“What You Should Know About DUI Law: Breath, Blood and Urine”

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

Moby Badtooth was back on the prowl. His teeth had fallen into disrepair because of a lifelong love affair with junk food. After years of frustration with the opposite sex, he decided to have an oral surgeon completely overhaul the dental disaster. The night after the surgery, Moby put on his shiniest shirt, polished his beautiful new teeth and drove to the bars in Coconut Grove. He nursed a few beers, not to get drunk, but to give the appearance that he belonged, confident that he was under the .08% blood alcohol limit. When his efforts of finding a soul mate fell flat, Moby shrugged his shoulders, jumped in his hatchback and started to drive back home.

As soon as he turned onto US-1, Moby observed a police cruiser sidle up and turn on its flashers. Officer Ahab had Moby get out of his jalopy and perform some roadside tests. The officer then asked Moby to perform a breath test on his hand held device, revealing a .04% result. “So, I can go on my way, right?” “What’s that in your pocket?” the officer replied, gesturing at a lump in the pocket of Moby’s leather pants. Moby revealed a pill bottle, “painkillers . . . they just reworked my mangled teeth yesterday, check out these beauties.” Moby opened his mouth wide, displaying new and glorious chompers. After more questioning, Officer Ahab learned that Moby had taken painkillers earlier that day. The officer examined the pill bottle, indicating that users should not drive or operate heavy machinery. “You were driving under the influence of drugs and you’re under arrest, buddy.” Ahab had his white whale. Later at jail, Moby was asked to pee in cup and complied. The test revealed the presence of painkillers and he was prosecuted for driving under the influence. Where did the white whale go wrong?

Like Moby, many drivers think that as long as they do not drink too much, they may drive. However, .08% is not a magical number. In Hughes v. State, 943 So. 2d 176 (3dDCA 2006), the Third District Court of Appeal explained that the prosecution must prove two things in a DUI prosecution: 1) defendant drove or was in actual physical control of a vehicle; 2) while driving or in control, driver was under the influence of alcohol or drugs to the extent that their normal faculties were impaired or over the .08% limit. The DUI statute, Fla. Stat. § 316.193, is not just a “drunk driving” law; it’s a “driving while impaired by anything” law.

As the white whale learned the hard way, there is no “legal limit” with drugs. If urine detects just a little marijuana that may have seeped into the system from second hand smoke at a hippy jam band festival, a driving under the influence prosecution may ensue. Whether the urine test detects just a tiny bit of prescription drugs, or a whole lot of cocaine, the results of the test may ordinarily be used as evidence in court that the driver’s normal faculties were impaired.

Because driving is a privilege, not a right, the law assumes that drivers have given “implied consent” to breath and urine tests. While a driver may refuse to comply with a breath or urine test, they must face the consequences. A driver’s first ever refusal results in a year-long suspension of driving privileges and punishments become more severe after each refusal thereafter. Before a breath or urine test is administered, the officer must place the driver under arrest and have “reasonable cause” that the driver was under the influence of alcohol or drugs. Also, the arresting officer must notify the driver that refusal will result in the suspension of driving privileges. Fla. Stat. § 316.1392. Later on at trial, refusal to comply with testing is typically admissible to prove that the driver was indeed under the influence. A juror may think to herself, “if the driver had nothing to hide, why didn’t he just blow in the contraption or pee in the cup?”

Breath tests are intended to detect alcohol, while urine and blood tests can reveal the presence of alcohol or drugs. As Moby Badtooth now knows, “passing” the breath test under .08% does not necessarily let the driver off the hook. After all, “reasonable cause” is a lax standard. For a urine test, the officer must first arrest the driver, who has impliedly consented to the test. And, as already stated, the driver may refuse and face the consequences. On the other hand, blood may only be drawn when the officer has reasonable cause that the driver was under the influence, the driver is being treated at a medical facility and a breath or urine test is “impractical or impossible”—this usually means that the driver is unconscious and at the hospital after a horrendous accident. As opposed to urine and breath tests, the driver need not be under arrest before the blood is drawn.

DUI laws are harsh but there is always a chance that the driver can get the tests suppressed. The testing method and/or manner in which it was administered could be attacked. For example, if a breathalyzer is not properly calibrated, the results may be inadmissible at trial. Also, before the tests, the officer must properly inform the driver of his or her rights. Failure to properly inform—by telling the driver that he will lose his license indefinitely for example—is cause for suppression of evidence and can ruin the prosecution’s case. State v. Slaney, 653 So. 2d 422 (3d DCA 1995). Also, the driver must be under arrest before the breath or urine test. This means that officers like Ahab may not go on whaling expeditions and coerce drivers into breath and urine tests willy nilly without reasonable suspicion. For example, if Officer Ahab did not notice the pill bottle in Moby’s pocket and there was nothing more to arouse suspicion after he blew a .04%, the officer should have let him drive home and brush his shiny new teeth before bed.

While the smart and safe thing to do is never, ever drive under the influence of alcohol or drugs, all drivers should know their rights. Good people do make mistakes by forgetting that they had taken prescription medication. In every case, anyone arrested for DUI should promptly contact an experienced defense lawyer who can explain rights and options.