In Florida there is no numeric cutoff for what is an impairing level of any drug other than alcohol. For a drug DUI, if the police have reasonable suspicion that someone is impaired by something other than alcohol, they can investigate further. If they find that there is probable cause that someone is impaired by something other than alcohol, they can charge the person with a DUI drugs. The standard for proving DUI drugs is being under the influence of a drug to the extent that your normal faculties are impaired. The particular substance impairing the driver has to be from an enumerated list of what they call chemical substances or controlled substances. Those lists are contained in the Florida statutes and they don't completely correspond to what the federal government calls a controlled substance under the schedules of controlled substances published by the DEA.
There are some medications that are impairing but which are not listed and cannot be the subject of a DUI in Florida. For example, Ambien, which is also goes by the generic name Zolpidem, is very impairing. People who have taken it can be driving all over the road. However, in the state of Florida, unless and until they change the law, driving under the influence of Ambien is not a crime. There are a lot of lawyers who are not aware of which medications are on the list and which aren't. We have had many Ambien cases reduced or dismissed over the years because of this loophole in Florida law.
What Happens When Someone Is Pulled Over On Suspicion Of Being DUI In Florida?
The police have a three step process when they pull someone over. The first thing they do is observe how someone is driving. Not everyone who is driving with a broken tail light or runs a stop sign is impaired. The police will watch for any evidence of impairment, whether it is driving on the wrong side of the road or straddling a lane line. Once police make a decision to stop a particular car for these reasons, they must have reasonable suspicion that the person is impaired. Police can then pull the driver over and have a face to face encounter with him or her. During this encounter, police gather more information and make a decision whether or not they believe this person is impaired. They listen to how the driver speaks and note whether there is alcohol on the driver's breath.
If the police become convinced that there is reasonable suspicion for a DUI investigation, they can ask the person to step out of the car and ask them to perform field sobriety tests. The standardized field sobriety tests, which are nationally uniform, include the Horizontal Gaze Nystagmus test, where the police move a pen back and forth in front of someone's eyes to see whether the eyes can smoothly track a moving object. The other standardized tests are the walk and turn test, where the driver walks a line, turns around, and walks a line back, and the one leg stand test, where the driver stands on one leg for 30 seconds to see whether they can accomplish that without hopping, swaying, using their arms for balance, or putting their foot down. Once an officer has gone through all that, he has to decide whether he has probable cause to place the individual under arrest. The police have a lot of faith in field sobriety tests, even though the success of those tests under controlled conditions is highly suspect.
Is A Driver Required To Perform The Roadside Breath Tests Or Field Sobriety Tests In Florida?
You are not required to perform the field sobriety tests, although many police officers tell people that they are required to do them. There is a legend on the driver's license in Florida that says that possession of a Florida driver's license constitutes consent to any sobriety test required by law. However, the field sobriety tests are not required by law. The police sometimes point to that legend and try to coerce people into doing the field sobriety tests. The truth is, no one should do the field sobriety tests because they are extremely poor predictors of who is over or under 0.08. If you've gotten to the point where the police are asking you to step out of the car to do field sobriety tests, as a practical matter, they have already determined that they are going to arrest you. There is no sense in giving them additional evidence, especially when it's evidence that is unreliable.
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