to Try a Drugged Driving Case in Florida Some Brief Observations from the Bench by Senior Judge Karl Grube Florida Statute 316193 Driving under the influence A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subse ID: 271400
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Slide1
Why is It Difficult to Try a Drugged Driving Case in Florida?
Some Brief Observations from the Bench by Senior Judge Karl GrubeSlide2
Florida Statute §316.193 Driving under the influence
”A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and: (a) 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
;…”Slide3
Elements of a Drugged Driving Offense in Florida
Drove or physically controlled a vehicle,While under the influence of a chemical substance, controlled substance, alcohol or any combination there of.To the extent that their normal faculties were impaired. Slide4
3 Ways to Prove Drugged Driving
The Hard Way. By Using a Statute like Florida’s. Requires proof of existence of a prohibited Drug and that the Drug caused impairment of normal faculties. The Easier Way. By proving that the defendant had a certain level of a prohibited or controlled drug. (Per Se)The Easiest Way
By proving that the defendant had any detectable amount of a controlled drug. (
Zero Tolerance
)Slide5
Per Se and Zero Tolerance
Per se laws criminalize driving with a set amount of prohibited substances in the body. Zero tolerance laws criminalize driving
with any detectable amount of prohibited substances in the body. Slide6
Florida is a “Per Se”
State ONLY When it Comes to Alcohol
A person is guilty
of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state
(
b)
The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood;
or (c
) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.Slide7
Per Se State THC levelsMontana
5 nanograms/milliliter Nevada 2 nanograms/milliliter Ohio 2 nanograms/milliliterPennsylvania
1
nanogram/milliliter
Washington
5
nanograms/milliliterSlide8
Michigan Statute §257.625Zero Tolerance
(8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(
iv
) of the public health code, 1978 PA 368, MCL 333.7214
.Slide9
Dana Reiding, Policy Director
Office of Performance ManagementFlorida Department of Highway Safety & Motor Vehicles
“
As
I stated in the last Impaired Driving Coalition meeting, the refusal rate reported to NHTSA is
36
%
.
We apologize for the confusion. If you have any questions regarding the refusal rate, please contact me
.”Slide10
Florida is tied with South Carolina in having the 4
th
Highest Refusal Rate in the Nation.
More than One out of every 3 persons arrested for Impaired Driving in Florida refuses to provide a blood, breath, or urine sample.
Slide11
Missouri v. McNeely.Officers may
not take blood samples from drivers who refuse to provide them voluntarily, unless they have a warrant or some kind of “exigent circumstance.” The rapid disappearance of alcohol from the bloodstream is not considered an exigent circumstance, the court said, though it might be a factor.Slide12
State v. Geiss70 So. 3d 642 (Fla. Dist. Ct. App. 2011
Section 933.02(2)(a), Florida Statutes precludes Law Enforcement Officers from securing a warrant for a blood draw in misdemeanor cases involving an allegation that a suspect has driven with an unlawful blood alcohol level. Slide13
Section 933.02 Florida statute
The Misdemeanor Warrant statute allows a magistrate to issue a warrant for any “property” that is used as a “means to commit” any crime. The District Court (
in Geiss
) found and ruled that
blood is not the “means to commit” the offense of driving under the influence.Slide14
ARIDEs and DREs
Advanced Roadside Impaired Driving Enforcement (ARIDE) program was developed by the National Highway Traffic Safety Administration (NHTSA) Drug Recognition Expert (DRE) is a law enforcement officer trained to identify people whose driving is impaired by drugs other than, or addition to, alcohol Slide15
What Would Improve the Delivery of Justice in Drugged Driving Cases?
A “Zero Tolerance” or a “Per Se” Statute. A Statute that would criminalized first-time refusals or make penalties commensurate with DUI penalties. A Misdemeanor Search Warrant Statute that would permit obtaining blood samples in refusal cases.More ARIDEs and DREsSlide16Slide17
Who Are the Drugged Drivers We See in Court?Slide18
June 23, 2014Journal of “Public
Health Reports”Nearly 60 percent of marijuana-only drugged drivers were younger than 30, and
39 percent
of prescription drug users were 50 or older. That finding is in line with the increasing use of prescription drugs by older Americans, the study authors said
.Slide19
National Institute of Health 2011 Survey of High School Seniors
Nearly 1 in 6 reported that, within the past 2 weeks, they had driven a motor vehicle after using an illicit drug or drinking heavily. Nearly 1 in 4 said they had recently ridden in a car with such a driver. Altogether 28 percent had put themselves at risk, within that short time frame, by being in a vehicle whose driver had been using marijuana or another illicit drug, or had drunk 5 or more alcoholic drinks. Slide20
National Institute of Health 2011 Survey of High School Seniors
These rates had all risen nearly 20 percent in only 4 years, due almost entirely to an increase in driving after smoking marijuana.Slide21
2013 National Survey on Drug Use and Health (NSDUH)
9.9 million people aged 12 or older (or 3.8 percent of adolescents and adults) reported driving under the influence of illicit drugs during the year prior to being surveyed. Slide22
2013 National Survey on Drug Use and Health (NSDUH)
This was lower than the rate in 2012 (3.9 percent) and in 2002 (4.7 percent). By comparison, in 2013, an estimated 28.7 million persons (10.9 percent) reported driving under the influence of alcohol at least once in the past year. (This percentage has dropped since 2002, when it was 14.2 percent.)Slide23Slide24
Crashes and Drugged Driving
Florida’s suspected drugged driving related crashes went up a whopping 61% from 2010 to 2011 and the fatalities increased almost 80%. All states have a problem but most do not have the data to verify exactly how serious the problem is. In fact, Florida only tests about 58% of those involved in a crash or serious bodily injury for drugs. Some states, such as California test 89% while Colorado tests 49.5%We Save Lives 2014