A common misconception about a DUI is that the accused must be under the influence of alcohol in order to be arrested and charged with this crime. That misconception often leads to people getting DUIs without even realizing it.
Florida's DUI statute (Fla. Stat. § 316.193) includes both "alcoholic beverages" and "any chemical substance" when referring to impairment. A chemical substance may be marijuana, cocaine, or even a prescription drug such as oxycodone (OxyContin), alprazolam (Xanax), or hydrocodone (Vicodin).
Alcohol-related DUIs are most common - I believe - because the effects of alcohol are most easily detected. Now officers' arrest reports all read the same, but there is some truth to the fact that a person under the influence of alcohol may exhibit characteristics such as bloodshot eyes and slurred speech. They may also have an odor of alcohol on their breath.
Now if an officer actually catches you smoking marijuana while driving, then it may be easier to prove impairment. However, what if you smoked marijuana earlier that day, or used cocaine within the last 24 hours? Or what if you had taken a painkiller?
If you are stopped by police and they suspect that you are under the influence of drugs, they can still request that you perform field sobriety exercises (roadside tests). They can also request a breath sample, although if you have not been drinking you should blow nothing but zeroes.
However, if they suspect that you are high on drugs, they will bring in what's known as a DRE, or drug recognition expert. These "experts" are not medical doctors but fellow police officers who have taken some weekend course on recognizing signs of drug impairment and somehow they become experts (it might be a tad obvious that I'm a defense attorney).
These DREs can supposedly look at you and determine what you are on. Of course, if you consent to give a urine or blood sample, they will know for sure what you are on. And if you refuse, then your refusal will be used as evidence of a guilty conscience, much like it is during a regular old alcohol-related DUI.
If you are involved in a car accident where it is impossible or impractical to seek consent, the cops may obtain a blood draw without your consent. If there are drugs in your system, you could be charged with DUI, felony DUI for serious bodily injury, or even DUI manslaughter if God forbid somebody has died.
Now the problem with this is that traces of the drug may show up in your system even if you are not under the influence of the drug. For example, maybe you smoked marijuana two days ago. You haven't smoked for about 48 hours and you are in a serious car accident. Should the officers suspect impairment and a forced blood draw is taken, you could find yourself charged with a DUI offense even if you weren't high at the time of the crash. That's where a good defense attorney may come in handy who could call a toxicologist to testify on your behalf on how the levels of the drug in your system show that the drug was ingested prior to the crash. The problem remains, a jury will know that you had taken drugs and they may not like that fact in and of itself.
DUI remains a very complicated area of criminal law, but also one of the most serious. Florida has some of the toughest DUI penalties in the country.
Eric Matheny represents clients charged with all DUI offenses in Miami-Dade and Broward.