New Changes to Florida's DUI Laws Targeting Marijuana Use?

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.

Driving While Following Doctor's Orders: Medical Marijuana and Driving in Florida

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.

Your face has likely been in a virtual photo lineup

The face of nearly one in two American adults are in law enforcement face recognition networks. So whether you like it or not, and without your permission, chances are your face has been used in some kind of virtual photo lineup used in a criminal investigation.

                   

That's because those numbers are not only made up of mugshots taken of people arrested by law enforcement. That's especially true if you live in Florida.

A report was recently released by Georgetown University Law School following a year-long investigation that included over 100 public records requests to law enforcement agencies and police departments across the country. According to the report, the faces of over 117 million American adults are stored in law enforcement face recognition databases, and close to 64 million Americans have no say in the matter; Florida being one of the states.

What are we really talking about here, though, when we say face recognition? Many criminal defense attorneys, and even the public at large watching television crime dramas, will know about a photo lineup or even a physical lineup. Typically a police officer will compile six photographs for a lineup to show a witness, with one being a known suspect and the other five looking generally similar. Many times that is not the case, and I’ve successfully defended clients with highly suggestive and impermissible lineups where the lineup was all but singling out my client. Nevertheless, the witness will look at those six photos and pick out the one that he or she is confident committed the act.

As the report defines it, face recognition is “the automated process of comparing two images of faces to determine whether they represent the same individual.” Basically an algorithm is used to “find” a person’s face in a picture (characteristics and features that are numerically quantified), and then using the algorithm that “face” is compared with others in a database of other faces to find a set of matches. The results don't specifically identify a single match, but instead identify a list of candidates or top matches that are then provided to law enforcement. 

The report focused on face identification (as opposed to verification), which seeks to identify an unknown face. Law enforcement, for example, could stop an individual and snap a photo using their cellphone or tablet and run the photo on their squad car computer to determine a match. Other examples include identifying individuals after arrest (with other cases); identifying suspects during investigations with images from security cameras or smartphones or social media; and real-time video surveillance where an image of an individual law enforcement is looking for is uploaded and compared with faces that are extracted real-time from live security video feeds (a match would alert a law enforcement officer nearby that camera). Ultimately, a human determines who the final match is based on the list of candidates.

Image by George C. Palaidis

The report uncovered some startling discoveries, as I’m sure you could expect. The first problem is that no state has passed a law comprehensively regulating police face recognition and there are no known agencies which require warrants to search these enormous databases of photographs. This means law enforcement agencies are free to use and search the systems without any guidelines, boundaries, or parameters restricting their use.

Many major police departments are also now exploring real-time face recognition on live surveillance camera videos (like the giant cameras you’ll see on street corners in New York City). This same technology could also be applied to body cameras and dashboard cameras as both are used by more and more law enforcement agencies.

Since there are no laws or rules regarding the use of the technology, most agencies have no rules prohibiting officers from using face recognition to track individuals engaging in political, religious, or other protected free speech.

Further, little is done to ensure that the systems are even accurate, and the human (police officer) factor utilized to determine if a candidate photo is in fact a match is largely wrong (typically wrong about half of the time). These systems also tend to disproportionately affect African Americans.

Here in Florida the Pinellas County Sheriff’s Office has a system called FACES (Face Analysis Comparison & Examination System) that searches over 33 million faces, including 22 million Florida driver’s license and ID photos and over 11 million law enforcement photos. Florida law enforcement can also search the FBI’s database of 24.9 million mug shots. Using the system, the FBI’s Florida field office and 243 other local, state, and federal agencies run close to 8,000 monthly searches without requiring even a reasonable suspicion before running a search!

Regardless of whether you've committed a crime or not, Florida law enforcement agencies are using your driver’s license photo (along with other photographs) to create a virtual line-up when looking for the identity of a suspect accused of a crime. And you have no say in the matter.

You may ask ‘what’s the big deal if I’m not guilty of anything?’ Well, an experiment was conducted by a professor at Michigan State University which ran police security camera photos of the Tsarnaev brothers, who committed the Boston Marathon bombings, against a database of a million driver’s licenses. The system did find the younger brother in a match of 10 possible candidates, but it also identified nine other people who were clearly not guilty. What would have happened if law enforcement had used that system in searching for the bombers and showed up at the homes of the nine other people?

We already run into the same problem with eye witness identification and photo lineups. I once successfully represented a client accused of armed robbery who was “identified” using a drawing from a police sketch artist based on the description from the victims. Another officer thought the sketch resembled my client, and he was arrested solely on that identification. Needless to say, the sketch looked nothing like my client. But he was stuck in jail for months as I had to gather the evidence to prove to the prosecutor that my client was innocent. Even after passing a polygraph, the prosecutor was unwilling to dismiss the case. On the eve of trial the proper decision was made and the case was dropped, but during that time period my innocent client had to sit in jail where he couldn’t work, pay bills, be with his family, and had suffer the stigma of this serious criminal charge.

These same problems can and will arise as law enforcement agencies move headstrong into face recognition technology and systems without any guidance, laws, or regulations keeping it in check. The report makes several recommendations, including: passing comprehensive laws regulating law enforcement’s use of face recognition; that police should not run face recognition searches of license photos without clear legislative approval; that accuracy tests should be created and expanded to ensure the highest accuracy with the systems; and that community leaders should press for policies and legislation that protect privacy, civil liberties, and civil rights.  

We’ve seen it many times in the movies and in real life: technology can be a good and useful thing, but it can also be manipulated and abused, whether intentionally or not. This new and evolving technology should be held in check to prevent any misuse and abuse by its users. Otherwise it could be you identified in a virtual lineup based on your driver's license photo and accused of a crime you just didn't commit.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.