Urine tests cannot be automatic when there is low BAC

Under Florida’s implied consent statute, you have given consent to submit to a breath, urine, or blood test in the state of Florida when you get your driver’s license. The police can only ask for one of these tests incident to a lawful arrest. The most common test administered is the breath test. However, when someone gives a sample under the legal limit, the police typically will ask for a urine sample.

 A request for a Urine Sample may not be legal

Under Florida statute316.1392(1)(b) a urine test must be incidental to a lawful arrest and who was in actual physical control of the motor vehicle while under the influence of chemical or controlled substances. In order for law enforcement to ask for a urine sample, there must be some indication a person is under the influence of a chemical or controlled substance. Simply blowing under the legal limit does not indicate that someone is under the influence of the chemical or controlled substance.

 There must be evidence of chemical or controlled substance use

Local courts have held merely blowing under the influence is not enough. In one particular case here in Palm Beach County, a person was arrested for DUI when the officer pulled the defendant over after driving at a high rate of speed. The officer noticed a slight odor of alcohol on the defendant and smelled a stale odor of burnt marijuana. The officer’s report only mention alcohol as a cause of impairment and did not include use of marijuana as an indicator of impairment. However, after the person blew under the legal limit urine test was requested. This defendants attorney successfully argued since there was no suspicion that the impairment was due to a chemical or controlled substance there was no reason to request the urine sample. As such, the sample was suppressed.

 What this means

What this means for you is that even though you may feel there is no defense for a breath or urine sample that put you over the legal limit, there actually may be one.

Where to do Community Service Hours?

This is a commonly asked question by my clients. When a Defendant has to do Community Service Hours for Probation, for Pre-trial Intervention Program, or for a Deferred Prosecution Agreement they have to do them where the Court will accept them.
Its not enough that a company that offer hours helps the community, it has to be with a designate non-profit organization.  The problem lies when someone thinks they have done community service hours for a non-profit organization, and it is not.
Take a look at these approved non-profit organizations to do your community services hours.

Where to Do Community Service Hours

License Plate Cameras are Coming

The City of Wellington are looking to get 30+ license plate cameras to be set up throughout the town.  Recently the town counsel voted in favor of the cameras.

What are License Plate Cameras?

License plate cameras are stationary cameras positioned throughout the city that constantly read license plates.  They check for bad registrations, possible license issues, and if cars are stolen.   This will then alert PBSO as to the vehicle’s issues.

ALREADY IN USE

Many Law Enforcement agencies already have them installed in their police vehicles.   Having them mounted stationary in a town will put eyes on a corner/intersection at all times.

What this means for you?

If you are driving in an area with an License Plate Cameras and you have an expired tag, you could get pulled over much easier than if you were in an area without these cameras.   Also, if you are traveling in a stolen car, you will be caught right away.   According to this article, a pilot program in Lake Worth 2-3 stolen vehicles per day were found.

 

CBD Legal? Illegal? Fact and Fiction

A question that has come up to me recently is whether or not CBD oil is legal in the State of Florida.   This is a tough question to answer because state law and federal law seem to be at odds with each other throughout the country. Some can argue that state law does not endorse use of CBD oil without a prescription.

What is CBD?

Let’s first talk about what CBD oil is.   CBD is cannabidoiol which is made from cannabis.   CBD does not produce a psychoactive effect when consumed for the most part.   This is different from THC which is the active ingredient in marijuana. (The thing that gets you high.)

Florida’s law

In 2014 Florida, legalized non-euphoric strain’s of marijuana. This in effect was CBD oil known as “Charlotte’s Web.”  In 2016, the legislature broadened the scope to encompass all types of marijuana. While it took legislature some time to get the regulations in place, it is a lot more commonplace to be prescribed now in 2018. The caveat of this law was the marijuana could not be smoked, it had to be taken in a different way.

In May, a judge in Tallahassee ruled that a law banning smokable medical marijuana was unconstitutional. This may give way to ending the statewide ban.

CBD

As discussed above, CBD oil has been legalized in Florida since 2014. However, it needs to be prescribed. Right now, the federal government has CBD oil as a schedule one substance, making it illegal. According to an article in Tech Crunch magazine, the FDA approved a drug to control seizures made from CBD.   The article points out that this may cause the DEA to reschedule CBD not as a scheduled one substance.

Conflict

So the conflict comes into play that state law allows for CBD oil under prescription, but the federal law would ban it. This is much along the lines of the use of recreational marijuana in states like California, Colorado, Washington, and Oregon. The states have all legalize recreational marijuana even though the federal government still classifies it as illegal.

The concern comes to me as people point out they can go to natural medicine shops and purchase CBD oil. One wonders how you can go into a place of business regulated by a local municipality and purchase a substance that is on the DEA schedule one substance list? The answer is, I don’t know. It seems like federal law enforcement really isn’t targeting these operations. And I don’t know what local law enforcement is doing.

The question I give in return, is until there is more clarification to whether or not CBD oil is legal for purchase without a prescription, do you want to make that purchase? As the adage goes you might be the wrap but you can’t beat the ride.

I would venture to say things might change rapidly in the next 6 to 12 months. The more commonplace people are using marijuana and CBD oil for beneficial purposes the more likely we will see some real change.   Check out this article here.

MUGSHOTS.COM owner Arrested

For years, this blog has been commenting on the problems with websites who obtain police booking photos and disseminating them for pecuniary gains. Mugshots.com owner, a Palm Beach County resident, was recently arrested for a violation of the California law prohibiting the tactics Mughots.com were implementing.

If you are new to this, essentially when someone is arrested, a local law enforcement agency will take a booking photo and make it a part of the court record. In Florida, in most instances, this would become a public record that would be normal to be published. Websites like mugshots.com and Bocabusted.com will take the information from the Sheriff’s office page and place it on their own page. Long after their cases over, even if the case is dismissed, or their found not guilty their picture and information remains. The accused then turns to these independent websites and ask them for removal. In many instances removal may not happen unless you pay them a fee.

California case says they made millions

According to this Palm Beach Post article, mugshots.com earned more than 2.4 million in fees between 2014 – 2017.   This is just one company. The sad truth is that there are several companies just like this that use the same tactics. The accused then ends up having to pay several sites to have their name cleared from the Internet.

1st Amendment Right

Many of these companies argue that the First Amendment allows them to publish true information. After all, the booking photo is based on an arrest, not on a conviction. The hardship comes into play, when someone who is innocently arrested, has their case dismissed, even have their case expunged by the court, has a record of an arrest by a private company.

New Florida Law

Starting July 1, 2018 Florida Statute 943.0586, it makes it illegal for these companies to publish or disseminate booking photos (mugshots) and asking for a fee to remove it.   All you will have to do is request in writing that it be removed.   If a record is not removed within 10 days it could subject the company to civil penalties.

Expungement

if your mug shot is online you will want to contact each site that has it displayed. Moreover, you will want to seal or expunged your case.   This process will remove any arrest (if eligible) from public viewing from the clerk’s website and from FDLE.

Drive Baked, Get Busted? Not really….

In this great story, by Wanda More, of WPTV News Channel 5, the reality behind the “Drive Baked, Get Busted” billboard on 95 is exposed.     Ms. Moore did an indepth investigation by interviewing the Martin County Sherrif William Snyder about the myth of DUI on Marijuana.   Additionally she sat with me to discuss legal defenses and what the future might hold.

Marijuana tests are not accurate

One of the key topics in this story is that there are no breathalyzers for Marijuana used/approved in the State of Florida.  The only way to determine if THC (active componant in marijuana) is in somebody’s system is by a blood or urine test.

The problem with these tests is that they can’t accurately tell when the THC is in the system because it is looking for an inactive metablolite.  It more just states it was in your system.

Marijuana Can Stay in your system up to 30 days

Marijuana can stay in your system over 30 days.  As mentioned by Sheriff Snyder, the purpose of the test is to prove you were under the influence while driving, not sometime within 30 days.

Your not out of the woods

By no means am I condoning driving under the influence of marijuana.  You could also be subject to other charges such as possession.   Futhermore, if you cause an accident and someone is injured or dead, you may be subject to a forceable blood draw.

Time will tell

Sheriff Syner is right, we need science on our side.  This means we need to develop an accurate way of determing the active level of marijuana in someone’s system at the time of driving.   More importantly, we need to have that method tested over and over to insure it’s accuracy.  As I stated to Ms. Moore, we should look to other states who have recreationally allowed marijuana to see how they are handling it and find the best ways, and test those methods continually.

Getting caught with your pants down, DUI style!

In another case of weird DUIs, a St. Lucie County Sheriff’s deputy stopped a man for reckless driving, and started a DUI investigation. It turns out the man was wearing only underwear that stated “breathalyzer” on it.   It also said “Blow Here” and you can guess where.

So one would beg the question, was anybody else read implied consent.   Furthermore, did he in fact give a breath sample?   The real question is was there a phrase on the back of his underwear says “Insert Head Here”?

Almost as weird

it’s hard to tell which is weirder, the case above, or the Canadian man who ate his underwear to get out of a DUI.   That’s right a man thought if he ate his underwear, it would soak up the alcohol.   That is not a sound defense, although, he was acquitted. There are many defenses to DUI I do not advise the underwear defense.

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