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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The Law Offices of Russo Pelletier & Sullivan, P.A.
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702
If you have been arrested for a DUI, we can help! Call our office to discuss the facts and circumstances of your case.
(727) 578-0303
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