Florida SB 1810 – Creating New Strict Liability Standard for DWI Drug and Marijuana Cases

Florida has yet to legalize or even decriminalize the possession of a small amount of marijuana for personal use. Instead, the Florida Senate is moving toward creating a law which would create a “per se” or “strict liability” standard for any driver with low levels or trace amounts of residual marijuana in their urine or blood even if the driver was NOT impaired.

Under Florida’s current DUI law, law enforcement officers can make an arrest for DUI if the driver is under the influence of marijuana or any other controlled substance. The DUI enforcement officer can do any of the following:

  • ask the driver about whether he or she consumed any drug;
  • search the vehicle for contraband after the arrest;
  • ask the driver to submit to field sobriety exercises;
  • using a Drug Recognition Expert (DRE) to test the driver’s psychomotor performance to determine whether the driver is impaired due to marijuana or any other controlled substance;
  • videotape the way the driver walks and talks;
  • ask the driver to submit to a breath, blood or urine test;
  • analyze the levels of THC or any other controlled substance in the urine or blood to determine whether or not the driver was impaired at the time the test was given;
  • punish the driver who refuses to take such chemical test by using that evidence in court to prove “consciousness of guilty”; and
  • punish the driver who refuses to take such chemical test by imposing a one year suspension of the driver’s license for a first refusal or an eighteen month suspension of the driver’s license for a second or subsequent refusal.

In order to convicted a drunk or impaired driver, the prosecutor only needs to prove that the driver’s normal faculties were impaired due to the consumption of alcohol and/or any controlled substance. The law does not need to be changed.

2012 SB 1810 – Strict Liability DWI for Driving with a Positive Urine or Blood Result Even if No Impairment

The pending Florida Senate Bill 1810 introduced in 2012 seeks to amend Florida DUI’s statute, Section 316.193.

Read the statutory language here –Florida 2012 SB 1810.

The amendment would change the term “DUI” to “DWI.” One of the most radical changes in the legislation is creating a strict liability offense under a “per se” standard for anyone with a positive drug screen on the night of the arrest. Low levels or trace amounts of cannabis (THC) or its inactive metabolites (waste products) in the driver’s urine or blood does not indicate that the driver was impaired. The main metabolite of marijuana, THC-COOH, remains detectable in the urine or blood for several weeks after the last time marijuana was consumed.

Florida’s Senate Bill 1810 seeks to improperly define sober drivers as if they were intoxicated solely because of the result of that urine or blood test. [In fact, the presence of a marijuana metabolite without the presence of THC in the blood or urine would prove that impairment is highly unlikely since the marijuana must have been consumed long before the test was given and after all active metabolites have been eliminated from the system leaving only inactive metabolites or waste products.]

Not only is marijuana is the most commonly used illegal drug in Florida, it also happens to be one of the easiest substances to detect in the blood or urine test even weeks after it was last consumed. In other words, if you smoke a joint on Monday and get pulled over on Friday night the urine or blood test may show the presence of a marijuana metabolite even though the driver was clearly not impaired.

Numerous scientific studies have confirms that the presence of a cannabis metabolites in the blood does not correlate with any level of impairment at the time the blood or urine test was given. Even the National Highway Traffic Safety Administration (NHTSA) concedes that “…it is not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample.” Marijuana and Actual Driving Performance, Effects of THC on Driving Performance, U.S. Department of Transportation, National Highway Traffic Safety Administration, DOT HS 808 078 (November 1993), p.6.

Why Doesn’t the Presence of Marijuana Metabolites Indicate Impairment?

After smoking marijuana the noticeable effects last for only a few hours after it is smoked. The effects peak during the first hour after marijuana is smoked and begin to decline rapidly in the hours that follow. The metabolism of THC occurs very slowly. THC is not eliminated from the system for hours and weeks after the user stops feeling the effects of the marijuana consumption. Numerous scientific studies have firmly established that THC and trace amounts of its inactive (inert) metabolites are present in the urine and blood for several weeks after marijuana is last consumed.

Impairment from Marijuana is Seldom Severe as Alcohol Intoxication

Although cannabis consumption can impair psychomotor performance, most experts acknowledge that impairment from the consumption of marijuana is seldom as severe as alcohol intoxication. Nevertheless, the presence of THC my be detectable in the blood or urine for up to 12 hours even though the effects last for only a few hours. Even more problematic, carboxy THC is the primary inactive or inert metabolite of marijuana. It may e present in the urine or blood for several days and weeks after the consumption occurred. Anyone who tests during the days and weeks after consuming marijuana (even though completely sober at the time of driving) would be guilty of DWI under the provisions imposed in Florida 2012 Senate Bill 1810.

Trumping Up the Number of DWI Arrests

As the number of DUI/DWI accidents resulting in injury or death continue to fall throughout Florida and the rest of the United States, law enforcement officers and the state legislators are becoming more creative in how DUI/DWI is defined. By making it a crime to drive with almost any legal, illegal, or prescription drug or its inactive metabolite in your system law enforcement officers can increase the number of DUI arrests. At the same time, SB 1810 does nothing to get impaired drivers off the road. It merely adds another “strict liability” crime to the mix.

You can take action to make sure this piece of poorly drafted legislation does not become law. Visit NORML’s Blog article on Florida 2012 SB 1810 to compose an e-mail or printed letter to your state legislator explaining why you think SB 1810 should not become law. Take action to prevent innocent people from being convicted of a serious criminal offense like DWI.

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