Drugged Driving Florida 2015 | Prediction No Change

Florida DUI Legislation

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 DUIThe 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

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

 

 

 

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

 

Drugged Driving | DRE | Drug Recognition Expert

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

Drugged Driving | Urinalysis | Metabolite DUI

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