Florida’s law against driving under the influence, F.S. 316.193, covers the offense of operating a vehicle while intoxicated not just by alcohol, but by any chemical substance that impairs the person’s normal faculties. This includes marijuana. However, now that the drug has become legal for medicinal purposes in the Sunshine State, some lawmakers say this statute does not go far enough.
Now, House Bill 237, the Driving Under the Influence of Drugs Act, proposes that DUI arrests can be made and convictions secured if evidence is presented the driver had 5 nanograms or more of THC per milliliter of blood. If the law is passed, it would go into effect this October.
However, there has been significant push back from the scientific community on this because blood testing for THC, which is a fat-soluble compound, is known to be an inaccurate means of testing impairment. That’s because the substances stays in one’s body long after consumption, unlike alcohol, which dissipates quickly. What that means is if you find a certain amount of alcohol in one’s blood or breath or urine, that alcohol was consumed fairly recently and one can opine with reasonable certainty about the degree of intoxication. But that isn’t true with marijuana. In fact, all a test like this will tell you is that the person is a marijuana user. A high level of THC in the blood stream is not necessarily indicative of impairment. It may only indicate the person is a regular user. So if a person consumes a little of the drug every evening for a month and is pulled over one morning – completely sober – he or she could well have a THC level above that 5-nanogram limit.
Absent this measure, that basically leaves proof of impairment reliant on field sobriety tests. But as many DUI defense lawyers will point out, even these aren’t necessarily accurate in determining impairment according to standards needed to secure a conviction.
NPR recently detailed the court battles that have played on this front recently, particularly in Massachusetts, where a case on field sobriety testing and marijuana impairment is going to the state’s highest court. Defense lawyers argue that standard field sobriety tests do not prove that a person is high the way they might prove drunkenness.
These are the kinds of tests that involve things like asking a driver to stand on one leg, recite the alphabet and walk a straight line.
The matter before the Massachusetts Supreme Judicial Court is actually three consolidated cases challenging the status quo on courts accepting field sobriety tests to prove marijuana intoxication.
Police worry that without either of these methods, particularly as permissiveness of the drug has expanded, they will be left with few means to stop stoned drivers. This is a legitimate concern, and one that can’t be dismissed.
However, our top priority as criminal defense attorneys is not helping police and prosecutors prove their case. That’s particularly true when we’re talking about the risk to individuals’ lives and livelihoods. It is not worth it that some innocent people would be convicted as a result of an unfair law, even if the underlying motives are commendable.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Can Sobriety Tests Weed Out Drivers Who’ve Smoked Too Much Weed? Jan. 25, 2017, By Tovia Smith, All Things Considered, NPR
More Blog Entries:
Court Orders Remedy of Thousands of Flawed Drug Convictions, Feb. 1, 2017, Marijuana DUI Defense Lawyer Blog