DUI Urine Tests Backed

Fourth District Court of Appeal - By Sara Olkon

• The Miami Herald
• Mar. 11, 2004

An appeals court rules that police can use urine tests to determine if a driver is under the influence of drugs. But the state Supreme Court will ultimately decide the issue.

Disposing of a batch of challenges, the Fourth District Court of Appeal ruled Wednesday that urine tests are a reliable barometer of whether a driver was using drugs. How the decision will ultimately affect driving-under-the-influence cases statewide is unclear, but the order cheered prosecutors who had been stymied from introducing evidence that defendants were driving erratically because of drugs in their system.

For now, police officers can still use the urine test. Prosecutors and defense attorneys are waiting for word from the Florida Supreme Court, which is expected to rule on a Tampa-area case that should clarify whether such drug testing is admissible.

The controversy began after the Second District Court of Appeal in Lakeland ruled in October 2002 that the urine tests could not be used because the testing procedures aren't regulated. The appellate court said without an approved, standardized test, the results were unreliable. The state has an approved method for breath and blood tests for DUI, but not for urine. The decision led judges to suppress the results in hundreds of area cases. But on Wednesday, the Fourth DCA out of West Palm Beach, which covers Broward County, took a different view, basically instructing circuit and county judges not to automatically toss out the urine test results. ''I can't understand a decision that would uphold the use of scientific evidence that has no standards,'' said Xxxxx Xxxxx, a partner with a Miami-based firm that specializes in DUI defense. ``I think they are dead wrong about this.''

The ruling was a major disappointment for defense attorneys, who also argue that the urine tests are unfair because they sometimes detect drug use that occurred weeks after consumption. ''Urine has no place in a DUI case,'' said Miami attorney Robert Reiff, author of Drunk Driving and Related Vehicular Offenses. ``Why are we using a waste product to determine present impairment when all it shows is past consumption?''

Richard Valuntas, an assistant attorney general in West Palm Beach who argued the case for the state, did not return calls to The Herald for comment. The case that is going to the state's highest court began in Tampa with a traffic stop in 2000. A police officer suspected that driver Anthony T. Bodden was impaired, but his blood-alcohol level tested .060 and .065 percent -- under the legal limit for drunk driving. However, the police officer on scene suspected he was impaired and ordered him to take a urine test. The test came up positive for marijuana use. His attorneys successfully fought to have those results suppressed, and Hillsborough County prosecutors appealed.