DUI Test Dispute Could Affect Cases

By Jay Weaver

• The Miami Herald
• Nov. 30, 2002

The fate of a Tampa-area DUI case, dependent on a urine test for drugs, could affect potentially thousands of driving-under-the-influence prosecutions statewide -- including about 400 in Miami-Dade County.

The case, stemming from a traffic stop two years ago, calls into question whether law enforcement officials can give the urine test to suspected impaired drivers and use it as evidence against them.

A state appeals court recently answered no to that question, saying the results cannot be used because the test has not been approved under Florida law.

The Second District Court of Appeal in Lakeland ruled in October that the state has to follow technical, legal procedures to develop a urine test so it can be used in DUI cases involving drugs. The Florida Department of Law Enforcement has established an approved method for breath and blood tests in DUI cases involving alcohol -- but not for urine tests.

The Tampa-area case could be reheard by the full appeals court in Lakeland, and eventually by the Florida Supreme Court. For now, police officers can continue to use the urine test on suspected impaired drivers, but the results cannot be admitted as evidence as long as the Tampa-area case stands as law.

''If the law is going to provide an approved DUI test for alcohol, how can you say you're not going to get an approved test for drugs?'' said Tampa attorney Eilam Isaak, who represented the Tampa man charged with DUI for drugs. "That's a clear violation of the most fundamental principle under the law, equal protection.''

The appellate decision does not affect cases using breath or blood tests. But it does affect people charged with DUI who do not have an illegal amount of alcohol in their blood, but whose urine tests show they are under the influence of drugs.

The opinion stems from a traffic stop of Anthony T. Bodden of Seffner, near Tampa, in August 2000. Breath tests showed he was not impaired by alcohol. His blood-alcohol level tested .060 and .065 percent -- under the legal limit for drunken driving.

Still suspected of being impaired, Bodden was asked by a police officer to take a urine test, which came up positive for marijuana.

Bodden was charged with possession of marijuana and drug paraphernalia as well as with the DUI charge. His attorney successfully got the test suppressed as evidence before trial, and Hillsborough County prosecutors appealed. That led to the Lakeland appellate opinion that has stirred up prosecutors statewide, especially those in South Florida, who have the greatest concentration of DUI cases involving drugs.

''We're very disappointed with the ruling,'' said Stephen Talpins, chief of the county court division of the Miami-Dade state attorney's office. "This is affecting prosecutors throughout the state of Florida.''

Talpins said he and other prosecutors believe the appellate court erred when it concluded that because Florida lacks an approved urine test, it is invalid. The prosecutors' argument: The Legislature never gave the Florida Department of Law Enforcement authority to develop an approved urine test, therefore approval is unnecessary.

''We hope their decision will be reversed,'' Talpins said, noting Miami-Dade prosecutes about 6,000 DUI cases a year, including 400 involving alleged drug use.

Veteran Miami defense attorneys who specialize in DUI cases said the state's urine test is flawed, and not just because it has never been approved.

They said the test does not quantify the amount of drugs in a driver's system. The test only confirms whether a driver has drugs in his urine. Moreover, the drugs themselves -- whether illegal or prescription -- could have been in the motorist's system for days.

''It doesn't have any evidentiary value that the driver was impaired at the time he was driving because it's a waste product,'' said a South Florida lawyerwho has handled dozens of DUI cases involving drugs. "Marijuana can metabolize in your system for weeks.'' "The system is flawed because there is no way to quantify the drugs in the urine.''

South Florida lawyerRobert Reiff, author of Drunk Driving and Related Vehicular Offenses, said the courts have allowed the urine test for years as part of a campaign to crack down on impaired drivers who threaten innocent victims. But Reiff said that does not necessarily justify using the unapproved test.

''DUI law is built on the ends, not the means,'' Reiff said. "As a society, we don't do what is most accurate, we do what is most efficient for the police.''

An FDLE spokesman reached Friday said she could not comment on the appellate case because her office was closed.

If the appeals court's decision stands, the Legislature would have to give the FDLE the authority to craft an approved methodology for the urine test.