Marijuana is about to become a much bigger part of everyday life in Florida. One strain of cannabis will soon be cultivated here legally. A number of Florida municipalities are decriminalizing the possession of small amounts of marijuana. And another proposed constitutional amendment to legalize marijuana for medicinal use in Florida, the Right to Medical Marijuana Initiative, is proposed for the Florida ballot in November. Any way you measure it, pot consumption is probably about to skyrocket in Florida, and in the words of Tampa Bay Times columnist John Romano, “Florida ain’t ready for it,” at least when it comes to determining whether or not someone is driving under the influence of marijuana. If you’re charged with DUI– whether it’s related to pot, alcohol, or some other intoxicant – speak at once with a good DUI attorney, and in central Florida with an experienced Daytona Beach DUI lawyer.

If you use any intoxicating drug or substance, whether or not that drug or substance is legal, and you get in a motorized vehicle and drive it, you can be arrested in Florida and prosecuted for driving under the influence (DUI). Drug-related DUI charges are more difficult legally than alcohol-related charges because most states set no “legal limit” for intoxication levels except for alcohol. In all fifty states, it’s against the law to drive with a blood alcohol content (BAC) level at or above 0.08 percent, for example, but there’s no specified level or limit for cannabis intoxication in many states such as Florida. Twelve states declare a driver legally impaired if any trace of tetrahydrocannabinol (or THC, the active ingredient in marijuana) is found in a driver’s bloodstream. Two states set the impairment level at five nanograms of THC, two states set it at two nanograms, and in one state the legal impairment level is one nanogram of THC.

Although a couple of states tried decriminalizing marijuana back in the 1970s, nationwide efforts to reform marijuana laws only became serious and successful in the 21st century. As more and more states legalize or decriminalize pot for recreational and/or medical purposes, more drivers are being charged in every state with marijuana-DUI, and it’s becoming a genuine national safety concern. Three out of ten drivers in fatal California traffic crashes now test positive for an intoxicant other than alcohol, according to the San Diego Union-Tribune.

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HOW HIGH IS TOO HIGH?

How can we know when someone is too high to drive after smoking marijuana? There are no easy answers. At this time, there’s no relatively convenient way for a police officer to make a precise determination. There’s not even any consistent agreement about what “level” of marijuana intoxication would constitute “impairment” for the purpose of driving. Blood tests can tell us the amount of THC in the bloodstream, but the problem with marijuana is that THC residue remains in the bloodstream for days and sometimes weeks after the pot was smoked and the intoxication has long since faded. A person may test positive for THC while driving completely sober, days after smoking. Frequent users – including patients using pot for medicinal reasons – will almost certainly measure at least some trace amount of THC in their blood, whether or not they’re high at a given moment. Thus, using a THC level alone as a legal determinant of intoxication is comparable to charging someone with DUI because he or she drank a beer or two a week ago.

As medical and recreational marijuana use becomes legal in a growing number of states, police officers, prosecutors, and judges say they need tools that can measure the intoxication levels of marijuana-impaired drivers with reasonable accuracy. Thus, the race is on to develop an effective equivalent to the handheld breathalyzer devices used by police officers to determine a driver’s blood alcohol content (BAC) level. “To the best of my knowledge, nobody has undertaken the experiments necessary to correlate blood or breath concentration levels with impairment,” Dr. Rick Yost, a University of Florida researcher who is working to develop a marijuana breathalyzer device, told the Tampa Bay Times.

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IS A POT BREATHALYZER POSSIBLE?

Dr. Yost isn’t the only researcher working on the problem. What the criminal justice system really wants is a hand-held marijuana breathalyzer unit that police officers can use to learn if a driver is not only high but “how high.” In the end, such a device may not even be possible. Nevertheless, a number of research teams and technology companies are trying to develop a reliable pot breathalyzer. At Washington State University, researchers are engineering a device that uses “ion mobility spectrometry.” In Colorado, Lifeloc Technologies manufactures breathalyzers, and the company has obtained a $250,000 grant from the state of Colorado to design a hand-held pot breathalyzer for police officers on patrol. University researchers sometimes face legal obstacles because marijuana is still classified by the federal government as a Schedule One drug – the “most dangerous” classification. “We’ve certainly never conducted tests at this university because it’s been illegal,” UF’s Dr. Yost told the Times.

Here in Florida, State Representative Dave Kerner of Lake Worth has handled DUI cases from several perspectives. He’s a former police officer as well as a former prosecutor. When a 16-year-old Palm Beach County girl died last year in a traffic collision involving a driver with THC in his bloodstream, Kerner proposed to the legislature a marijuana impairment standard to be used only in traffic fatality cases. Based on current laws in other states, Kerner suggested five nanograms of THC. “I’m open to changing it,” Kerner tells the Times. “More than anything, I want us to have a conversation and a dialogue legislatively so we can arrive at the right answer. I’m supportive of relaxing our marijuana laws, but the reality is if we do that, we have to have a system in place for accountability. And right now, it doesn’t exist.”

Also right now, however, “The science does not yet exist to determine impairment levels,” according to Jodi James, executive director of the Florida Cannabis Network. She opposes the five-nanogram proposal, telling the Tampa Bay Times that “we can’t just use some arbitrary scale that could potentially ruin someone’s life.” UCLA public policy professor Mark Kleiman agrees. He is one of many observers who believe that lawmakers and the courts should abandon the measurement of intoxication levels and that the law should instead focus on actual, impaired driving behavior. And that’s actually what the law in Florida does right now.

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WHAT ARE THE PENALTIES FOR A DUI CONVICTION?

You can be arrested and charged with DUI in Florida if a police officer reasonably believes that you are too intoxicated to drive. Under that circumstance, no “measurement” of your impairment level is required. In fact, you can be convicted of DUI in Florida without any kind of sobriety test if there’s other persuasive evidence that you were driving while intoxicated. That evidence could include video of you driving, an officer’s testimony that you were intoxicated, the discovery of marijuana on your person or in your vehicle, and/or a blood test confirming THC in your bloodstream. If you are convicted of a “simple” DUI charge in Florida – in other words, you injured no one, damaged no property, and no other crime was linked to the DUI – the penalties are:

  • For a first offense: up to nine months in jail, a one-year driver’s license suspension, and a fine of up to $2,000
  • For a second offense: up to a year in jail, a five-year driver’s license suspension, and a fine of up to $4,000
  • For a third offense: up to a year in jail, a ten-year driver’s license suspension, and a fine of up to $5,000

Since 2002, the installation of an ignition interlock device in personal vehicles is required of all Florida DUI offenders when the driver’s license suspension is lifted. While the legal penalties for a Florida DUI conviction can be extensive, DUI offenders also face considerable extra-legal penalties. A DUI conviction is certain to increase your auto insurance rates, and those rates will very like never come back down. If you drive for a living or if driving is a big part of your work, you’ll have employment trouble. And if you hold a professional license or a security clearance, that license or clearance will almost certainly be challenged and possibly revoked.

In November of this year, every voter in Florida will once again be asked if marijuana should be legalized in this state for medical use. A similar initiative on the November 2014 ballot was defeated even though 57 percent voted to legalize medical marijuana. Florida’s constitution requires a 60 percent majority to pass such initiatives, but supporters believe they can make up a three percent difference this year. Ben Pollara, the director of United For Care, says the 2016 initiative contains explicit language clarifying areas that opponents were concerned about in 2014, such as forbidding minors from obtaining medical marijuana without parental consent.

The criminal justice system in every state is cracking down on marijuana-related DUI, so if you face the charge, do not assume that you’ll “walk” or “skate” because it’s only a misdemeanor or a first offense. If you are charged with DUI related to marijuana, alcohol, or any other intoxicant, get the legal help you need and contact a good DUI attorney at once, and in central Florida, contact an experienced Daytona Beach DUI lawyer as quickly as possible.