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Florida DUI Laws | Changes are Needed

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

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