How DUI Laws Apply to Driving Under the Influence of Marijuana

Driving under the influence of marijuana or any other controlled substance in Florida is treated in the same way as a DUI involving alcohol. The same penalties apply. But the most experienced Marijuana DUI defense lawyers who specialize in “drugged driving” charges can often win a dismissal or an acquittal in marijuana DUIs. 

In Tampa and throughout Hillsborough County, the DUI defense lawyers at Stechschulte Nell are expert criminal defense attorneys who understand the many legal hurdles prosecutors need to overcome to convict a driver accused of a marijuana DUI. With expertise acquired over decades of legal practice, Attorneys Ben Stechschulte and Amy Nell aggressively defend every marijuana “drugged driving” DUI case. 

Marijuana DUI v. Alcohol DUI 

The Florida law criminalizing DUI does not differentiate between alcohol or marijuana, or any other controlled drug. The same “elements” of the offense must be proven beyond a reasonable doubt to convict a defendant in all DUI cases. 

Every crime contains what the law refers to as “elements.” An element is a separate component of a crime that must be specifically proven beyond a reasonable doubt to establish guilt. Our DUI statute in Florida has two elements the prosecutor needs to prove: 

  1. The defendant operated or was in physical control of a motor vehicle, and 
  2. the defendant was under the influence of alcohol, a chemical substance, or a controlled substance to an extent that impaired their normal faculties, or the defendant had a blood or breath alcohol content of .08 grams of alcohol per 100 milliliters of blood or 210 liters of breath. 

Alcohol DUIs typically involve a police officer reporting that they saw a driver swerving or driving erratically, that they smelled alcohol on the driver’s breath, and that the driver slurred their speech. Then the officer reports the driver failed to pass the roadside field sobriety tests the officer administered. Finally, the police offer a breathalyzer machine result showing a blood-alcohol content (BAC) level above the legal limit of .08. Sometimes, the driver also admits to facts that hurt their defense. 

Marijuana DUIs are very different because the evidence used in an alcohol DUI does not work the same way when alcohol is not the intoxicating agent. Unless a driver has “smoked” marijuana in their car, they are unlikely to emit a strong odor of the drug detectable to the officer. Other physical behavior also differs between someone who is “high” and someone who’s had too much alcohol to drive safely. 

The standardized field sobriety tests (SFSTs) that are commonly used for alcohol DUIs were not designed to detect marijuana or other drug intoxication. For example, marijuana does not affect balance in the same way alcohol does. The two substances affect the brain differently. The result is that field sobriety tests aren’t very informative when trying to find a “drugged driver.”  

In fact, in April 2021, the National Institute of Justice, which is a scientific research arm of the U.S. Department of Justice, reported that there is no correlation between a person’s THC level and their ability to perform field sobriety tests.i THC is the main compound in marijuana that affects the brain. 

A breathalyzer is of no use because it only detects alcohol on a driver’s breath.  

What Evidence Do Police Use in “Drugged Driving” or Marijuana DUI Cases? 

Police and prosecutors learned that alcohol-focused tests were of limited value when trying to win a marijuana DUI conviction. Over time, a different set of tests and examinations was developed, and some police officers were specially trained and certified as Drug Recognition Experts (DRE). However scientific studies attempting to validate DRE accuracy show a high rate of false-positive findings and misidentification of the drug in use. 

Blood and Urine Tests 

Florida law provides that anyone who accepts the privilege of driving on Florida roads is legally consenting to a breathalyzer, a urine test, or a blood test. There are limitations on when police can request a blood test, only when a breath or urine test is impractical or impossible, and the driver is present at a medical facility.  

Urine Test 

An officer can request a urine test if they arrest the driver based on a reasonable belief the driver is under the influence of marijuana or another drug or chemical substance. The tests can reveal the presence of tetrahydrocannabinol (THC) from marijuana. However the test is of limited value because the THC metabolites (the remnants of the active drug left long after use) can be detected up to 30 days after someone uses marijuana. The prosecutor needs to prove the driver was “under the influence” of the drug at the time of the arrest, not that the driver smoked pot within the past month. 

Refusing to submit to the urine test (or a legally requested breath or blood test) is a civil offense for which the first offense penalty includes a one-year suspension of driver’s license. During the year’s suspension, those who complete a DUI training program may be granted a restricted license permitting them to drive only for work or education, and an ignition interlock device could be required. 

Second or subsequent offense refusals carry an 18-month license suspension and can be charged as a criminal misdemeanor carrying up to a year of incarceration and other penalties. 

Blood Tests 

Police may request a suspected Marijuana DUI driver to submit to a blood test to find the level of drugs in their blood system only if a breath or urine test is impractical or impossible, and the driver is at a hospital, clinic, or another medical facility. However, if the suspected DUI case involves an accident in which someone is killed or seriously injured, our Florida statute permits the police to use “reasonable force” to enable a medically qualified person to obtain a blood sample from a driver. 

Tampa & Hillsborough County Marijuana DUI – Get Specialized Defense Lawyers  

Your Marijuana DUI defense lawyer needs to understand the science of marijuana intoxication, the rate at which the human body metabolizes the drug (breaks it down), and how to challenge the introduction of unreliable or illegally seized evidence against you. Defending Marijuana DUI charges is a highly specialized talent resulting from years of study, research, and litigation experience.  

Our attorneys at Call Stechschulte Nell are ready to defend you. Call us today for a case review: (813)280-1244. 

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