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New DUI Law in Florida Would Increase Convictions

A potential new DUI Law has been introduced in the Senate that would radically increase the number of DUI convictions and even require a jury convict people for a Drug DUI even when not under the influence of the Drug.
Senate Bill 1810 was introduced by Senator Wise on January 7, 2012, and was quickly referred to the Transportation committee. The Bill was set to be heard on January 26, but so far no other action has been taken. There is no companion bill in the House at this time. While it may not be a threat to pass today, it is worth looking at because it may become law tomorrow.

“Weaken or Diminish”

Here is the language from the Bill:




The first obvious change would be to define the word impairment in such a way as to denote a lower level than what is currently considered impairment. Currently, “impairment” is not defined in the Jury instructions. Prosecutors routinely argue that the smallest difference in your ability to perform any normal faculties is impairment. Criminal Defense Attorneys object, arguing it must be something “material”.
In Stave v. Shaw 783 So.2d 1097 (5th DCA 2001), the Appellate Court had this to say:



This is good language for the Defense. We always try to get a Jury instruction in based on this language. Rarely works, but at least you get the State in the position that what constitutes impairment is “for the jury”, so that the State is less likely to argue the issue of defining impairment at all.


Also of note is the inclusion of the language of “balance, coordination, reflexes…” when defining what constitutes a person’s “mental or physical abilities”. Why? Well, currently normal faculties are defined as:
Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. From Florida Standard Jury Instruction on DUI

But as we all know, the arresting DUI officer is not interested in how our client normally performs his walk, judge distances, or acts in emergencies. Rather, he wants to see how he does abnormal things like walking a tight rope.

The language of balancing and coordination certainly seems to play more into the field sobriety exercises that the DUI officer will dutifully request and testify about. I would prefer to have that language if I was the prosecuting attorney.

“Controlled Substances Found in the Urine”

This one is the most troubling. Frankly, there is no way this would ever pass muster the way it is written. Anyway, the language is as follows:



















WHAT?? Most Drug DUI cases in Florida are Urine Cases. In other words, the arresting officer suspects that a controlled substance is causing the DUI (or, the breath result is lower than a .08, so the arresting officer needs to find a different way to try to prove impairment), and requests that the suspect give his Urine. Compulsory blood cases are limited in availability via statute, and not cost effective enough to request to ask for a consent draw, so most of these cases tend to be Urine.
The problem with Urine results? They don’t measure what is influencing the individual. Urine results show what was once affecting the individual, and what is being eliminated currently.
The real problem with Urine results is that, depending on the substance, a marker can be found in the urine days or weeks after ingestion. For example, marijuana influences an individual for 4-6 hours after ingestion. But markers of the marijuana can be found in an individual weeks after ingesting the substance.
Consider the very real, very absurd result if an individual smokes marijuana on January 1st and then decides to drive again days or weeks later. If a metabolite or marker of the past marijuana use is found in his urine weeks later, he would be committing the crime of driving while impaired.

That is ridiculous.

While we will likely be spared of this poorly written bill this time around, it is no secret that DUI laws have become tougher and tougher through the years. That trend will continue. This law might very well be a reflection of the future state of Florida’s DUI law.