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: , , , , , , , , , , , , , , , , ,

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: , , , , , , , , , , , , ,

Florida DUI Laws | Changes are Needed

February 17, 2015 by
Florida DUI Laws

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:

“(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 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: , , , , , , , , , , , , , , , ,

Drugged Driving Florida 2015 | Prediction No Change

December 29, 2014 by
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 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

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

 

 

 

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