This past November 72%
of voters in Florida approved the Florida Medical Marijuana Legalization Initiative (also known as Amendment 2), which legalizes medical marijuana for
individuals with specific debilitating diseases or comparable debilitating
conditions as determined by a licensed state physician.
There is still much
left to be done with regards to implementing Amendment 2, but some patients may
begin to wonder: what happens if I take a dose of medical marijuana as my physician prescribed and drove my car?
The short answer is you
can still be arrested and convicted for driving under the influence, or DUI.
Under both federal and
Florida law, marijuana is still a Schedule I controlled substance and possession
of it is still illegal. Amendment 2 merely removes the criminal or civil
sanctions under Florida law for the medical use of marijuana by a qualified
patient/caregiver/physician. Amendment 2 specifically does not immunize
violations of federal law. Amendment 2 also does not immunize any non-medical
use, possession, or production of marijuana in violation of Florida law.
Now there are generally
two ways for a driver to be arrested and convicted of DUI in Florida. The first
method is for the prosecutor to prove that the driver’s breath/blood alcohol
level is above a 0.08, and this is determined by either a blood test or a
breath sample test using a breathalyzer machine.
The second method would
be to prove that the person was under the influence of alcohol/chemical
substance/controlled substance so that their normal faculties are impaired. The prosecutor would try to prove
this using testimony from an officer who would describe the driving pattern, the
appearance and behavior of the driver, how the driver performed on the field
sobriety exercises, and the interrogation later done at the station. If an
officer has “reasonable cause” to believe that the driver is under the
influence of a controlled substance, they can request a urine sample from the
driver in order to show the presence of any controlled substances in the driver’s
system.
Florida law does not
provide for any defense, exception, or immunity from arrest and conviction for DUI
while under the influence of any physician-prescribed controlled substance.
This would include controlled substances such as Klonopin, Valium, Vicodin, and
OxyContin.
Likewise, since
marijuana is still a controlled substance under both Florida and federal law, a
person driving or in actual physical control of a vehicle could be arrested,
and convicted if it were proven, that their normal faculties were impaired by
that use.
So even though medical
marijuana will now be legal in Florida under Florida law, you still cannot
drive while under the influence of it even if you are taking your dosage as prescribed by your treating physician, as with any other controlled substance
regardless of its schedule.
Having handled numerous DUI cases through trial with positive
results, including marijuana-related DUIs, I know that it is critical to
examine and challenge all of the evidence presented by the prosecution, whether
trying to exclude the evidence, to obtain a dismissal of the charges, or to
succeed at trial. There are lifelong ramifications associated with a DUI, so any decision must be treated seriously and examined closely.
George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.
