It's easy to think of the offense of driving under the influence (DUI) as a crime involving drinking and driving. Most DUI convictions in Florida are for the use of alcohol, and that is likely true as well in other states. While experts have been able to agree on a blood alcohol level that provides evidence of impairment, there is no such agreement when it comes to drugs. Still, a person can be arrested and prosecuted for being under the influence of drugs while driving in Florida.
DUI in Florida
Like every state, Florida makes driving under the influence illegal. For alcohol DUIs, there is a legal presumption that someone is intoxicated if their blood or breath alcohol level (BAL) is at or above 0.08 percent. This is established by chemical testing, most commonly breath testing with a breathalyzer device that the driver must blow into.
Blood tests are thought to yield a more accurate BAL, but they are more intrusive and usually require a trip to a medical facility. Urine tests are also used to test alcohol in the blood, but they are considered less accurate than a breath test.
The Florida DUI statute (Motor Vehicles Code Section 316.193) also applies to driving under the influence of “harmful chemicals” or “controlled substances.” These are more commonly referred to as drugs. Note that even if a person has a lawful medical prescription for a drug, they can be convicted of a drug DUI in Florida. For example, these are some of the common prescription drugs that can result in a DUI if someone is driving impaired after taking them: Xanax, Vicodin, Percocet, Oxycontin, Ritalin, Valium, Codeine, Fentanyl, Morphine and Adderall.
Elements of Drug DUI
There are three required elements of proof in a drug DUI charge. The prosecutor must show that:
- the person was driving, or in actual physical control of, a vehicle in Florida
- they were driving impaired while under the influence
- of certain harmful chemicals or controlled substances
Driving or actual physical control of a vehicle means that the driver is in the vehicle with the capacity to operate it. That means that someone just sitting in the driver's seat of a stationary car could be still be charged with a DUI.
"Under the influence" has a particular meaning under Florida law. A driver is under the influence if, as a result of using alcohol or drugs, their normal faculties are impaired, meaning worsened or diminished in some material or significant way. Normal facilities can mean the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and normally perform the mental and physical activities of daily life.
Harmful chemicals are listed in the statute and include substances recreational drug users "huff" to get high. These include nitrous oxide, isopropyl alcohol and chemicals found in solvents like acetone and toluene. The list of controlled substances is very long and includes all the usual suspects like marijuana, opioids, stimulants, opiates and hallucinogens.
No Per Se Drug DUI
The "per se" DUI law for alcohol creates a legal presumption that a driver is under the influence of alcohol when their BAL is 0.08 percent or higher. Per se means "in and of itself," and it is called a per se DUI because once a prosecutor shows that the BAL is above the legal limit, no further evidence of impairment is required. The driver can present evidence that they were not impaired, but they have the burden of proof so they must present enough evidence to overcome the presumption.
There is no per se DUI for drugs because experts cannot agree on what amount of drugs in a person's system will significantly impair their driving. Some commentators explain this by saying that drugs affect people differently, yet this may be said of alcohol as well. However, the fact remains that a prosecutor cannot rely on a certain level of drugs in the system to prove impairment.
Evidence of Drug Use
The police must have a reasonable suspicion that the person driving a vehicle is under the influence before stopping the car. They must then have probable cause to arrest them for the offense. Often police stop the car for erratic driving, but until the time they talk to the driver, they have no idea whether the driver is under the influence of drugs or alcohol, or whether something else is wrong.
However, once the police talk with the driver, they may get sensory clues. For example, if someone in the car has been using marijuana, there is often a distinctive smell in the vehicle. In addition, the driver may appear drugged. That is, their eyes may be bloodshot, speech may be slurred and their reaction time delayed, giving the officer probable cause to search the car.
If drugs are found, there is probable cause for a DUI arrest. Each drug causes a certain pattern of behavior that police officers look for. These can be used by the prosecutor in addition to evidence of drugs in the person's system.
Implied Consent to Drug Testing
Any person who operates a motor vehicle in Florida is deemed to have given consent to submit to a chemical test. If drug use is suspected, the person must submit to a urine and/or blood test that detects the presence of chemical and controlled substances. The results of the test can be used as evidence in a criminal DUI prosecution.
A driver who is arrested for a drug DUI but who refuses to take a chemical test can lose their license for up to a year and/or be charged with a first-degree misdemeanor, punishable by up to one year in jail. Evidence of the refusal can also be used as evidence in any DUI prosecution to show consciousness of guilt.
Penalties for Drug DUI
The consequences of a Florida drugged driving conviction depend on the prior driving record of the individual and whether there are any aggravating factors, like causing property damage, bodily injury or death. The penalties for a drug DUI are the same as for driving under the influence of alcohol.
If there are no aggravating factors, the penalties for a first offense include $500 to $1,000 in fines; up to six months in jail; probation; up to 50 hours of community service; and a license suspension of between six months and a year.
A second offense within five years of the first offense brings a fine of between $1,000 and $2,000; jail time of between 10 days and nine months; probation; community service; and a license revocation of at least five years. A third offense within 10 years of the prior DUI conviction is punishable by at least 30 days in jail, up to five years in prison and between $2,000 and $5,000 in fines. The conviction also results in a license revocation of at least 10 years.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.