Drugged Driving | Why DUI Drug Impairment is Difficult to Prove

Drugged Driving | DUI Drug

Drugged Driving | DUI Drug

Drugged Driving | DUID

The following post, as well as the entire website, is for informational purposes only and is not intended to be relied upon for either legal or medical advice.  The author of this post has no medical training. 

Florida Statute 316.193 is Florida’s DUI statute.  An individual is only considered impaired if that individual is impaired by 1) alcohol; 2) a chemical substance under Florida Statute 877.111 or 3) a controlled substance listed in Chapter 893 Florida Statutes.  The State must prove impairment and name the specific substance in order to get a conviction for DUI under a drug impairment theory a/k/a drugged driving.  The State is required to prove the specific substance because the substance must be listed in Chapter 893.  Proving the specific substance causing impairment is becoming a more difficult task as more “designer drugs” or “legal highs” hit the market.

Drug Testing

Drug testing is a two step process.  The first step is the preliminary screening.  Positive screens are sent for a confirmatory test.

Preliminary Screen

The majority of Florida DUI drug cases will involve a urinalysis.  The preliminary drug screen typically consists of a 10 panel immunoassay test.  This is commonly known as a dipstick test.  The preliminary screen detects biological markers indicative of exposure to or use of certain drugs and/or classes of drugs.  For example, a 10 panel immunoassay test can test for cocaine, which is a specific drug, as well as benzodiazepines, which are a class of drugs.  An immunoassay test can identify the characteristics of a substance, but is typically not able to determine the exact substance.

Confirmatory Test

The second step of the process is the confirmatory test.  The confirmatory test is typically a GC/MS or gas chromatography mass spectrometry test.  The GC/MS separates the molecules so the exact chemical compound can be determined. While a immunoassay test will show positive for benzodiazepines, the GC/MS is can determine whether the benzodiazepine is alprazolam a/k/a Xanax or diazepam a/k/a Valium.  For more information regarding GC/MS testing, please see Frederic Douglas’ article by clicking this link: Scientific Criminal Defense.

Chapter 893 Florida Statutes

If it is not a listed controlled substance in Chapter 893 Florida Statutes, it is not capable of causing impairment as defined by Florida Statute 316.193(1)(a).  A specific example of this is zolpidem a/k/a Ambien.  Ambien is a powerful sedative hypnotic drug.  It is a federally controlled substance.  However, an individual cannot be convicted for a DUI based on being impaired by Ambien since zolpidem is not listed in Chapter 893 Florida Statues.

Designer Drugs and Research Chemicals

Certain “designer drugs” or “research chemicals” are within a class of drug detected on the 10 panel immunoassay, but are not scheduled controlled substances under Federal or Florida Law.  Some of the more common “designer drugs” are benzodiazepines.  There are several high potency benzodiazepines that are unscheduled under Florida and Federal Law.  Impairment via an unscheduled benzodiazepine may not be impairment as defined in Florida’s DUI statute.

For example, pyrazolam is an extremely potent benzodiazepine derivative that is not a scheduled controlled substance under Florida Law.  Accordingly, even if the State is able to prove that a driver is physically impaired by pyrazolam, the individual is not legally impaired for purposes of Florida’s DUI statute.  The reason why is because pyrazolam is not listed in Chapter 893 Florida Statutes and has no metabolites that are listed in Chapter 893 Florida Statutes.

Amature Chemists Beware

One of the problems with “legal highs”, “designer drugs” and “research chemicals” is that there isn’t much information available on the specific substances.  There is little to no information available on the short and long term physical and mental effects on humans.  Additionally, there is little to no information regarding the metabolism of a specific substance.  What information we do have on research chemicals is frightening.

Diclazepam is currently being marketed as a “research chemical” which is “not intended for human consumption.”  Some of the more intellectually honest websites are marketing it as a “legal high.”  Nevertheless, it is clear that the substance is a benzodiazepine and is not a scheduled controlled substance under Florida or Federal Law.  It should be noted that an individual could be prosecuted for buying, selling or possessing diclazepam under the federal analogue act under certain circumstances.

The limited studies concerning diclazepam show that it metabolizes into three main active metabolites after ingestion.  The three metabolites are lorazepam, delorazepam and lormetazepam.  All three of the active metabolites are controlled substances listed in Chapter 893 Florida Statutes.  An involuntary intoxication defense to DUI would not be permitted if an individual ingested diclazepam, but was impaired by any of the three active metabolites.  Although the approximate detection time limit for a single dose of lorazepam is 5 days, studies show that an individual who ingests diclazepam  may still test positive for lorazepam 19 days after ingestion.

For Lawyers

Make sure that the confirmatory test states a specific substance.  If you are unfamiliar with the substance, check Chapter 893 Florida Statutes.  Do not assume that the substance is included.  Cannabinoids is not a drug, it is a class of drugs.  Benzodiazepines are not a drug, it is a class of drugs.

For Others

All that is required for you to be arrested is probable cause.  If the officer has reason to believe that you are under the influence of a scheduled controlled substance while you are operating a vehicle, you will be arrested.  There is an inherent risk with any type of criminal litigation and you might be convicted.  In the event that you are not convicted, you will still go to jail and you will still have to pay for an attorney.  An attorney who can handle this type of case will not be cheap.  Additionally, just because you are not criminally liable does not mean that you would not be subject to civil liability in the event that somebody gets hurt or killed.  In addition to the legal consequences, intentionally ingesting unstudied chemicals from an anonymous internet based drug dealer/chemist is recklessly placing your physical and mental health in harms way.  Just because it is legal doesn’t mean that it is safe.

For more information on drugged driving or other criminal defense matters, 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


The Ambien Defense in Florida | DUI | Drugged Driving

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