DUI and Marijuana

Most allegations for Driving Under the Influence (DUI) involve a person driving a vehicle after consuming alcoholic beverages. But DUI can also be charged if the person consumed a prescribed medication even without ever taking consuming alcohol. Florida’s DUI laws also prohibit driving while impaired as a result of the use of drugs, including illegal “street drugs” such as marijuana.

Section 316.193 of the Florida Statutes provides that DUI charges may result from the use of a controlled substance by a person who is in “actual physical control” of a vehicle and under the influence of an illicit drug in his or her body. Drugs covered by Florida’s DUI statute include marijuana, which is referred to as “cannabis” throughout the statutes.

For prosecutors, proving “DUI by Marijuana” is often more difficult than proving DUI in an alcohol-related case. Without a blood sample showing the presence of the active metabolites of marijuana, impairment is difficult to prove. On the other hand, many cases for driving under the influence of marijuana also include a separate charge for possession of marijuana, which comes with its own serious penalties.

Attorney for Marijuana DUI in West Palm Beach, FL

If you were charged with DUI by Marijuana, Marijuana DUI, or drugged driving in West Palm Beach, Florida, or the surrounding areas of Palm Beach County, FL, then you should contact a qualified local DUI attorney right away.

After a DUI arrest, the clock is ticking on your right to contest a driver’s license suspension. You only have 10 days to demand a formal review hearing and obtain a 42-day permit to continue driving while your attorney fights the administrative suspension. Call us to find out the problems with waiving all of your rights by seeking immediate reinstatement during a “waiver review hearing.”

A skilled attorney can challenge a driver’s license suspension while investigating all the other aspects of a DUI case or drugged driving case. At Meltzer & Bell, P.A., we focus on DUI cases. We are quite familiar with drugged driving cases and have successfully defended many clients accused of DUI by Marijuana, as well as other drug-related DUI charges.

Our attorneys represent clients throughout Palm Beach County, Florida, including the cities of West Palm Beach, Boca Raton, Wellington, Lake Worth, Boynton Beach, Delray Beach, and Belle Glade. We also represent people facing DUI charges in Broward and Miami-Dade counties.

Call Meltzer & Bell, P.A. at (561) 557-8686 today to schedule a free consultation about your marijuana-related DUI charge. We can help you protect your driving privileges and your freedom.

DUI and Marijuana in Palm Beach County, FL

Marijuana is listed as a Schedule I Drug in the Florida Statutes, Section 893.03(1)(c)(7). A Schedule I drug is defined as one that has “high potential for abuse and has no currently accepted medical use in treatment in the U.S.”

Despite the fact that four states have legalized possession of marijuana for recreational purposes and a handful of South Florida communities have decriminalized possession of small amounts of marijuana, as well as abundant scientific evidence of medical marijuana’s benefits, marijuana is strictly illegal in Florida.

Even Palm Beach County passed a law in December 2015 that gives police discretion to issue a citation instead of making an arrest for possession of less than 20 grams of marijuana, but cities within the county are still allowed to make an arrest under Florida law which makes possession of marijuana a first degree misdemeanor.

And though Florida might officially be perplexed about marijuana prohibition, it has enacted tough DUI laws that prohibit a person from driving while impaired by any controlled substance to the extent that the driver’s “normal faculties” are impaired.

Evidence of marijuana use is detectable in a person’s body for many days, or sometimes weeks, after marijuana is ingested. Although the physiological and psychological effects of marijuana use dissipate rapidly, usually within hours, the evidence of marijuana use may be detectable for many days or weeks — sometimes up to a month or more — because marijuana’s high absorption rate translates into a slow exodus from the human body.

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Florida Statutes § 316.193 for Marijuana Impairment

Under the Florida Statutes, § 316.193, a person is guilty of the offense of “driving under the influence” and is subject to punishment if the person is driving or in actual physical control of a vehicle and:

  • The person is under the influence of alcoholic beverages, any chemical substance set forth in F.S. § 877.111, or any substance controlled under F.S. Chapter 893 (emphasis added), when affected to the extent that the person’s normal faculties (emphasis added) are impaired; or
  • When the person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood or the person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath

“Normal faculties” include but are not limited to: “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives,” according to the Florida Supreme Court’s Standard Criminal Jury Instructions. Determining the degree to which “normal faculties are impaired” is obviously a subjective measure.

“Actual physical control” is defined in the jury instructions to mean: “the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time.”

A first DUI charge is classified as something less than a first degree misdemeanor, although the minimum mandatory penalties are still very serious. DUI cases involve both criminal and administrative penalties. A jail sentence of up to six months may be imposed, as well as a fine of between $500 and $1,000, along with 12 months probation, community service, DUI school, a possible vehicle immobilization or impound, and additional fees and court costs. Civil penalties include an administrative action to sustain an “on the spot” driver’s license suspension that is triggered after the arrest.

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Testing Drivers for Marijuana in West Palm Beach, FL

DUI Marijuana Lawyer

DUI drug cases differ from other drunk driving cases in that a conviction hinges on the critical element of whether marijuana is present within a driver’s body and caused impairment. A DUI breath test, which is usually used in determining the level of alcohol intoxication, will not reveal whether a suspect has used marijuana. Only a blood or urine test will disclose if a driver has marijuana in his or her body.

If the police suspect a driver of “Marijuana DUI,” then the officer will often request that a Drug Recognition Evaluator (DRE) perform more invasive tests designed to determine impairment due to drugs.

After requesting field sobriety tests — which are not required and may be refused without penalty (although the police never tell you that) — or a breath test, the police will often attempt to procure a urine sample or blood sample to test for marijuana in the body of a driver suspected of Marijuana DUI.

Blood tests are more accurate than urine tests, although both tests may detect metabolites, which are the byproducts of a substance as it metabolizes in a person’s body. Metabolites of THC, the active ingredient in marijuana, are known to linger longer in the body than active THC, which, if present, should be detected in a blood test. The police will also try to find a substance known as 11-nor-9-carboxy-delta-9-tetrahydrocannabinol, or THC-COOH, in a urine sample.

A qualified DUI attorney will argue that the alleged presence of THC-COOH is inadmissible. (See Estrich v. State, 995 So.2d 613 (4th DCA, November 26, 2008). The difference between active THC and metabolites of THC is not clearly recognized by Florida law. Prosecutors often ask the court to make no distinction about when marijuana was used by a DUI suspect. If any marijuana is detected, a criminal charge may result regardless of when marijuana use occurred, which cannot usually be pinpointed.

If a blood or urine test is conducted on a DUI suspect, the manner in which the test is conducted is an important issue. If the police do not follow specific procedures in extracting a blood or urine sample, all the evidence could be suppressed, resulting in a dismissal of the DUI charge.

A good attorney can fight to make sure that the blood or urine test in your case showing the presence of any type of metabolite of THC is not admissible at your trial. Once the prosecutor realizes that the blood or urine test is not coming into custody, the prosecutor is more likely to reduce the charges significantly or just drop them entirely.

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Drug Recognition Evaluators (DREs) in Florida

DUI drug cases often rely on the testimony of expert witnesses, usually law enforcement officers who have been certified as “drug recognition experts,” or DREs. In most cases, the court will use the term “Drug Recognition Evaluators” instead of “Drug Recognition Experts.”

These officers are trained in recognizing subtleties in a person’s behavior that are reputedly indicative of drug use, but the objectivity and accuracy of DREs — who we repeat, are law enforcement officers — is highly debatable.

The defense may call its own expert witnesses to testify in a Marijuana DUI case. A defense expert may be able to contradict or refute the prosecutor’s or DRE’s claims, which could lead to the exclusion of evidence and the dismissal of the case.

Further complicating matters is the fact that other drugs or substances in a person’s body may appear to induce impairment, including legal prescription drugs or legal over-the-counter medications.

An experienced criminal defense attorney who is focused on DUI defense can be a difference-maker. A qualified attorney may be able to persuade the court to suppress evidence or successfully argue that the presence of marijuana does not equate to impairment by marijuana. An expert hired by the defense may be able to counter any testimony presented by a DRE who testifies for the State.

In these cases, the criminal defense attorney will file a motion in limine asking the court to order that the prosecutor with the State of Florida is prevented from eliciting any testimony about the effect that urinalysis of defendant’s sample disclosed “11 Nor 9 carboxy-delta 9 tetrahydrocannabinol” (also known as “carboxy-THC” or ‘THC-COOH”).

Carboxy-THC is a metabolite of the active ingredient of marijuana and non-impairing. Its presence merely indicates the prior ingestion of marijuana sometime in the past several days to a week. As such, the presence of carboxy-THC has no probative value in establishing impairment, and such testimony would be highly prejudicial to the defendant. Section 90.403 of the Florida Evidence Code states as follows: Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

xxxMotion in Limine to Exclude Marijuana DUI Test Results

In many of these cases, the Defendant is arrested for DUI. The officer requested a urine sample which was analyzed by the Florida Department of Law Enforcement to determine the presence of impairing substances.

The test results might show an undetermined amount of 11-Nor-9 carboxy-delta 9 tetrahydrocannabinol (carboxy-THC). The National Highway Traffic Safety Administration explained in its “Drugs and Human Performance Fact Sheets” published in April, 2004 explains on page 8 that “ THC is primarily metabolized to 11-hydroxy-THC which has equipotent psychoactivity [to delta-9 THC]. The 11-hydroxy-THC is then rapidly metabolized to the 11 nor-9- carboxy-THC (THC-COOH which is not psychoactive.”

Courts across the country have addressed the pharmacokinetic nature of carboxy-THC. Most experts in these cases agree that 11-carboxy-THC has no known pharmacological effect and has no pharmacological effect on the body. Its presences in the blood or urine correlates poorly, if at all, to an individual’s level of THC-related impairment. Even more problematic, the non-psychoactive metabolite carboxy-THC remains in the body for appreciably longer than the active ingredient, delta 9 THC.

One study “Cannabinoid Assays in Humans” Willette, 1976, explains that the inactive metabolite can be detected 48 hours after exposure to marijuana, although the active delta 9 THC was undetectable after an hour or two. Delta-9 THC became almost undetectable in plasma 1-2 hours after exposure while significant amounts of C-THC persisted in circulation for several hours. Studies show that the presence of carboxy-THC has no probative value with respect to whether the defendant was impaired by marijuana or its active ingredients at the time of driving.

The motion in limine to exclude any motion of THC metabolites being in the urine or blood, show that since the burden of a proponent of evidence to lay a foundation for the admissibility of that evidence, the presence of carboxy-THC (THCCOOH) in the defendant’s urine or blood proves nothing other than that the defendant was exposed to marijuana sometime in the past week. If the test results show an absence of either of the active, impairing substances in marijuana (delta-9 THC or hydroxy-THC) then that fact indicates that the defendant was, in fact, not impaired by marijuana at the time of the sample.

The courts in Florida have found that it is error to allow evidence of the presence of non-impairing carboxy-THC in a DUI case.

For example, in Estrich v. State, 995 So.2d 613, (DCA 4, 2008), the Fourth District Court of Appeals found:

Every expert witness at the trial and at the hearing on the motion in limine stated that the presence of the marijuana metabolite in the defendant’s blood sample likely would not have affected him at the time of the accident. For example, Dr. Jesse Bidanset, the state’s board certified forensic toxicologist, testified on direct examination that the presence of the marijuana metabolite in the defendant’s blood would “probably not” have affected the defendant at the time of the crash, explaining that “[t]he metabolite can circulate for literally days after using marijuana.

Id. at 616.

The Estrich court also explained with approval the testimony of the defense witness, Dr. Stefan Rose, who explained:

[G]enerally, when marijuana is smoked the THC from the smoke rapidly is transferred from the lungs into the bloodstream. Then, also rapidly, the THC is distributed throughout the bloodstream for about an hour or so as it enters, as it leaves the bloodstream and then goes into the other organs [including the brain] and fat tissue….

That process in a single dose of marijuana given to human beings take places in about an hour or so. The production of the inactive Metabolite Carboxy THC rises fairly slowly, and then reaches what might be thought of as a plateau blood concentration and stays at that concentration for a relatively long period of time in comparison to THC….

[T]he Carboxy THC[,] because it stays in the blood for a long period of time can remain from previous episodes of having smoked marijuana, whereas the THC will not be seen. So the presence of Carboxy THC in the blood is not always an indicator and may not be an indicator of recent marijuana use….

THC is the active compound in marijuana that … affects the brain…. It has a biologic effect…. Carboxy THC is the metabolite that does not possess the same biologic activity as THC, does not cause impairment, does not cause the things that THC causes.

Id. at footnote 2.

For these reasons, the Estrich court found:

“[R]elevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2007). Evidence is “relevant” if it tends “to prove or disprove a material fact.” § 90.401, Fla. Stat. (2007). The presence of the marijuana metabolite, if relevant, was only barely so. The material fact at issue was the defendant’s impairment at the time of the crash.

The only evidence at trial was that the defendant’s marijuana use “probably” did not affect him at the time of the collision. On the scale of relevancy, such tenuous probative value was “substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury.”

Id. at 617.

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Other Types of Related Marijuana Charges

The discovery of marijuana during a suspected DUI stop can be a game-changer. If alcohol impairment is unlikely or not suspected, the police may pursue a Marijuana DUI charge, or worse, try to “stack” a marijuana possession charge on top of a DUI charge.

Under F.S. § 893.13(6)(b), possession of 20 grams or less of marijuana is a first-degree misdemeanor in Florida, punishable by up to one year in jail and a fine of up to $1,000. Possession of an amount of marijuana of 20 grams or more is a third-degree felony, punishable by up to five years in prison and a fine of up to $5,000.

Under F.S. §§ 322.055 and 322.056, a marijuana possession conviction will also result in a driver’s license suspension for one year.

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Additional Resources

Florida Statutes, Title XXIII, Chapter 316, § 316.193 — Driving Under the Influence — Read the Florida law that defines DUI and lists the penalties for a DUI conviction.

Florida Statutes, Title XLVI, Chapter 893, § 893.13 — Drug Abuse Prevention and Control: Prohibited Acts — Read the Florida laws pertaining to controlled substances, including possession of marijuana (§ 893.13(6)(b)).

Drug Enforcement Administration (DEA) — The DEA’s mission is to prevent drug smuggling and drug use in the U.S. The DEA website contains information about both prescription drugs and illegal drugs, including marijuana.

National Organization for the Reform of Marijuana Laws (NORML) — Florida Drugged Driving  — A brief synopsis of Florida’s drugged driving laws related to marijuana is presented at the NORML website.

Find an Attorney for Marijuana DUI in West Palm Beach, FL

The prosecution and defense of a DUI charge in West Palm Beach, FL, can be more complicated if the driver is alleged to be under the influence of marijuana. But there is a huge difference between accusing a person of Marijuana DUI and proving it at trial beyond any reasonable doubt.

If you were charged with Marijuana DUI or drugged driving in West Palm Beach, Florida, you need a competent criminal defense attorney who understands Florida’s DUI and drug laws and who will use his knowledge and experience to defend you and fight for your freedom.

Meltzer & Bell, P.A. represents DUI clients throughout Palm Beach County and the surrounding areas, including the cities of West Palm Beach, Boca Raton, Wellington, Jupiter, Palm Beach Gardens, Boynton Beach, Delray Beach, Belle Glade, and Pahokee, as well as people residing in Broward and Miami-Dade counties.

Our dedicated lawyers have a deep understanding of Florida’s DUI and drug laws and pledge to provide you with effective representation in all aspects of your case. Call Meltzer & Bell, P.A. today at (561) 557-8686 to schedule your free initial consultation with one of our skilled attorneys.

This article explaining Marijuana DUI was last updated on Friday, May 19, 2017.

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