With what appears to be the imminent legalization of medical marijuana in Florida, questions have begun to arise as to what may happen in the event Officer Friendly believes that a citizen is driving under the influence of marijuana. In Florida’s an officer’s request for breath, urine, or blood must be made incident to a lawful arrest. Before the law enforcement officer can make such a request under Florida’s implied consent statute, the driver must be arrested. This does not prevent the law enforcement officer from seeking a driver’s consent before an arrest, such request for consent should be politely but firmly declined.
Typically, before making such a request, the police officer will administer field sobriety exercises to determine whether the driver is under the influence. Law enforcement officers who are trained to give such exercises as they relate to impairment by controlled substances, including pot, are called “Drug Recognition Experts”. There are only a limited number of them on the local police force. After the driver has been detained, the officer will seek the assistance of a Drug Recognition Expert to administer the field sobriety exercises relating specifically to drug impairment. In the event the law officer concludes that a person is driving under the influence of pot, the driver will be arrested. At that point, the law enforcement officer will request the driver’s urine, or in situations where the request for urine is impossible or impractical, a request for blood.
An interesting question arises as to how the State can prove impairment by marijuana at trial. When the urine and/or blood is sent off for testing, the test results will indicate whether or not a certain substance shows up in the specimen tested. These test results are typically reported connotatively in terms of nanograms. A problem for the State in proving impairment by pot is that marijuana remains in a person’s system for approximately 30 days, or longer, depending on the person’s body type. Someone could have smoked pot weeks ago yet still have the substance in their system. Clearly, they would not be impaired from the pot at the time the test was administered. If the State was attempting to successfully prosecute a person for driving under the influence of marijuana, it would need the evidence of impairment, typically obtained from field sobriety exercises administered by the Drug Recognition Expert, as well as the laboratory tests confirming the presence of a controlled substance in the system.
Of course, there may be other situations in which evidence arises of a person driving under the influence of marijuana, such as pot smoke billowing out of the car when the cop approaches the vehicle, the roach still burning in the ash tray when the vehicle stop is performed, etc. However, the information set forth above is how the State typically proceeds on these types of prosecutions going forward. As in all situations, it is important to hire counsel experienced in these cases. Testing positive for pot does not end the process. In fact, a positive test result is virtually meaningless if the State cannot then prove impairment. We have had substantial experience litigating this issue, so feel free to contact us if you are charged with driving while stoned.