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Florida Legislature Makes Third Attempt To Pass Adult Pre-Arrest Diversion

Pre Arrest versus Post Arrest Diversion

Diversion programs are designed within the the criminal justice system to avoid a formal conviction. A pre-arrest diversion program for minors was approved by the Florida Legislature many years ago. "Pre-arrest" avoids a formal arrest and most importantly, a judicial record of that arrest.  Although adults can take advantage of post-arrest diversion programs, a law approving a pre-arrest diversion program for adults has never existed. The rationale is likely that adults should be held to a higher standard than juveniles and adults could still take advantage of the "post arrest" Pre-trial intervention program (P.T.I.). Successful completion of PTI results in a dismissal of the charge and eligibility to have the criminal records expunged.     

Florida's Failure to Pass Enabling Legislation for APAD - Three Times a Charm? 

The Florida legislature has twice before attempted to pass legislation approving a pre-arrest diversion program for adults: 

The unconventional law was first proposed under House Bill 1031 and Senate Bill 618. The House of Representatives Staff Analysis for CS/HB 1031 rightly    pointed out that although pre-arrest diversion programs for juveniles are approved by Florida law, pre-arrest diversion programs for adults” have never been authorized.  

One can only surmise that Pinellas county officials felt very confident that the law would pass. In anticipation of the legislation, Pinellas spent significant      money and effort creating the "Adult Pre-Arrest Diversion program (APAD). See Video: You Paid For It: $300,000 Pinellas Arrest Diversion Program Sidesteps Justice System. Unfortunately, Pinellas "lost the bet" since the adult pre-arrest diversion program legislation failed on 3/11/16. Despite the failure to procure an enabling act for APAD and without lawful authorization, on October 17th, 2016 the Pinellas County Sheriff's Office elected to still go ahead with their APAD program. (Read a comprehensive article on how the APAD program works and the constitutional issues raised because of the absence of authorizing legislation.)

A second attempt to pass legislation approving an adult pre arrest diversion program failed again on 5/5/17. This similar law was proposed under House Bill 367 and Senate Bill 448.

Today, Florida State Representative Larry Ahern filed House Bill 1197 which is a companion to Senate Bill 1392 filed late last week.These Bills represent yet a third effort to pass APAD legislation.

How New House Bill 1197 Differs from Pinellas APAD

• No Florida law exists giving Pinellas County the authority to create, adopt and administer their current APAD program. Because the Pinellas program is operating without the sanction of the legislature, the program is violating several constitutional protections. This proposed legislation would give the county the authority to enact an APAD program that complies with the proposed new Florida law. (See: lines 1-89)
• The House Bill encourages all counties to share data about APAD participants with other Florida counties. Currently, Pinellas county is operating in the dark and may be admitting individuals into their APAD program who would otherwise be ineligible because of their earlier participation in the Leon county APAD program. (See lines 89-91) The House Bill seeks to correct this deficiency by requiring the program to electronically provide the Clerk of Court with each participant’s personal identification information which is required to be maintained in a statewide database.  (see lines 139-149)
• In Pinellas county, law enforcement officers have no discretion and are required to divert all qualifying individuals into the APAD program. Under the House Bill, law enforcement officers can examine the facts and circumstances of each case and exercise their discretion in deciding which cases are APAD appropriate. (See: Lines 95-99)
• The House Bill mandates that only certain individuals are charged with the development and implementation of the APAD program. It does not authorize law enforcement authorities or the Chief Judge of each county to become involved in this process. In Pinellas County, the Chief Judge, Pinellas County Sherriff and all Chiefs of local Police Departments are signatories of the APAD administrative order and APAD operational guidelines. (See; lines 124-134)
• The House Bill mandates that in the creation of the APAD program, the authorized representatives creating the program must solicit input from other interested stake holders. In creating the Pinellas County APAD program, several stakeholders were never contacted. These include the criminal defense bar, the Pinellas Association of Criminal Defense Lawyers, the St. Petersburg Bar Association, The Clearwater Bar Association, the Barney Masterson Inn of Court and the Pinellas County Trial Lawyers Association.  (See: lines 134-135) 
• The House Bill enables successful APAD participants to have records related to their case “sealed.” No such provision in the law currently exists. Accordingly, the records of APAD participants are presently available through a simple Public Records Request under Florida Statute Chapter 119.(See lines: 166-172)

How Senate Bill 1392 Differs from House Bill 1197

• The Senate Bill includes law enforcement agencies among those charged with the task of developing and implementing the APAD program. (See: SB lines 104-108) The House Bill excludes law enforcement. Neither the Senate Bill or House Bill authorize the Chief Circuit Judge’s participation.
• The House Bill requires input from other stakeholders. The Senate Bill merely states that such input “may be solicited.” (See SB lines 276-278)
• The Senate Bill discusses pre-existing APAD programs and requires a review by the State Attorney to ensure that their program is “substantially similar” to the model program defined by the new law. (See: SB lines 127-136 and lines 295-310) The House Bill is rightfully silent on the treatment of pre-existing APAD programs since without the passage of the proposed legislation, prior authority for a county to operate an APAD program did not exist.

Our office has consistently opposed the operation of the APAD Program in Pinellas County because it was never created or authorized by state lawmakers. As a result, the court system and the protections of the Federal and Florida Constitutions are regularly side-stepped due to unequal application, errors, omissions, and a lack of any mechanism to correct problems that regularly arise. Although new state legislation would be a "start" towards a more appropriate method of addressing misdemeanor offenders, there are many protections missing in the pending legislative bills. If the Florida Legislature is serious about creating a fair and just "Pre-Arrest Diversion Program" for adults, it should give greater consideration to uniform procedures and implement strict statewide guidelines to prevent abuse and discrimination. As it stands right now, these pending bills are little more than an attempt to retroactively "rubber stamp" the troubled Pinellas APAD Program.

 

 

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Should I agree to Take a Urine Test if Arrested for DUI in Florida?

One of the most common questions that any DUI Defense Attorney is asked is “Should I Take the Breath Test?”  A less common  question, is “Should I Submit to Urine Testing” if arrested for a DUI offense.

 

Why Would the Police Ask for a Urine Specimen?

While most people are familiar with the idea that if they are arrested for Driving Under the Influence in St. Petersburg or Clearwater, Florida, the police will request a breath test, fewer people are aware that law enforcement may also request that you submit to urine testing.

Florida Statute §316.1932(1)(b) provides that any person who has accepted the privilege to drive in the State of Florida has “impliedly consented” to a test of their urine for the purpose of detecting the presence of chemical or controlled substances if the individual has been lawfully arrested for driving under the influence and law enforcement has probable cause to believe that the individual is impaired by a chemical or controlled substance.

While a breath test is the primary method by which law enforcement would determine a person’s blood alcohol level, the testing of a urine specimen is the primary means by which law enforcement would determine if an individual has consumed a controlled substance or chemical substances.

 

Flaws in Urinalysis Testing

The problem with urine test results is that it only provides historical information.  While a urine test is generally accepted within the scientific community as a reliable method of determining whether or not a substance has been consumed, it is wholly unreliable in determining how recent the substance had been consumed. (See : Urine Testing...Is it Reliable Evidence in a DUI Case?)

There are many substances, such has antidepressants, pain medications and cocaine, that will remain detectable in a subject’s urine sample for up to a week after consumption.  Likewise, marijuana can be detected in a urine sample for up to a month, or even longer, depending on the individual’s body type and frequency of marijuana use. (See: How Long Will a Drug Test Be Positive?)

As a result, the submission of a urine sample could show the presence of a substance that the defendant is not currently under the influence of.  Of course, law enforcement will allege that the subject was impaired by the substance at the time of the arrest.

 

Is there a Benefit to Refusing the Urine Test?

In some cases, there is a tremendous benefit to refusing the urine test.  In order to establish that a defendant is guilty of Driving Under the Influence of a Controlled or Chemical Substance, the State must establish not only that the subject was impaired, but also that the source of the impairment is a substance that is defined by Florida law as a Controlled Substance, pursuant to Chapter 893 of the Florida Statutes, or an illicit chemical substance, as defined by Chapter 877 of the Florida Statutes.

Imagine this scenario:  you take your prescription pain medications.  You then get in a car and, for whatever reason, you are stopped by law enforcement.  The officer believes that you are impaired.  You exercise your right to remain silent and you do not provide the officer with any information as to any medications or other substances that you consumed.  You do not have your prescription medications with you in the car.  After your arrest, you are taken to the police stations and submit to a breath test.  Of course, because you have not consumed any alcohol, the results of the breath test are 0.000.  The officer then requests that you submit to a urine test. 

In this scenario, if you decline to submit to the urine test, the officer and the State Attorney will likely be unable to prove that you are DUI as they will be unable to establish that the source of the alleged impairment was a Controlled or Chemical substance.  In other words, in this scenario, you may arm your attorney with a strong argument to either secure a reduction in charge, a Not Guilty verdict, or an outright dismissal.

 

What Happens if I Refuse the Urine Test?

If you decline to submit to a urine test, the officer who arrested you will file a citation with the DHSMV alleging that you refused urine testing which will contain a “Notice of License Suspension.”  If this is your first and only DUI arrest in your lifetime, a first refusal to submit to a breath or urine test will result in a suspension of your privilege to drive for a period of one year.  If you agree to submit to a urine sample, although you may damage your chances of success in the criminal court, you will not suffer an administrative suspension of your license regardless of what substances are found in your system (though, if you are later convicted of a DUI, you would suffer a license suspension from the criminal court).  If this is your first and only DUI arrest in your lifetime, you would be immediately eligible to apply a hardship license for the entire one year driver’s license suspension.

If your driver’s license has previously been suspended for refusing to submit to a breath, urine or blood test, and you refuse a urine test for the present offense, there are two consequences.  First, you will suffer an eighteen month driver’s license suspension during which time you will be ineligible to obtain a hardship license.  Second, your refusal to submit to chemical testing may result in an additional first degree misdemeanor charge being filed against you for refusal to submit to testing.

 

How do I Protect Myself if I am Unsure if I will Test Positive on the Urine Test?

In some cases, a person is arrested for Driving Under the Influence and they are unsure of whether they will test positive for a controlled substance.  For example, the individual may have smoked marijuana at a party a few weeks ago, or taken an anti-anxiety medication the day before. In this scenario, there is a solution.

Under Florida law, if you submit to the breath and urine tests requested by law enforcement, you are entitled to have an independent blood draw conducted to determine the presence of chemical or controlled substances in your blood.  Although a urine test cannot tell us when a substance was consumed, a blood test is much more accurate for determining how recently a substance had been consumed.  Thus, if you are arrested for DUI, but concerned about the joint that you smoked at a party a few weeks ago, it may be wise to advise the officer “yes, I will submit to the urine test, but I would also like your assistance in obtaining an independent blood test.” 

Obtaining an independent blood test that yields results that demonstrate that you did not have any chemical or controlled substances in your blood stream at the time of your arrest can often be iron-clad affirmative evidence that you were not DUI.

 

What Should I do if I have been Charged with a Drug-Related DUI Offense in Pinellas County?

The DUI defense attorneys in our office are former state prosecutors and have nearly 25 combined years of experience representing individuals arrested for a DUI charge. We limit our practice to only DUI and Criminal Defense and only in Pinellas County. 

Call our office today and schedule a free consultation to discuss the unique facts and circumstances of your case with an experienced DUI lawyer. 

 

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