It’s back. A version of the 2012 bill introduced in the Florida House and Senate to change DUI in Florida to DWI was introduced again this year. This year it is called Florida House Bill 299 and Senate Bill 1118. Under the proposed legislation, instead of requiring the prosecutor to prove that a person was driving under the influence of alcohol or drug to the extent “normal faculties were impaired,” the new standard would require only a “weakening or diminishing” or a person’s physical or mental abilities.

Throughout the statutory scheme the term “under the influence of” is replaced with “impaired by.” Also the phrase “to the extend his or her normal faculties are impaired” has been eliminated entirely.

What about DWI with a Prescription Drug?

The bigger problem with the proposed legislation is that it introduces a new per se “no tolerance” drug version of DWI. Under this standard, the jury is told that it should find the person guilty of DWI if the person has in his or her blood or urine a substance identified as a controlled substance in Schedule I, II, III or IV of chapter 893, regardless of any showing that the person was actually impaired.

For prescription drugs, it is an affirmative defense to the “per se” version of DWI if:

“a person who is charged with violating this paragraph introduced into his or her body a controlled substance prescribed by a licensed health professional authorized to prescribe the controlled substance, consumed the controlled substance in accordance with the health professional’s directions, and submitted to testing of his or her blood or urine as described in s. 316.1932 or s. 316.1933, the person is entitled to an affirmative defense against any allegations that the person violated this paragraph.”

What about DWI with Marijuana?

Assuming Florida constitutional amendment to legalize medical marijuana passes in November of 2014, the affirmative defense would not apply for medical marijuana users.

This is because a doctor can “recommend” marijuana he or she is not allowed to “prescribe” it. The statute even says, “The introduction of a nonprescribed substance… does not constitute an affirmative defense.” Also, the fact that the person was “legally entitled” to use the substance is not an affirmative defense. Other than medical marijuana, can you think of another controlled substance that one can be “legally entitled” to consume even though it is not prescribed?

The proposed statute from a similar version of the bill introduced two years ago, 2012 SB 1810, applied to any Schedule I of chapter 893 “or one of its metabolites or analogs.” So the issue is whether the prosecutor can prove the “per se” drug version of DWI when an inert marijuana metabolite is present in the blood or urine.

New Crime for Driving Whilst A Regular User of Cannabis

“This approach has been criticized as tantamount to prohibition of ‘driving whilst being a regular user of cannabis’ regardless of the presence or absence of any actual impairment that might impact on driving performance.” See 11-nor-9-Carboxy-THC. So it remains to be seen how a prosecutor could use this zero tolerance per se statute with the presence of THC in a person’s blood or a metabolite in a person’s urine.

UPDATE 3/25/14:

I asked Paul Armentano, the Deputy Director of NORML what he thought of the proposed legislation, the 2014 Florida House Bill 299 and Senate Bill 1118. He called it a “zero tolerance per se” proposal meaning that operating a motor vehicle with any detectable amount of THC in one’s blood is a per se traffic safety offense, regardless of evidence of recent drug use or behavioral impairment. He said that such laws for cannabis are uncommon but not totally unusual. In fact, 13 states have some version of the “zero tolerance per se” language.

These proposals are anything but science-based because “traffic safety agencies such as NHTSA and the DOT acknowledge that inferring behavioral impairment from the presence of THC in blood, regardless of level, is inadvisable.” He recently wrote an article on the topic concluding:

“Proposed ‘per se’ measures for the presence of cannabis’ constituents in blood or urine are an unscientific and disproportionate response to behavior that is already sufficiently addressed by present traffic safety laws which already criminally prohibit driving while impaired by drugs. The imposition and enforcement of such ‘per se’ measures risks inappropriately convicting unimpaired subjects of traffic safety violations, including potentially those persons who have previously consumed in the privacy of their own home some days earlier.”

The article also explains that according to a 2013 meta-analysis of 66 studies published in the journal Accident Analysis and Prevention, drug positive drivers for amphetamines (OR=6.19), opiates (OR=1.91) and benzodiazepenes (OR=1.17) possess the highest adjusted odds ratios of traffic accident injury, while drug positive drivers for penicillin (OR=1.12), antihistamines (OR= 1.12), cannabis (OR=1.10), and analgesics (OR=1.02) possess the lowest odds ratios.

UPDATE 3/26/14

Florida: Oppose Unscientific Zero Tolerance DUID Legislation – Use this quick, easy pre-written letter to urge your members of the House and state Senate to vote ‘no’ on HB 299 and SB 1118. The letter reads –

Oppose House Bill 299 and Senate Bill 1118

I’m writing you to express concern over House Bill 299 and Senate Bill 1118.

These measures set zero tolerant per se criminal thresholds for the presence of any compound indicative of past marijuana use, as well as for the presence of many prescription substances.

THC and its metabolites may be present for periods of time extending beyond any reasonable period of impairment. In one recent study, several experienced cannabis users still had detectable levels of THC present in their blood after seven days of monitored abstinence. As a result, the US National Highway Traffic Safety Administration affirms, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”

The United States Department of Transportation Drug Expert Recognition Training materials similarly acknowledge: “Toxicology has some important limitations. One limitation is that, with the exception of alcohol, toxicology cannot produce ‘per se’ proof of drug impairment. That is, the chemist can’t analyze the blood or urine and come up with a number that “proves” the person was or wasn’t impaired.”

This proposed zero tolerant ‘per se’ measure is an unscientific and disproportionate response to behavior that is already sufficiently addressed by present traffic safety laws. The sole presence of THC or its metabolites in blood, particularly at low levels, is an inconsistent and largely inappropriate indicator of psychomotor impairment in cannabis consuming subjects. The imposition and enforcement of these strict liability standards risks inappropriately convicting unimpaired subjects of traffic safety violations. For these reasons, previous versions of this legislation have been soundly defeated by state lawmakers. This bill should also be rejected.

I urge you to vote ‘no’ on HB 299 and SB 1118.

2014 Florida House Bill No. 299 does not not mention the word “metabolite” anywhere. Instead, House Bill No. 299 reads, in part:

See 2014 Florida House Bill No. 299, Florida One Hundred Sixteenth Regular Session, 2014 Florida House Bill No. 299, Florida One Hundred Sixteenth Regular Session.