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The Drugged Driver and the Need for a Per Se Law

Criminal Law

Most people are familiar with the proble mscaused by those persons who are commonly referred to as “drunk drivers.” In 1996, approximately one-third of all traffic fatalities in Florida were alcohol-related.1 In an effort to combat this problem, the state currently has a two-pronged attack in place. Under the “impairment” theory, a person is guilty of driving under the influence if “he is driving or in actual physical control of a motor vehicle” and “under the influence of alcoholic beverages. . . when affected to the extent that the person’s normal faculties are impaired.” F.S. §316.193(1)(a) (1997). In addition, even if impairment cannot be established, a person can be found guilty of driving under the influence if, while driving, he or she had “a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood” or “a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.” F.S. §316.193(1)(b),(c) (1997). This latter section, originally enacted in 1974 as a separate offense, was consolidated with the impairment statute in 1982 and has become an alternate means by which the state can obtain a conviction that carries the same penalties as driving while impaired. See State v. Rolle, 560 So. 2d 1154 (Fla. 1990).

This scheme appears to be working well in cases where the impairment is caused by the consumption of alcoholic beverages. But what about the “drugged driver”—the person who takes to the highway while under the influence of illicit narcotics? While Florida law has provided that should such a person be proven guilty of driving while his or her normal faculties were impaired by such drugs he or she would suffer the same penalties as the “drunk driver,”2 the proof necessary to obtain such convictions remains elusive. Where a traffic crash has resulted in serious bodily injury or death, a law enforcement officer can compel a defendant to give a blood sample. F.S. §316.1933(1) (1997). But in all other cases, the officer is only given the authority to request that the defendant submit to a urine test if the officer has “reasonable cause to believe” that the person under arrest has been driving while under the influence of controlled substances. F.S. §316.1932(1)(a) (1997). The typical scenario under which this would occur is when the driver has exhibited signs of impairment and his breath alcohol level registers well below what his appearance would indicate. In fact, it is only under such a set of circumstances that results of a urine test would be admissible. This was demonstrated in the leading case of State v. McClain, 525 So. 2d 420 (Fla. 1988). McClain had been charged in an alcohol-related vehicular manslaughter. Evidence gathered shortly after the crash showed that he had a blood alcohol level of 0.14 and a trace amount of cocaine in his system. The trial court excluded evidence of the cocaine. Both the Fourth District Court of Appeal and the Florida Supreme Court affirmed this ruling. The Supreme Court ruled that, in accordance with F.S. §90.403, “the probative value of the evidence of cocaine in McClain’s blood was minimal.” McClain, 525 So. 2d at 422. The court also noted that the chemist who testified at the trial could not express an opinion as to the effect of the cocaine on McClain’s driving.3

The Supreme Court harmonized this case with a decision handed down by the First District two years earlier in State v. Weitz, 500 So. 2d 657 (Fla. 1st DCA 1986). Weitz had been charged with DUI. He had been involved in an accident, failed a series of field sobriety exercises, and smelled of alcohol. He submitted to an intoxilyzer test which showed a breath alcohol reading of 0.017, well below the 0.10 standard that then existed under which impairment could be presumed.4 This inconsistency gave the officer “reasonable cause” to believe that Weitz might be under the influence of controlled substances and Weitz did submit to a urine test “which disclosed the presence of an unquantified amount of methaqualone, cocaine and phenobarbital.” Id. at 658. The trial judge suppressed the results of the urine test.

The First District Court of Appeal reversed, holding that the results of this test were relevant to prove that Weitz was under the influence of these drugs at the time of his driving. The court allowed the introduction of such evidence even though, at the trial court level, there was no evidence presented as to the effect of these drugs on Weitz’ normal faculties and that it was impossible to determine the degree of impairment based on the mere presence of these drugs in his urine. Id. at 658.5

Another case that discussed this issue of the relevance of the presence of drugs in a defendant’s system concerned the introduction of evidence of presence of cocaine in a DUI manslaughter case where such evidence was obtained through a blood test. In State v. Tagner, 673 So. 2d 57 (Fla. 4th DCA 1996), the defendant had a 0.10 blood alcohol level and 0.34 mg/l of cocaine in his system within an hour after the crash. The experts who testified at his trial agreed that this was more than a trace amount of cocaine, even though it was not possible to correlate the “effect of blood levels of cocaine with levels of functional impairment.” Id. at 58. Because the amount of cocaine was quantifiable, it was admissible, relevant evidence given the balancing test required by F.S. §90.403.

In State v. Lutton, 2 Fla. L. Weekly Supp. 572 (Fla. Palm Beach Cty. Ct., Nov. 29, 1994), the defendant was stopped after he was suspected of driving under the influence. The arresting officer smelled the odor of marijuana in the car, and also found an unsmoked marijuana cigarette in the vehicle. The defendant refused to submit to a breath test. The trial court denied defendant’s motion to exclude the evidence of the marijuana, holding that “the presence of even a small amount of marijuana in his system may be significant because it can provide an explanation of his impaired conduct.” Id.

While these cases seem to clear up one aspect of this question, that of the admissibility of evidence of drug use in impairment cases, they do not answer the more important question: If a person has exhibited signs of impairment while driving, and if his breath alcohol level is low, can he be convicted of driving under the influence on the basis of evidence of impairment and the presence of an unquantified amount of illicit drugs in his urine? While an affirmative answer may be implicit in reading Weitz and McClain, it is not explicit and, given the nature of the scientific testimony as outlined in these cases, especially the fact that urine tests do not provide quantifiable results, such a positive response appears doubtful. Further supporting this conclusion is the fact that drugs, unlike alcohol, do not have presumptive levels of impairment built into the statutory scheme.6

In fact, two county court cases from Miami suggest that just such a scenario would likely not lead to a successful prosecution. In State v. Beam, 2 Fla. L. Weekly Supp. 444 (Fla. Dade Cty. Ct., Aug. 22, 1994), the court observed that “the presence of a drug or drugs in a motorist’s urine or blood does not necessarily mean that the motorist was under the influence of the drug or drugs at the time of driving.” Id. at 446. Because of this, the court saw the need for the introduction of testimony from a drug recognition expert (DRE). Through a 12-step process, the trained DRE can testify if a person is under the influence of alcohol and/or drugs, and also can identify the type of drugs that the person may be using.7

But even with the use of such evidence, the state still would have difficulty in proving its case. As another Dade County court observed:

[T]he mere fact that DRE testimony is admitted does not necessarily mean that such will be sufficient to support a guilty verdict or judgment. . . [T]he State must introduce some direct and/or circumstantial evidence that the defendant was impaired by a controlled or chemical substance including, but not limited to, toxicological test results, admissions, unusual odors, drug specific observations, or the presence of a drug or drugs on the defendant’s person or within easy reach, in order to meet its burden.

State v. Williams, 3 Fla. L. Weekly Supp. 70, 71 (Fla. Dade Cty. Ct., Jan. 19, 1995); aff’d, 22 Fla. L. Weekly D752 (Fla. 3d DCA Mar. 18, 1998).

Thus, despite the admissibility of all this evidence in the state’s favor, the burden remains great.

One possible solution to this problem (from the state’s viewpoint) is to enact a “per se” law involving illicit drugs, similar to the one currently in existence for blood or breath alcohol levels of 0.08 or above. Under such a statute, a person could be found guilty of driving under the influence if he was operating a motor vehicle while any illicit drugs were present in his system. A proposed addition to the Florida Statutes is set forth below. Opponents likely will question if there is a rational relationship between the unquantified presence of illicit drugs and impairment. Scientific evidence is now available to show that there is such a relationship and thus supports the implementation of such legislation.

The U.S.F. Study

On December 9, 1997, the University of South Florida College of Public Health reported the results of research conducted on suspected impaired drivers in Hillsborough County. During a three-month study period in 1996, approximately 300 voluntary urine specimens were collected from drivers who had been arrested for driving under the influence of alcohol or drugs and who had been taken to the Hillsborough County Sheriff’s Office central breath testing unit for processing. These urine specimens were analyzed for a panel of five drugs specified by the Substance Abuse and Mental Health Services Administration (SAMHSA) National Laboratory Certification Program. Those drugs were: marijuana, cocaine, opiates, amphetamines, and PCP.
The data indicate that overall 25.7 percent of the specimens collected were confirmed positive for one or more illegal drugs. Of the 288 subjects who consented to provide both breath and urine samples more than one quarter (26.4 percent) were found positive for illegal drugs. Of those individuals who were over the “legal limit” (0.08 breath alcohol level) 25.2 percent were also confirmed positive for one or more illegal drugs. Perhaps more significant was the finding that of those individuals whose levels of breath alcohol were below 0.08, 41 percent tested positive for one or more illegal drugs. Of the six of these individuals who registered a zero breath alcohol level, four (67 percent) tested positive for one or more of the screened drugs. far the most common drug found was marijuana at 62.5 percent, and trailing close behind was cocaine at 51.3 percent.

Drug Testing Summary

BAC # of persons % drug positive

>0.08 266 25

<0.08 22 41

Refusal 15 13

Total 303 26

The overwhelming majority of study subject driver arrests were due to routine traffic infraction/DUI stops. However, 16.5 percent of the driver arrests were due to a crash involving property damage and 5.6 percent involved an injury. Approximately 20.4 percent of those arrested who tested positive for alcohol only were involved in a crash involving property damage or an injury, but this percent rises to 34.6 percent for those who tested positive for alcohol and cocaine and 33.3 percent for those on alcohol plus marijuana and cocaine.8

“Per Se” Laws in Other States

“Per se” drug laws, i.e., statutes that make it illegal to be driving with any level of illicit drugs in the system, currently exist in varying forms in a number of states. Arizona’s law, Ariz. Rev. Stat. §28-692(A)(2),(3), makes it illegal to drive “while there is any drug defined in section 13-3401 or its metabolite in the person’s body.”9 This provision survived a constitutional attack in the case of State v. Phillips, 873 P.2d 706 (Ariz. Ct. App. 1994). In rejecting arguments based on, inter alia, the improper use of the state’s police power, the Arizona court stated: “We believe that the legislature was reasonable in determining that there is no level of illicit drug use which can be acceptably combined with driving a vehicle: the established potential for lethal consequences is too great.” Id. at 710. The fact that there was no meaningful quantification of the relationship of the use of these drugs with evidence of impairment did not deter the court from holding that such a law was valid.

Georgia has a similar law, Ga. Code Ann. §40-6-391(a)(5), the validity of which was upheld in 1995 by that state’s Supreme Court in Stevenson v. State, 453 S.E. 2d 18 (Ga. 1995). The court based its ruling on a fundamental principle: “Subsection (a)(5) raises less cause for concern than does subsection (a)(4) [the 0.10 blood alcohol level statute] because, unlike alcohol, Georgia law prohibits the use of marijuana altogether, without regard to the operation of a motor vehicle.” Id. at 20.10 Similarly, in Kevinezz v. State, 454 S.E. 2d 441 (Ga. 1995), the same court observed that this statute “provides adequate notice that a person who ingests marijuana or any other drug specified. . . and then drives a motor vehicle does so at his or her own peril of violating [this law].” Id. at 442.

The State of Illinois also has a per se drug law, found in §11-501(a)(5) of the Illinois Vehicle Code, prohibiting the driving of a motor vehicle while there is any amount of cannabis or controlled substance in the person’s blood or urine. Once again, the fact that impairment could be not measured did not, in the Supreme Court of Illinois’ eyes, render the statute invalid:
Given the vast number of contraband drugs, the difficulties in measuring the concentration of these drugs with precision from blood and urine samples and, finally, the variation in impairment from drug to drug and from person to person, we believe that the statute constitutes a reasonable exercise of the police power of the State in the interest of safe streets and highways.

People v. Fate, 636 N.E.2d 549 (Ill. 1994).
Illinois’ law has a unique feature, requiring that the presence of the drugs result from the “unlawful use or consumption” of the specific drugs. Ill. Rev. Stat. 1991, ch. 95½, ¶11-501. This specific provision led to a lower court upholding the validity of the statute in the year preceding the Supreme Court’s Fate decision. In People v. Gasman, 622 N.E.2d 845 (Ill. App. 1993), the court keyed on this “unlawful use” provision to show that the statute does not create criminal liability for those people who may have ingested controlled substances either inadvertently or unknowingly. Id. at 853. It also rejected an equal protection argument premised on the fact that the law was treating two supposedly similarly situated groups — those who ingested knowingly and those who ingested inadvertently — in different ways. One problem with the wording of this statute is the question of how the state would be able to prove unlawful use in its case in chief. It is difficult to imagine inadvertent use of cocaine and similar illicit drugs. In addition, research has debunked the myth that positive urine screens could result from casual exposure to marijuana smoke.11

Indiana also has a per se drug statute, Ind. Code §30-5-1(c). The wording of this statute, however, requires that the illicit drugs be found in the blood of the driver. As a result, urine tests are not sufficient to sustain a conviction under this law. Moore v. State, 645 N.E.2d 6 (Ind. App. 1994). Wording of this sort could present a problem in Florida where, as previously stated, blood tests can be mandated only in situations where there has been death or serious bodily injury to another person. Similar wording is found in the Rhode Island statute, which talks in terms of the “blood presence” of a scheduled controlled substance. R.I. Gen. Laws §31-27-2(b)(1) &(2).

“Per se” drug statutes also exist in Minnesota and Utah.12 North Carolina has an interesting provision that affects only people less than 21 years old. While for adults the legal limit is 0.08, minors can be prosecuted for driving while there is any alcohol present in their body or any controlled substance in their blood. N.C. Gen. Stat. §20-138.3.

The Proposed Solution

It is critical to note that the rationale for the validity of such laws expressed in some of the cases cited above is very familiar to that which was employed by the Supreme Court of Florida in Roberts v. State, 329 So. 2d. 296 (Fla. 1976), the case that upheld the validity of this state’s per se blood alcohol law. The court adopted the wording of the Utah Supreme Court when stating: “We can see no reason why a person of ordinary intelligence would have any difficulty in understanding that if he has drunk anything containing alcohol, and particularly any substantial amount thereof, he should not attempt to drive or take control of a motor vehicle.” Id. at 297, citing Greaves v. State, 528 P.2d. 805, 808 (Utah 1974). If this is the logic used to justify a situation where a person has ingested a legal substance, it makes even more sense in those situations where an illicit substance has been introduced into the driver’s system.

As presently drafted the proposed “per se” law would create two new subsections to F.S. §316.193, the current DUI law:

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle within this state and:

* * *

(d) There is any amount of a chemical substance set forth in s. 877.111 or any substance controlled under chapter 893 whose possession is unlawful pursuant to chapter 893.13 present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.
(e) It is a defense to subsection 2(d) that the person consumed the substances set forth in that subsection under a valid prescription or order of a licensed medical practitioner who acted in the course of the practitioner’s professional practice.

The passage of such a law would not create any intrusions into a person’s privacy that do not already exist. Urine could be requested only under the same criteria as it is now — when a person has been stopped for probable cause and the law enforcement officer has reasonable cause to believe that the person may be under the influence of a controlled substance. Those persons who can prove that they have ingested such drugs legally, i.e., through a valid prescription, have a defense built into the statute.13 The law would, however, put drivers in Florida on notice that, should they show signs of impairment while driving that can’t be explained by the use of alcohol, and if they have ingested illicit drugs, this fact alone can be sufficient to convict them of driving under the influence and subject them to the serious penalties that accompany such a conviction.

The cases construing statutes in existence in these other states show that there does not have to be a scientifically established relationship between the presence of drugs and signs of impairment to make the laws constitutional — in fact, it is the very lack of such a provable relationship that has led the courts to uphold these statutes’ validity. The study discussed above demonstrates that such a relationship does in fact exist. Other studies have demonstrated a positive correlation between drug use and traffic fatalities.14 To reduce the incidence of drug-related crashes and protect the lives and health of the general public the law must allow for “per se” prosecution based on urine drug test results. There are strong rational and legal reasons to support a “per se” drug law. q

1 1996 Traffic Crash Facts, Florida Department of Highway Safety and Motor Vehicles, p. 28.
2 Fla. Stat. §316.193(1)(a) reads: “The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111 or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired.” Section 877.111 lists the chemicals commonly referred to as inhalants. Chapter 893 lists all those drugs the manufacture and distribution of which are controlled by law.
3 See also West v. State, 553 So. 2d 254 (Fla. 4th D.C.A. 1989) (The court held that admitting evidence of a trace amount of valium in the defendant’s blood was reversible error in a DUI manslaughter prosecution.).
4 Effective January 1, 1994, Florida’s “legal limit” was reduced to 0.08.
5 See also Costello v. DHSMV, 5 Fla. L. Weekly Supp. 349 (Fla. 6th Cir. Ct., Jan. 21, 1998 (The court upheld a driver license suspension based on a refusal to submit to a urine test. The arrestee performed poorly on field sobriety exercises and had breath alcohol results of 0.063 and 0.061: “[T]he arresting officer had reasonable cause to believe that Petitioner was driving under the influence of controlled substances and therefore was justified in requesting that Petitioner submit to a urine test.”).
6 “If there was at that time a blood alcohol or breath alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.” Fla. Stat. §316.1934(2)(c) (1997).
7 The DRE protocol is explained in State v. Beam, 2 Fla. L. Weekly Supp. 444, 445.
8 The details of this study are found in Buchan, Evaluating On-site Drug Testing Technology for Use in Estimating the Prevalence of Illicit Drugs in Reckless Drivers, University Of South Florida College of Public Health, Department of Epidemiology and Biostatistics Doctoral Dissertation, 1998.
9 Section 13-3401 deals with, inter alia, cannabis, opiates, barbiturates, and noxious vapor-releasing substances. See State v. Phillips, 873 P.2d 706 (Ariz. Ct. App. 1994), 708 n.1.
10 These subsections have since been renumbered. Alcohol is now under subsection (5) and drugs are now under subsection (6).
11 If 50 ng/ml, the standard cut-off level now employed, is used as the threshold for cannabinoids in determining cannabinoids in urine, this rules out positive cannabinoid results due to passive inhalation under usual conditions. In those studies where positive urine drug tests were obtained, exposure conditions have been characterized as unrealistic. Cone and Johnson, Contact Highs and Urinary Cannabinoid Excretion after Passive Exposure to Marijuana Smoke, 40 Clin. Pharm. Ther 247 (1986).
12 Minn. Stat. Ann. §169.121(1) prohibits driving with an amount of a controlled substance in the body. Marijuana is not included in this prohibition. Utah Code Ann. §41-6-44.6 prohibits driving with any measurable controlled substance in the body. An exception is provided for use under a valid prescription.
13 In a similar vein, the court in Carter v. State, 23 Fla. L. Weekly D962 (Fla. 4th D.C.A., April 15, 1998) held that an instruction on involuntary intoxication should be given when “there is evidence that (1) the defendant unknowingly ingested a substance which caused him to become impaired and (2) drove without the knowledge that he was or would become impaired while driving.”
14 The National Institute on Drug Abuse and the National Transportation Safety Board sponsored an investigation of fatal-to-the-driver trucking crashes in eight states over a one-year period. Comprehensive drug screens on blood specimens collected from 168 fatally injured truck drivers indicated that one or more drugs were detected in 67 percent of the drivers and 33 percent of the drivers had detectable blood concentrations of psychoactive drugs or alcohol. Crouch et al., The Prevalence of Drugs and Alcohol in Fatally Injured Drivers, 38 Journal of Forensic Sciences 1342 (1993).

Mark F. Lewis is the chief of the traffic and misdemeanor divisions for the State Attorney’s Office in Tampa. He received his B.A., cum laude, from the State University of New York at Stony Brook in 1968 and his J.D., with honors, from the University of Florida in 1976.

Betty J. Buchan received her Ph.D. in drug epidemiology in 1998 from the University of South Florida College of Public Health, where she currently serves as a research assistant professor. She has had over 20 years’ experience as a forensic toxicologist.

The authors gratefully acknowledge the assistance of Dr. J. Michael Walsh and Dr. Ron Kramer in the administration of the research and for their suggestions with regard to the implementation of a per se drug law.

Criminal Law