DUI Urine Test
Although the State of Florida’s “Implied Consent Law” requires any person who drives a vehicle within the state and who is suspected of DUI to submit to a chemical test of their urine or breath, requiring that the driver submits to a urine test now requires a warrant.
Because warrants are rarely obtained in Florida for a urine test, criminal defense attorneys are filing motions to suppress urine test results so that the urine test results cannot be used at trial.
In other words, the officer can no longer rely on the state’s implied consent statutes when no warrant exists.
Attorney for the DUI Urine Test in Tampa, FL
If the officer asks you to agree to submit to a urine test before the arrest, then that request and any alleged refusal would be inadmissible at trial if your attorney files and litigates a motion to suppress that evidence.
If you have been arrested for DUI and submitted to a urine test in Tampa or Plant City in Hillsborough County, or the surrounding areas, then contact an attorney at the Sammis Law Firm to discuss your case today.
Click here to read more about our Recent Case Results in DUI Breath and Urine Test Cases.
Does the Officer Need a Warrant for the Urine Test?
After several recent U.S. Supreme Court decisions, it appears that officers in Florida now need a warrant or voluntary consent to take a urine sample after a DUI arrest. In State v. Riddle, 26 Fla. L. Weekly Supp. 148a (2018), in a decision out of the 12th Judicial Circuit in Sarasota County, the court granted the Defendant’s Motion to Suppress the Urinalysis Results because the urine sample was taken without a warrant.
In that case, the warrantless search of the “urine draw and subsequent urinalysis” was the sole issue for the court to decide. The court considered whether the taking of a warrantless urine sample acquired after reading Florida’s Implied Consent warning was obtained with the voluntary consent of the Defendant.
In that case, the court found that the warrantless urine sample collected in the case was the result of an unreasonable search and seizure, without the voluntary consent of the Defendant.
The court relied on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) [26 Fla. L. Weekly Fed. S300a] and a decision from the Minnesota Supreme Court that applied the Birchfield framework to urine testing.
In State v. Thompson, 886 N.W.2d 224, 230-33 (Minn. 2016), cert. denied, __ U.S. __, 137 S.Ct. 1338, 197 L.Ed.2d 520 (2017), the Minnesota Supreme Court held that warrantless urine tests are not permissible as a search incident to a valid arrest of a suspected drunk driver.
The Minnesota Supreme Court concluded the physical intrusion of a urine test on an arrestee’s bodily integrity was similar to the intrusion of a breath test. Id. at 230.
The court said, however, a urine test raised the same privacy concerns as a blood test regarding the amount of information obtained by law enforcement and the potential for abuse involved with the retention of a urine sample. Id. at 230-31. The court also said urine tests implicate significant privacy interests and cause considerably more embarrassment to an arrestee than breath tests.
The court thus concluded the intrusion on an arrestee’s privacy for a urine test was like the blood test in Birchfield:
In sum, in terms of the impact on an individual’s privacy, a urine test is more like a blood test than a breath test. Specifically, although a urine test does not require a physical intrusion into the body in the same way as a blood test, urine tests have the potential to provide the government with more private information than a breath test, and there can be no question that submitting to a urine test under the watchful eye of the government is more embarrassing than blowing into a tube.
Thompson, at 232.
Requirements for a Lawfully Requested Urine Sample
In State v. Linaje, 15 Fla.Supp. 373 (Fla. Miami-Dade Cty. Ct. 2007), the court sets out a two-prong test for an officer to be able to lawfully request a urine sample:
- arrested for an offense committed while under the influence of a controlled substance to extent that normal faculties impaired; and
- had reasonable suspicion, based on specific articulable facts, to believe defendant was under influence of controlled substance to the extent that the driver’s normal faculties were impaired.
Unless an officer has “reasonable cause” to believe a person is under the influence of a chemical substance or controlled substance, a request for that person to submit to a urine test is unlawful. See State v. Hills, 16 Fla. Supp. 175 (Fla. 1st Cir. Ct. 2008).
“[T]he goals of the breath and blood tests are different from the goals of urine testing. Breath and blood tests detect alcohol content, whereas urine tests detect controlled substances.” State v. Bodden, 877 So. 2d 680, 689 (Fla. 2004).
Urine tests are only for DUI cases when the police officer has a reason to think the person was under the influence of chemical or controlled substances. See § 316.1932(1)(a)1.b., Florida Statutes (2011). If the officer has an insufficient cause, then the urine test result should be suppressed.
Motion to Suppress the Urine Test in a DUI Case in Florida
In State v. Byers, 13 Fla. Supp. 635 (Fla. Broward Cty. Ct. 2006), the defendant filed a motion to suppress evidence of a urine test, and the county court granted the motion.
At the motion hearing, a civilian witness testified that he observed the vehicle driving in an unsafe manner. The officers dispatched to the scene testified that they smelled an odor of alcohol on the defendant’s breath.
The officer also saw a six-pack of Bacardi Silver, an empty pint of vodka, and three airline-sized vodka bottles. The officers believed the defendant was under the influence of alcohol. The defendant provided a breath sample, and the result was .000.
Only then was a urine test requested. The court concluded that there was insufficient evidence to establish that the officers had reasonable cause to believe that the defendant was under the influence of a controlled substance.
The Byers case demonstrates that unless the officer has reasonable cause to believe that the defendant was under the influence of a chemical or controlled substance, then the urine results must be suppressed as they were taken in violation of section 316.1932(1)(a)1.b., Fla. Stat. (2013).
Why Do Officers Request a Urine Test Instead of a Blood Test?
The urine tests are convenient for law enforcement because the tests are relatively inexpensive and easy to administer by non-technical employees. The urine test is designed to detect trace amounts of inactive components left behind in the body after the use of an illegal drug including:
- Street drugs such as marijuana, cocaine or heroin;
- Prescription drugs such as valium, hydrocodone, and oxycontin; or
- Even over-the-counter medications such as cough medicine or sleeping aids.
The urine tests used in Florida are inaccurate at pinpointing the time period during which the drugs or alcohol were consumed or ingested.
At the Sammis Law Firm, our lawyers are experienced in fighting the DUI urine test in Tampa, Hillsborough County, FL. We take a scholarly approach to fighting the DUI urine test case. Many of these cases can be effectively challenged by filing motions to exclude any mention of the urine test at trial.
Your Tampa DUI Attorney can also retain the most highly qualified toxicologist or pharmacologist to argue for the exclusion of the test results at pre-trial hearings or to explain the problems with test results at trial.
Urine Tests in Florida DUI Cases – Important Factors
- The Least Reliable Type of Test
- Problems Measuring Blood Alcohol Content (BAC)
- Problems Showing Impairment
- DUI of Marijuana
- False Positive Results
- The Confrontation Clause
The urine sample is subject to a wide variety of challenges in an impaired driving case in Tampa, FL. The urine test is universally viewed as the least reliable testing method for the estimation of blood alcohol content (BAC). The crime laboratories in Florida typically test urine samples by using Gas Chromatography-Mass Spectrometry.
For the urine test to be admissible under Florida law, several requirements must be met. First, the person under arrest for DUI must be given the opportunity to submit to the urine test in a secure setting where their right to privacy is respected.
Second, for the most accurate testing, the person arrested for DUI should be given the opportunity to empty their bladder and then wait at least another 20 minutes before submitting the urine sample that will be used for the chemical testing.
The urine tests are often invalidated in courtrooms in Tampa because of human error than can occur when the test is administered, during the storage or transportation of the sample, or at the laboratory during the testing of the sample. If any of the strict procedures are not followed properly then the urine test may not be admissible at trial.
The prosecutor for the State Attorney’s Office in Hillsborough County, through expert testimony, will attempt to show the urine test indicates that the defendant was impaired while driving.
The assumptions necessary to make that showing, however, are affected by factors such as the individual’s age, urine volume due to diet, exercise, the accumulation of metabolite because of chronic use, and the metabolism of the individual. The DUI defense attorney in Tampa will argue that the urine test should be excluded because it only proves, at best, prior drug use.
Of course, the admission of the urine test is particularly prejudicial to the defense because the jury will know that the defendant used drugs in the past.
The fear is that the jury will misuse that information to improperly conclude that because the defendant is a “bad man,” he should be convicted of DUI even though they have some reasonable doubt about whether the test proves impairment at the time the defendant was driving.
The urine test measures trace amounts of alcohol or drugs in the system. It is often an inaccurate way of estimating the blood alcohol content. After all, the Florida Statute dealing with the “per se” method of proving DUI deals with blood alcohol content, not urine alcohol content.
An expert called by the prosecutor at trial may try and argue that scientific evidence suggests that the concentration of alcohol in the urine correlates to the concentration of blood alcohol content.
Various studies show that the correlation of alcohol in the urine is approximately 1.33 times the concentration of blood alcohol content. These assumptions, however, are an indirect way of estimating blood alcohol content (BAC) that can often be effectively contested by an experienced Florida DUI defense attorney.
The biggest problem faced by the Hillsborough County State Attorney’s office in a urine test case is pinpointing the time period during which the alcoholic beverage was consumed. Scientific studies show that a subject who drinks an alcoholic beverage will not have any detectable level of alcohol in his urine for up to two hours after the consumption.
Once the alcohol shows up in the urine, it takes a much longer period to dissipate in the urine than it does in the blood. Thus, if a urine sample and blood sample are taken of a suspect at the same time, the urine sample may show the presence of alcohol while the blood sample does not.
The prosecutor’s best argument for using the urine test to establish blood alcohol content is when Ethyl Glucuronide (EtG) is present. EtG is a direct metabolite of alcohol that is present in the urine sample immediately after the subject drinks an alcoholic beverage. Thus, the fact that EtG is present in the urine sample can be used to demonstrate that the driver recently drank alcohol (even if no significant amount of alcohol is present in the system at the time of testing).
When the urine test is used to measure the quantity of drugs in the driver’s system that may have contributed to impairment, equally problematic assumptions are made. At best, the urine tests can determine whether certain inactive metabolites are present in the urine.
The presence of the inactive metabolite indicates that a certain parent drug was ingested at some time in the past, although it offers marginal circumstantial evidence of when the suspected drug was actually ingested.
For instance, certain metabolites may show up in a urine sample even when the drug was ingested days before the sample was given when there is no chance that the ingested drugs could have contributed to impairment at the time the subject was driving the vehicle in Florida.
In other words, the driver may have used a certain drug such as heroin, cocaine or marijuana prior to driving, but long after any impairment (or mood-altering effect) from the drug has passed. At best, the urine test can be used to establish that a certain drug was ingested, but it can not always accurately predict when the drug might have been ingested.
It should be no surprise that the most commonly detected illegal substance in the urine is marijuana (sometimes in combination with other drugs or alcohol), since marijuana is the most widely used illegal drug in the State of Florida. The urine tests can detect cannabinoids which are THC and the metabolites of TCH.
The urine test can detect cannabinoids for more than two (2) weeks after consumption for the casual user of marijuana or for up to one month with the chronic user of marijuana. Different urine tests detect different types of metabolites of cannabis.
The main active component of cannabis is a metabolite of delta-9-THC called 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acide (9-carboxy-THC). Scientific studies show that more than 80 percent the metabolite delta-9-THC is eliminated from the body within 5 days after marijuana is ingested.
In many of these DUI of marijuana cases, a “Motion to Dismiss” the entire case can be filed when the only drug suspected is marijuana. Additionally, a “Motion in Limine” can be filed to exclude any mention of the THC finding to the jury because in many of these cases no connection can be made to show the driver was under the effects of marijuana at the time he was driving and stopped for DUI in Tampa, Florida.
In other words, if you smoked marijuana on Thursday, and drove a vehicle on Saturday, the carboxy THC may be present in the urine after the stop, but it does nothing to prove that the driver was under the influence of marijuana at the time he was stopped for DUI.
Additionally, many legal substances can cause a false positive in a urine test including pain medications such as Excedrin IB, Motrin or Advil or Aleve, over-the-counter supplements such as B2, hempseed oil and riboflavin, and prescription medications such as Marinol or Dronabinol. Even certain medical conditions such as liver disease, diabetes, or a kidney infection can lead to a false positive.
Problems with the accuracy of urine tests used in DUI cases in Florida are well documented. For example, an often cited study by the Nation Institute of Drug Abuse showed that more than 20% of laboratories in the study incorrectly reported the presence of illegal drugs in a urine test that was known pre-determined to be completely drug-free.
Even more problematic, a study by the Los Angeles Times New Service shows that for the most commonly used urine screens of the 161 over-the-counter and prescription medications tested, 65 of those substances caused as false positive reading.
Additional problems with the urine tests result from the laboratories mistakes in misinterpreting common chemical compounds. The study showed that even non-narcotic cold and flu over-the-counter medication caused a false positive for heroin.
The studies have also documented false-positive results for THC (indicating the ingestion of marijuana) for individuals who have taken Advil. Other studies have documented a false positive for amphetamines for an individual who has used an over the counter medication such as Nyquil.
In urine test cases the laboratory reports make up the most important piece of evidence for proving the defendant was impaired by drugs while driving (DUI).
The prosecutor’s ability to admit the results of the urine test at trial often requires the forensic experts who were involved in the testing to show up to court, take the stand, give live testimony, and be subjected to cross-examination by the criminal defense attorney.
The Confrontation Clause of the Sixth Amendment to the United States Constitution requires that certain witnesses must appear at trial and be subjected to cross-examination before their hearsay statements contained in the laboratory report will be admissible or before certain certificates related to the calibration and accuracy of the machine will be allowed.
In these types of cases, the prosecutor may be required to call several expert witnesses including the analysts, chemists, laboratory technicians that played a part in run the test or preparing the lab report.
The Supreme Court of the United States has recently applied the confrontation clause to certificates by laboratory technicians which are often required to prove foundational issues prior to the admission of chemical test results.
Under the Confrontation Clause, these witnesses may be required to actually show up in court and offer testimony on the stand before the results of any urine test will be admissible during a DUI trial so that the criminal defense attorney will have the opportunity to contest the testing methods and results. See generally Melendez-Diaz v. Massachusetts, 557 U.S. ___ (June 25, 2009).
Finding an Attorney for a DUI Urine Test Case in Florida
If you have been arrested for DUI and submitted to a urine test, contact an experienced DUI Defense Attorney in Tampa, FL, to discuss ways to fight the Driving Under the Influence or drug-impaired DUI case. Call 813-250-0500 today for a free consultation in the office or over the phone.
At the Sammis Law Firm, we focus on DUI cases in Hillsborough County, including Tampa and Plant City, Florida. Let us put our experience to work for you.
This article was last updated on Thursday, November 7, 2019.