DRUGS AND DUI
When people think of DUI it is usually thought of as driving while under the influence of alcohol. However, DUIs are not always caused by or related to alcohol. The Florida statutes state that you can be guilty of DUI by being under the influence of alcohol or a controlled substance. In this respect, the law does not differentiate between an alcohol or controlled substance DUI.
At Keller, Melchiorre & Walsh, we are one of the few criminal defense firms with three former prosecutors that regularly handle DUI defense including drug DUI defense. Drug DUIs are a niche area of law that have specific issues and questions that arise with them.
CAN YOU BE ARRESTED FOR A DUI IF YOU BLOW AND HAVE NO ALCOHOL OR .000 ALCOHOL READING?
Yes, as described above is a common misconception that DUIs must be alcohol related. You can be DUI by being under the influence of a controlled substance.
WHAT DRUGS ARE CONSIDERED A CONTROLLED SUBSTANCE?
There is a lengthy list of drugs that are defined by Florida statutes that are considered controlled substances. The drugs contained in these Florida statutes consist of both street drugs (i.e. cocaine, heroin, etc.) and prescription medications that are prescribed by doctors (i.e. oxycodone, Xanax, etc.)
CAN YOU BE ARRESTED FOR A DUI FROM TAKING A PRESCRIPTION FORM A DOCTOR?
Yes. Even if you are taking a medicine as properly prescribed by your doctor, you can still be arrested and charged with a DUI. Additionally, if you abuse a prescription medication that is properly prescribed by a doctor, you can be arrested and charged with a DUI. The law does not distinguish or differentiate between these two scenarios.
IS IT A DEFENSE TO A DUI IF I HAD A VALID PRESCRIPTION FOR THE DRUGS FOUND IN MY SYSTEM?
No, it is not a defense to the charge itself. However, at a minimum it assists with the defense of the case and is mitigating. It assists with the defense of the case because if your case proceeds to a trial, every juror has been prescribed medication in their life. At a trial you can present evidence that you were validly prescribe a medication by your doctor and you took it as prescribed.
By using medical and pharmacy records, jurors can see that you are following the directions given to you by your doctor. Jurors can relate to this scenario and it can be very sympathetic. However, you still must successfully argue at trial that you were not impaired by taking this medication. The argument that you were not impaired by the medication can be bolstered by your medical and prescription records. Science states that the longer you have taken medication the more tolerant you become to it, meaning the less impaired you become by taking the medication regularly.
HOW CAN THE POLICE TELL YOU TOOK ANY DRUGS WHEN YOU BLOW FOR A BREATH TEST?
The police cannot tell what drugs a person takes when they blow or provide a breath sample. A breath sample is only tested for alcohol content and not for drugs. Generally, after you arrested for DUI, the police will ask you for a breath sample to determine the alcohol content in your system. There are only two options at this point, either you provide a breath sample or your refuse. If you blow and the breath sample does not indicate alcohol, the police will ask you for a urine sample. They will test the urine to determine if there were any drugs in your system.
The second option mentioned above is if you refuse to provide a urine sample. If you refuse to provide a urine sample, the police will not have a test to determine if there are any drugs in your system. The only way that the police can prove there were any drugs in your system is if you made an admission to taking any or there were drugs found in on you or in your car. The police in this situation will always ask you if you have taken any drugs or prescribed medications and when you last took them. The police ask these specific questions because without this information, the DUI charge is very difficult to prove. Even if you admit to taking any drugs, a DUI lawyer can still successfully defend your case as there are other factors to consider that can be successfully argued. For instance, the impairment window of different types of drugs can vary, and if you took medication in the morning, the impairment window for the medication would be over by the evening.
In either of the above-mentioned scenarios, the prosecution will likely have to call a toxicologist to testify in your case. The toxicologist cannot definitively say what you drug you are under the influence of. The extent of the their testimony is that they see impairment that would consistent with a person being under the influence of a particular type of drug.
WHAT ARE THE PENALTIES FOR A DRUG DUI?
The penalties for a drug DUI are the same as for an alcohol DUI. The penalties can include:
- Community service hours
- Fines and court costs
- Complete DUI school (with an evaluation) and any recommended treatment
- Complete a session of the Victim Impact Panel
- Ignition Interlock installed in your car
- SCRAM monitor
- Visual Alcohol Monitoring device
- Car impoundment
- No possession or consumption or drugs or alcohol with random testing at your expense
- Driver’s License Suspension
- Attendance of Alcoholics Anonymous (AA) meetings
These penalties vary depending on certain factors such as if is a first, second, third or fourth DUI.
WHAT IS THE DRIVER'S LICENSE SUSPENSION FOR A DRUG DUI?
There are two potential types of driver’s license suspension for a drug DUI. There is driver’s license suspension from the criminal court and an administrative driver’s license suspension. A DUI defense lawyer can guide you through this process and challenge any administrative driver’s license suspension.
For the administrative driver’s license suspension, the penalties depend on if you provide a breath sample or not. If you provide a breath test and a urine test, your driver’s license will only be suspended, for six (6) months, if your breath sample is above the legal limit of .08. If you provide a breath sample and then refuse to provide a urine sample, your driver’s license will be suspended for twelve (12) months if this is a first refusal and for eighteen (18) months for a second refusal.
For the criminal court suspension, the driver’s license suspensions for a drug DUI vary depending on certain factors such as if is a first, second, third or fourth DUI. In short, the driver’s license suspension can range from six (6) months to permanent.
CAN YOU GET A HARDSHIP LICENSE FOR A DRUG DUI?
It depends. You may or may not be eligible for a hardship license if is it your first, second, third or fourth DUI. The eligibility for hardship licenses can be even more intricate on a drug DUI. Contact us to help determine if under your circumstances you are eligible for a hardship license.
Drug DUIs are more complex than alcohol DUIs. At Keller, Melchiorre & Walsh, we have three former prosecutors that have handled hundreds of drug DUIs including one former prosecutor who supervised all drug DUIs in Palm Beach County. We have the knowledge and expertise to help defend you and guide you through this difficult time in your life.