Under Fla.Stat. §316.293(1)(a), a person is guilty of a DUI in Florida if he or she is driving under the influence of any controlled substance to the extent that the person’s normal facilities are impaired. Fla.Stat. §316.1934(1) states that a person’s normal facilities include, in general, the performance of the many mental and physical activities of daily life. These normal facilities also include “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, and act in emergencies.”So if a person can’t perform the many activities of mundane, everyday life like talk or judge distance because of the influence of marijuana while driving a vehicle, he or she may be found guilty of DUI in Florida. As more states legalize marijuana, DUIs for cannabis will become a law enforcement priority.
Fla.Stat. §316.193(1)(a) defines “under the influence” as the driver being in actual physical control of the vehicle while affected by the drug, or combination of drugs and alcohol thereof, to the extent that the driver’s normal faculties are impaired. Florida’s jury instructions define “actual physical control” as the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time. People have been charged with DUI while asleep in a parked vehicle, and even other situations where they were otherwise not driving the vehicle but still in “actual physical control.”
Some states, like Florida, use “Drug Recognition Experts” (DREs) to determine drug impairment in motorists. DREs are specially trained police officers who follow specific guidelines to reach a conclusion whether someone is under the influence of marijuana or some other drug. In almost every case, the police are required to continue a DUI investigation only with a DRE. In Florida, the majority of police officers are not qualified as DREs.
Thus, a non-DRE police officer does not have the right a driver to submit to a urine test. It is not unusual for police to ask someone to submit to a urine test after a low breathalyzer result, still believing that the subject driver is in fact legally drunk. But normal, non-DRE police officers may not do this unless they are qualified DREs. Beware that any statement a driver makes admitting marijuana use can give law enforcement probable cause, so drivers should always exercise their right to remain silent and talk to a criminal defense attorney as soon as possible.
The officer must have an independent justification to believe the defendant is under the influence of something other than alcohol. Simply providing a negative result on a breath test does not by its self justify a demand for a urine sample, otherwise, and the officer runs the risk of the positive urine result being suppressed as evidence due to a violation of the defendant’s constitutional rights.
Metabolites from marijuana are known to stay in a person’s system for up to thirty days after use. Thus, a driver, believing in his or her innocence may voluntarily submit to a blood or urine test and still test positive for marijuana. In Arizona, inactive metabolites (THC-carboxy) do not constitute evidence of impairment, which increases the burden on the State to prove that the impairment was a result of marijuana use.
If you have been charged with DUI for marijuana, enlist the aid of an experienced and knowledgeable criminal defense attorney to defend you and determine whether the State of Florida even has the required evidence to support its case against you, call Alan Fowler, an experienced Florida Key West criminal defense attorney, for a consultation at 305.417.9378.