What is the Most Common Drug in DUI?

Marijuana is the most common drug in Florida DUIs. This drug is legal to possess in some parts of the Tampa Bay area. But it’s illegal to drive under the influence of marijuana or “any substance controlled under Chapter 893, when affected to the extent that the person’s normal faculties are impaired.” A chemical test proves that the defendant had marijuana in his/her system. But impairment is much more subjective.

If a Tampa criminal defense lawyer creates a reasonable doubt as to the presence of marijuana or sensory impairment, the defendant is not guilty as a matter of law. There’s more good news. Unlike alcohol DUIs, marijuana DUIs are not a political hot button. Therefore, prosecutors are usually more willing to discuss a plea to a lesser included offense, such as reckless driving, in marijuana DUI cases, especially considering the proof problems in these matters.

Chemical Tests

As mentioned, a chemical test proves the presence of marijuana in the defendant’s system. But there’s no marijuana breath test, or at least there’s no commercially viable and available marijuana breath test. So, that chemical test must normally be a blood test.

These tests are easy for prosecutors to obtain if the defendant went to the hospital, probably after an accident. All patients at hospitals and clinics are subject to blood tests and drug screens. In other cases, however, police officers need valid search warrants to extract blood samples from defendants.

Occasionally, hospital samples have chain of custody issues. Anything could happen to a sample during transportation from a clinic to a police evidence room.

These search warrants must be based on probable cause affidavits. Probable cause is usually poor performance on field sobriety tests. A general statement that the defendant “failed” the tests is probably insufficient. Instead, the warrant affidavit must state why the defendant failed the tests.

Additionally, an affidavit is a written and sworn document. An email request is not an affidavit, and a phone call to a judge is not an affidavit, even if the written statement or phone call established probable cause.

Proving Impairment

Section 316.193, the primary DUI law in Florida, doesn’t include a marijuana impairment level. For comparison purposes, it does include an alcohol chemical impairment level, which is usually .08.

So, to prove impairment, the state must normally rely on field sobriety test results. These tests are very unreliable in many ways and subject to challenge by a Tampa criminal defense lawyer.

• HGN: The follow-my-finger eye test confirms the presence of horizontal gaze nystagmus. But substance impairment is not the only cause of HGN. In fact, it’s not even the leading cause.
• OLS: People with mobility impairments of any degree usually cannot complete the one leg stand test whether they’re drunk or sober. Furthermore, there’s no scientific link between the inability to stand on one leg and substance impairment.
• HTW: These same deficiencies apply to the heel-to-toe walk test. The defendant’s footwear is relevant as well. It’s almost impossible to walk heel-to-toe while wearing anything other than athletic shoes.

Arresting officers invariably testify that defendants “failed” the field tests. But the jury has the last word on who passed or failed the tests.

Connect With a Diligent Hillsborough County Attorney

A criminal charge is not the same thing as a criminal conviction. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. Virtual, home, and jail visits are available.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/Sections/0316.193.html