The drugged driver and the need for a "per se" law.

• Author: Lewis, Mark F.
• Position: Florida

Most people are familiar with the problems caused 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. [sections] 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. [sections] 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 This latter section, originally enacted in 1974 as a separate offense, was consolidated with the impairment statute in 1982 and has become an alternate means by which the state can obtain a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. [sections] 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. [sections] 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. [sections] 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/I 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...