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  • Writer's pictureAttorney Joseph Soler

Breath tests for marijuana and opiates may be a reality in the State of Florida soon

According to an article published by Newsweek entitled, “Marijuana Breath Tests Could Be Available by 2020,” roadside breath tests that can determine if one has recently smoked marijuana may be available to law enforcement soon. The article mentions that the marijuana breath test machines will make it easier for the police and state to convict those who have driven under the influence of marijuana. A recent article by Medical News Today, “Breath Test for Opioids Shows Promise in Pilot Study,” indicates that scientists have also developed a breath test for opioid drugs.

Florida law and driving under the influence of drugs

Florida law says that a person is guilty of the offense of driving under the influence if the person is driving or in actual physical control of a vehicle and is under the influence of alcoholic beverages, a harmful chemical substance set forth by Florida law, or any controlled substance, when affected to the extent that the person’s normal faculties are impaired.

Thus, in Florida, one can be convicted of DUI if the prosecutor can successfully convince a jury that one is driving to the extent that their normal faculties are impaired by drugs, alcohol, or a combination of both. It should be noted that the prosecutor can argue that one is under the influence of, not only illegal drugs like meth or cocaine, but also a controlled substance like an opiate or marijuana, that the defendant has a prescription for and a legal right to use.

Breath test companies have refused to turn over data in the past

Regarding breath alcohol testing machines, the company that manufactures the machines used by law enforcement to prosecute driving under the influence cases in Florida has been reluctant to provide the computer source code of their Intoxilyzer machines in the past. They have argued that their machine's source code is a valuable, proprietary trade secret. This has prevented criminal defense attorneys from adequately studying how the machines operate to reach their conclusions.

Florida courts allow evidence of any amount of drugs in a persons system to be used in trial

Florida courts have allowed the state to use evidence of the presence of substances including marijuana components, cocaine, and methamphetamine in a defendant's blood as evidence in trial. The state will often call expert witnesses to testify that the level of drugs found in one's system is evidence of impairment.

This is the case even though there is not necessarily an agreed upon level of controlled substance in one's blood (as there is with the .08 limit with alcohol) that would constitute a presumption that one is impaired. For instance, prosecutors may argue that any level of marijuana, methamphetamine, or cocaine in one's system is evidence of impairment.

The combination of drugs and alcohol

If the defendant has both alcohol and drugs in their system, the state will usually argue that the combined use of alcohol, marijuana, or a controlled substance resulted in significant impairment. Thus, in Florida, one can be convicted of DUI even if the person blows under .08 on the intoxilizer machine if there are traces of a controlled substance in their system. This can be a problem for marijuana users because there is evidence that chronic users of marijuana often have a baseline level of THC in their blood at all times.

Expect there to be litigation regarding the accuracy of the machines

If the past is any indicator, expect there to be tremendous litigation and challenges by Florida criminal defense attorneys of the drug breath test machines and the source codes they use to reach their conclusions.

For more information about DUI law in Florida, please visit the Soler & Simon DUI page.

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