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DUI Drug Cases


Just like in many other parts of the country, drug abuse is a growing problem in Florida. A generation ago, most people associated this behavior with back alleys and illegal behavior. Today, the two biggest problems in Florida are prescription drugs and heroin. Today’s prescription pain relievers, such as Oxycontin and Percocet, are extremely powerful and highly addictive, and many people are hopelessly hooked after only a few weeks of steady use. When the initial prescription runs out, there are many doctors in Florida’s shadows willing to write future prescriptions without asking too many questions. Other people turn to heroin, because it is relatively cheap, widely available, and generally considered the next step up the ladder from prescription drug abuse.

Most DUI alcohol prosecutions are based on the per se provisions in 316.193(b) and (c). Under these laws, drivers are impaired as a matter of law if either a breath or blood test finds that their BAC exceeds .08 or whatever prohibited level applies. Since the United States Supreme Court approved of refusal-to-submit laws designed to coerce more drivers into providing breath samples, the number of per se prosecutions may vault even higher.

But there is no per se provision in 316.193(a), the DUI drug provision. Instead, these prosecutions must follow a two-step process.

Prohibited Substances

To trigger criminal liability, prosecutors must first show that allegedly drugged drivers had one of the substances in either 877.111 or 893.033 in their systems. Even though Florida voters legalized marijuana for medicinal purposes, cannabis is still a controlled substance and it is on the prohibited list, and a prescription is probably not a defense to a DUI case. However, prosecutors must still prove impairment, as outlined below.

Typically, the state introduces a blood sample taken prior to the arrest to show that there was a prohibited substance in the defendant’s blood. This portion of the proof is rather objective, because unless there were irregularities with the blood sample or other evidentiary issues, the defendant’s blood either contained a prohibited substance or it didn’t.

Proving Impairment

However, the second part of the prosecution is highly subjective and much easier to challenge. To prove abstract impairment (i.e. there was enough Substance A in the defendant’s blood to theoretically cause impairment), the state usually calls a police chemist or other technician to interpret the results. These individuals usually have some specialized training but not very much, so their testimony is subject to collateral attack, particularly by a defense expert with a contrary opinion.

Proving actual impairment is even more difficult, because in most cases, prosecutors must rely on circumstantial evidence from the field sobriety tests. The three government-approved tests are:

  • Heel to Toe Walk: It is not easy for anyone to walk a straight line heel to toe, especially if they are at all mobility impaired or the test conditions are anything less than ideal.
  • Horizontal Gaze Nystagmus: Certain allergy and seizure medications are just a few of the legal substances that can cause false positives in this test.
  • One Leg Stand: Particularly in this test, officers often testify that the defendants “failed” the test because of simple technicalities like starting with the wrong foot.

Prosecutors must prove all three DUI drug elements (prohibited substance, theoretical impairment, and practical impairment) beyond any reasonable doubt.

Contact Experienced Attorneys

DUI drug cases are difficult to prove in court. For a free consultation with an experienced criminal defense lawyer in Port St. Lucie, contact Eighmie Law Firm, P.A. Home and jail visits are available.




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