Florida DUI Laws | Changes are Needed

February 17, 2015 by Michael Dye

Florida DUI Laws | The War on Drugs

Florida DUI Laws & The War on Drugs

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

“(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;”

Accordingly, an individual can only be convicted of DUI if that individual is impaired by 1) alcoholic beverages, 2) chemical substances enumerated in Florida Statute 877.111 or 3) controlled substances specifically listed in Chapter 893 Florida Statutes.

The Problem with Chapter 893

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

Where DUI and The War on Drugs Meet

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

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

Changes Needed

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

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

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

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

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Filed Under: Criminal Lawyer, Drugged Driving, DUI Drug, DUI Drug, DUI Legislation, Florida Legislature, Florida Senate, Legislation, Metabolite DUI, Urinalysis, Zolpidem Tagged With: ambien, Chapter 893 Florida Statutes, controlled substance, dextromethorphan, diphenhydramine, drugged driving, dui drug, dui drug impairment, Florida legislature, Florida Statute 316.193, Florida Statute 877.111, fort lauderdale criminal attorney, fort lauderdale dui attorney, metabolite dui, miami criminal attorney, miami dui attorney, zolpidem

Drugged Driving Florida 2015 | Prediction No Change

December 29, 2014 by Michael Dye

Who is Writing the DUI Laws?

Drugged driving has rapidly become an issue that has a significant impact on public safety. With 2015 just around the corner I am going to go out on a limb and make my drugged driving predictions for 2015.

My Conclusion:

At least one poorly drafted, overbroad and unconstitutional bill purportedly drafted to curb drugged driving will not make it through the legislature. To the public, that means no change.

Here is what history has taught us:

Florida Statute 316.193 is Florida’s DUI statute. For at least the last three years, there has been at least 1 bill introduced in the Florida Legislature which has attempted to redefine the crime of DUI. The majority of the proposed changes to Florida’s DUI statute have focused on drugged driving.

All 50 states have laws prohibiting driving while impaired by drugs. The differences between the various state statutes is a) which drugs and substances qualify as an “impairing substance” and b) the legal definition of “impairment.” Two recent attempts, Florida Senate Bill 1810, 2012 & Florida Senate Bill 1118, 2014 would have changed the definition of impairment, for drugged driving cases, from an “actual impairment” standard to a “per se” definition of impairment. A “per se” standard is also referred to as “metabolite DUI.”

Florida’s Current DUI Statute Requires Actual Impairment

Florida’s DUI statute permits an individual to be charged with and convicted for DUI under an alcohol or drug theory. With regard to drug impairment, under the current statute, an individual’s ability to drive a car must actually be impaired by a controlled substance while driving in order for the state to secure a conviction for DUI. The recent attempts to change Florida to a per se DUI state would have made it a crime to have any detectable amount of a controlled substance, a controlled substance analogue or a metabolite of a controlled substance while driving. The obvious benefit of creating a per se standard is that prosecutors do not have to prove actual impairment. Under a per se statute, a person can be convicted of DUI even if he was completely sober at the time he was driving but remember that there is a cosmetic surgeon performing nose surgery in New Jersey to help you. The number of people convicted of DUI will rise simply because a per se statute expands criminalizes what was previously lawful behavior.

The flawed logic behind a per se DUI statute is that a conviction equals justice. However, does convicting a sober individual of DUI truly amount to justice? How is the public good served by convicting a sober driver of DUI? Who are we trying to protect from the menace of sober drivers? Almost any politician would be glad to take responsibility for creating a law that lead to an increase in drugged driving convictions.

In a rush to be seen as “tough on crime” politicians throughout the country have proposed some of the worst legislation imaginable. Florida Senate Bill 1810, 2012 is pretty much the “gold standard” for poorly drafted legislation. The bill died in committee. I do not believe that Senator Stephen Wise, who proposed Senate Bill 1810, is ignorant or that the bill was in any way malicious. He recognized that there is a problem and tried to solve it. By taking an extremely broad approach to the problem of drugged driving, Senator Wise drafted a bill that would have created some unintended and otherwise comical results. Let’s look at some of the ridiculous results that would have arisen from a strict interpretation of Florida Senate Bill 1810 had it become law in 2012.

Proposed Statutory Amendments Expanding the Definition of Impairment:

FL Stat 316.193(1)(c): “The person has in the blood or urine a substance identified as a controlled substance as defined in Schedule I of chapter 893 or the Federal Register, or one of its metabolites or analogs;”

Florida Stat 316.193(1)(d): “The person has in the blood or urine a substance identified as a controlled substance in Schedule II, Schedule III, or Schedule IV of chapter or the Federal Register, or one of its metabolites or analogs.”

Proposed Statutory Amendments Creating New Affirmative Defenses

FL Stat 316.193(15)(a): “If a person who is charged with violating subsection (1)(d) introduced into his or her body a controlled substance prescribed by a licensed health professional authorized to prescribe the controlled substance and if the person consumed the controlled substance in accordance with the health professional’s directions, the person is entitled to an affirmative defense against any allegation that the person violated subsection (1)(d). The introduction of a non-prescribed substance into the person’s body does not constitute an affirmative defense with respect to any non-prescribed substance.”

FL Stat 316.193(15)(b): Except for paragraph (a), the fact that a person charged with violating subsection (1) is or was legally entitled to introduce into the human body alcohol, a chemical substance, a controlled substance, a medication, a drug, or any other impairing substance does not constitute a defense against any charge of violating subsection (1).

Absurd Results Created by Poorly Drafted Legislation:

Absurd Result # 1 DUI Marijuana

A chemotherapy patient who smokes 1 puff of marijuana for medicinal purposes and drives 10 days later will be guilty of DUI. Despite the fact he would no longer be impaired by marijuana, he would still be found guilty of a DUI because marijuana metabolites can be detected in biological fluid for up to one month. The patient is not entitled to either of the above listed affirmative defenses because marijuana is a Schedule I Controlled Substance at the state and federal level. If marijuana were to become legal in Florida, the same individual would still not have an affirmative defense due to marijuana remaining a Schedule I Controlled Substance at the federal level;

Absurd Result # 2 DUI Antidepressant

Wellbutrin is a substituted cathinone. Cathinone is a schedule I controlled substance on both the state and federal levels. Wellbutrin, a/k/a Bupropion, is an analogue of cathinone. The proposed legislation does not define the term “analogue” as used in the proposed amendments to Florida Statute 316.193(c). The affirmative defense of “legal prescribed use” is not available for analogues of Schedule I Controlled Substances. According to the language in the proposed amendment, all individuals prescribed and taking Wellbutrin would be found guilty of DUI. If the legislation were amended to specifically exclude bupropion or define “analogue” in accordance with the Federal Analog Act 21 U.S.C. 813 then taking Wellbutrin and driving would not be illegal. Nevertheless, these amendments were never made.

Absurd Result # 3 DUI Anabolic Steroids

Professional athletes and gym rats beware! Steroids are Schedule III Controlled Substances on both the state and federal level. According to the proposed amendment, you would be convicted of DUI for taking steroids if you get caught driving a car. If you use Nandrolone Undecanoate a/k/a Deca Durabolin or “Deca”, you should be prepared to take the bus for a long time as “Deca” can be detected in your biological fluids for up to 17 or 18 months after last use.

Absurd Result # 4 DUI Testicles

Adult males naturally produce testosterone. Accordingly, all men will have a certain level of testosterone in their system. Testosterone is a Schedule III controlled substance and the amendment proposed by Senator Wise made no distinction between endogenous testosterone production as opposed to “supplementing” your natural testosterone levels with external sources. All men with healthy, functioning testicles have testosterone in their system 100% of the time. Accordingly, a strict construction of the proposed amendment would result in all men with functioning testicles being guilty of DUI whenever they get behind the wheel of a car.

Absurd Result # 5 DUI’s for Everybody

It also bears mentioning that, on the average, women naturally produce testosterone at around 1/7 the rate of men. Accordingly, all normal healthy women will have some testosterone in their system 100% of the time. Since the amendment made no distinction between endogenous testosterone or illegally obtained testosterone, all normal, healthy women would be guilty of DUI.

Absurd Conclusion: Anybody who operates a motor vehicle on the streets or highways of the State of Florida is guilty of DUI.

Do These Results Seem Absurd to You?

I admit that the hypotheticals #4 and #5 above are a tad on the “extreme” side. However, that is the plain language of the statute. The results are absurd. Yet, that is what is on the horizon. Approximately 1/3 of all states have passed per se DUI statutes. These statutes are written in such a way as to criminalize innocent and socially acceptable conduct. Different states have enacted different versions of per se statutes and some drugged driving laws are better than others. For example, some states exclude specific commonly abused illegal drugs. Some limit the specimens that can be collected (urine, oral fluid, blood) or specify specific cut-off levels.

The Solution is Education

Educating younger drivers on the dangers of drugged driving is only 1/2 of the equation. However, there will be no meaningful change until the law makers educate themselves. The proposed legislation that I listed above shows exactly how out of touch politicians are with the problems faced in today’s society. How does criminalizing driving with high testosterone levels help society? There will be no change until the law makers can accurately identify the problem.

Accordingly, I stand by my conclusion. The legislature will attempt to fix a problem which they cannot identify by proposing more dumb laws. Unfortunately, sometimes those dumb ideas pass and become law.

My Offer

If any member of the Florida Legislature reads this and would like my assistance drafting a tough, effective and reasonable drugged driving statute, contact me and I will help you draft it from A to Z.

For additional information, please contact

Filed Under: 2012, Anabolic Steroids, Criminal Lawyer, DRE, DRE, Drug Recognition Expert, Drugged Driving, DUI Drug, DUI Drug, DUI Lawyer, DUI Legislation, Florida Legislature, Florida Senate, Florida Senate Bill 1810, Legislation, Marijuana, Metabolite DUI, Testosterone, Urinalysis Tagged With: affirmative defense, anabolic steroids, antidepressant, controlled substance, drugged driving, dui drug, dui drug impairment, Florida Senate Bill 1810 2012, Florida Senator Stephen Wise, Florida Statute 316.193, fort lauderdale criminal attorney, fort lauderdale dui attorney, marijuana, metabolite dui, miami criminal attorney, miami dui attorney, per se dui, wellbutrin

Drugged Driving | Why DUI Drug Impairment is Difficult to Prove

October 22, 2014 by Michael Dye

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:

Filed Under: Ambien, Benzodiazepines, Cocaine, Criminal Lawyer, Designer Drugs, DRE, Drug Recognition Expert, DUI Drug, DUI Drug, DUI Lawyer, Metabolite DUI, Research Chemicals, Urinalysis, Zolpidem Tagged With: criminal attorney, Criminal Lawyer Fort Lauderdale, Criminal Lawyer Miami, dui attorney, dui attorney fort lauderdale, dui attorney miami, dui lawyer, DUI Lawyer Fort Lauderdale, DUI Lawyer Miami, fort lauderdale criminal attorney, fort lauderdale criminal lawyer, fort lauderdale dui attorney, fort lauderdale dui lawyer, miami criminal attorney, miami criminal lawyer, miami dui attorney

DUI Deposition Shows Why DUI Attorneys Must Know More than the Law

September 23, 2014 by Michael Dye

DUI Deposition regarding cocaine impairment.

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Hire a DUI Attorney Who Knows the Law and the Science

The Florida DUI statute is FL Stat 316.193. Here is what it says in a nutshell, the state must prove beyond a reasonable doubt that:
1. You were in actual physical control of a motor vehicle;
2. On the streets, highways or a public vehicular area within the State of Florida;
3. While impaired by alcohol, certain inhalants listed in FL Stat 877.111 or a controlled substance listed in Chapter 893 of the Florida Statutes.

Florida uses urine testing for DUI drug cases with limited exceptions. Drugs typically have longer detection windows in urine tests than in blood tests. Indications of marijuana use can be detected in urine for up to 30 days after ingestion. However, that does not mean that a person is high on marijuana for 30 days. It simply indicates that certain chemical markers are present even after the drug has lost it pharmacological effect. How can a drug stay in your system, yet not make you high? The answer is that it can’t. Once the drug a/k/a the “parent compound” enters your system, it begins to break down into metabolites. For purposes of this example, metabolites can be divided into 2 categories. 1) active metabolites – has a pharmacological effect and 2) inactive metabolites – doesn’t have a pharmacological effect. So what substance did the toxicologist find in the urine? Was it the parent compound? Was it an active metabolite? Was it an inactive metabolite? A DUI attorney needs to know how a drug metabolizes in a person’s system and what substance is being detected on a drug screen. As you can see in the DUI deposition below, an individual was accused of driving under the influence of cocaine. He hired a good defense attorney, Daniel Rosenberg, who understands the limitations of urinalysis. As a result, the client’s DUI was reduced to a reckless driving and withheld adjudication.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/09/DUI-Cocaine-Urinalysis-Depo.pdf” save=”1″]

Fort Lauderdale DUI Attorney, Michael Dye, represents individuals charged with all types of felonies and misdemeanors including, but not limited to contempt of court. For more information, please contact Mr. Dye at his Fort Lauderdale or Miami office:

Deposition courtesy of The Law Offices of Daniel Rosenberg, PA

Filed Under: DUI Drug, DUI Lawyer, Urinalysis Tagged With: dui attorney, dui attorney fort lauderdale, DUI Lawyer Fort Lauderdale, fort lauderdale dui attorney, fort lauderdale dui lawyer

Roadside Sobriety Exercises | Standardized Field Sobriety Tests

July 29, 2014 by Michael Dye

Police officer incorrectly administering the SFST’s.

DUI Attorney Miami | Criminal Lawyer Miami

Prior to being arrested for a DUI, and sometimes afterwards, the police often ask a defendant to submit to a series of exercises in order to determine the individual’s sobriety. These exercises are known as the Standardized Field Sobriety Tests or SFST’s for short. The SFST’s is a series of 3 tests that the National Highway Transportation and Safety Administration has determined can be used to identify impairment in an individual. The officer demonstrates and then observes the defendant perform the exercises. The officer is trained to identify certain indicators of impairment that can be used to establish probable cause for an arrest or to simply pile on additional evidence of impairment.

The exercises must be administered and evaluated in a standardized fashion in order to ensure an accurate result. The tests were developed by NHTSA in conjunction with the Southern California Research institute. There are only 3 SFST’s that are statistically correlated to impairment. Those tests are the Horizontal Gaze Nystagmus, the Walk-And-Turn and the One-Leg Stand. These 3 tests are to be administered the same way every single time and evaluated through the use of strict criteria limiting an officer’s discretion as to what is a “pass” or what is a “fail.”

The unfortunate reality is that the standardized administration and evaluation of the SFST’s is largely ignored by police departments and individual police officers. The exercises are frequently administered and evaluated incorrectly leading the officer to form an opinion that can not be validated by any of the studies or research. Additionally, officers that are not properly trained often use improvised exercises that have been found to have no correlation to impairment. The most common of these tests are the “finger to nose” test, any test involving the alphabet and a wide variety of different counting exercises using your fingers. Do not be mistaken, those tests are not approved to detect impairment. Many DUI attorneys are not familiar with the concepts involved with the SFST’s.

When consulting with a criminal lawyer concerning your DUI case, you should ask the lawyer:

1) Are you familiar with the SFST’s?

2) What additional training have you received in the administration and interpretation of the SFST’s?

3) Do you own a copy of the NHTSA SFST Manual?

4) Approximately how many trials have you had where you cross examined the arresting officer concerning the NHTSA criteria?

DUI Attorney, Michael Dye received additional training in the administration and interpretation of the SFST’s from Doug Scott, a pioneer in the field of the Drug Recognition Expert Program, who is recognized as an expert in the administration and interpretation of the SFST’s. Mr. Dye has the most current version of the NHTSA SFST Student Manual and actively utilizes it as reference and impeachment material in both depositions and trials. Mr. Dye has cross examined the arresting officer regarding the SFST’s in over 20 trials and numerous depositions.