based on this type of evidence.

Other sources of information:

http://www.thetruthaboutforensicscience.com/

http://www.jdsupra.com/legalnews/gcms-evidence-attacking-and-defending-68604/

For more information, 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: Criminal Lawyer, Cross Examination, DRE, DRE, Drug Recognition Expert, Drugged Driving, DUI Drug, DUI Drug, DUI Lawyer, Marijuana, Metabolite DUI, Urinalysis Tagged With: , , , , , , , , , , , , ,