Last month I discussed
the risks related to driving under the influence of marijuana in light of the
recently passed Florida Medical Marijuana Legalization Initiative, or Amendment
2. It was only a matter of time then for the Florida Legislature, as with other
states, to begin drafting new laws specifically targeting marijuana use.
As I mentioned before,
in order to be arrested and convicted for Driving Under the Influence (DUI) or
Boating Under the Influence (BUI), the prosecutor to must prove that the
driver’s breath/blood alcohol level was above a 0.08 (using either a blood test
from a blood sample or from a breathalyzer machine using a breath sample), or
prove that the person was under the influence of alcohol/chemical
substance/controlled substance so that their normal faculties are impaired.
Also, if an officer had “reasonable cause” to believe that the driver was 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.
Just last week though House
Bill 237 was filed in the Florida House of Representatives titled “Driving
Under the Influence of Drugs (DUID) Act,” by Democratic Representative David
Silvers of West Palm Beach. This law would add an additional method to assist
prosecutors in securing a conviction for DUI/BUI by inserting the following
language in the DUI (section 316.193) and BUI (section 327.35) statutes:
“(d) The person has a
blood level of 5 nanograms or more of delta 9 tetrahydrocannabinol per
milliliter of blood, as shown by analysis of the person’s blood.”
Delta 9
tetrahydrocannabinol (delta-9-THC), for those who don’t know, is the primary
psychoactive ingredient found in marijuana and can be found in the blood stream
after consumption. It basically gives the high associated with marijuana. Delta-9-THC
then quickly breaks down in the body and converts to the inactive metabolite
carboxy-THC.
The difference between
the two is that the presence delta-9-THC in the blood stream of is more
indicative of very recent consumption of marijuana, whereas the inactive
by-product carboxy-THC is essentially the leftovers that can be found in your
urine or blood for days or weeks after consumption.
This proposed change in
Florida law appears to be a reaction to the passing of Amendment 2, and an
attempt to bring Florida in line with other states that have passed DUID laws following
the state legalization of marijuana.
The first issue with
this attempt to change the law is that blood samples can only be taken by law
enforcement in limited situations. For example, if there was an accident
involving death or serious bodily injury, or if the driver appears at hospital
or clinic and administering a breath or urine test is “impractical or
impossible.” So unless additional changes were made to Florida law with regards
to blood draws (and those changes are constitutional), law enforcement officers
are still left with administering a urine test if they have reasonable cause,
which would likely only show the presence of the inactive byproduct
carboxy-THC. Otherwise, this new provision would only assist prosecutors in
serious bodily injury and manslaughter DUI cases.
Another issue with the
proposed change is the arbitrary determination of the presence of 5 ng of
delta-9-THC in the blood sample. States like Washington have passed DUID laws
that have used the 5 ng threshold, but the scientific support behind that
amount is lacking. And of course, everyone is different. The presence of
delta-9-THC may vanish quickly in the blood of an occasional smoker, whereas
the levels may remain higher, for a longer period of time, with a chronic
smoker. And if the marijuana is ingested (eaten), very little delta-9-THC may
end up in the blood stream at all.
Taking into account all
of these factors, creating an absolute limit of 5 ng of delta-9-THC that can
result in a conviction for DUI is dangerous and unfair to those who can now
legally use marijuana under state laws.
Take for example a
driver who regularly consumes medical marijuana in compliance with state law.
That driver is stopped by a law enforcement officer and gives a blood sample
(assuming the legality of requesting one is resolved) that is at or above 5 ng
of delta-9-THC due to sustained higher concentrations from the regular use.
That driver, now, will be arrested and can be convicted of DUID based on
evidence that does not accurately indicate if at the time of driving s/he was
under the influence.
It should be noted that
a 2015 National Highway Traffic Safety Administration report found that when
controlling for variables such as age, gender, ethnicity and alcohol
concentration level, there was no significant increase in levels or direct link
of crash risk associated with the presence of drugs like THC.
I’m confident this will
be the first of many reactionary attempts to change Florida law in the wake of
Amendment 2. As I discussed last month, Florida law already makes it a crime to
drive while under the influence of a controlled substance (including marijuana)
to the extent that the driver is impaired. It is apparent that now that there
will be attempts to specifically target marijuana use by drivers, and
establishing an absolute threshold as is the case with alcohol and the .08
level. These new attempts, though, need to be based on strong scientific
evidence, within constitutional boundaries, and the result of serious
deliberation. The consequences of a DUI conviction are serious and last a
lifetime.
George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.
