Metabolite DUI

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:

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 | 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