If you have been lawfully arrested for DUI (Driving Under the Influence), then the officer may ask you to submit to a breath, urine, or blood test.
As we discuss below, the fact that you were lawfully arrested does not mean that the case can be proven against you beyond a reasonable doubt.
Rather, a lawful arrest simply indicates the following:
- The officer had probable cause to suspect that you were driving under the influence.
- The officer was careful not to violate any of your constitutional or statutory rights while making the arrest.
Interestingly, the law does not prescribe an approved or “validated” list of DUI urine tests. An officer could really use some crappy five-dollar collection kit purchased from Amazon.com.
Fortunately, we can use this lack of protocol regarding urine tests to your advantage.
We can convincingly argue that urine tests are weak science, paling in comparison to blood test results.
Likewise, the very nature of the urine test is that it shows us what was once in the system but is not there anymore. Urine is waste, and waste by its very nature, is no longer acting in your blood stream and impacting you in any way.
Procedures for DUI Urine Tests
Let’s discuss what happens after you submit a urine sample at the jail.
In Hillsborough, Pinellas, and Pasco County DUI cases, urine collection kit are used. These are similar to what you might see in your Doctor’s office.
You will have produced your sample in the restroom at the jail or the Central Breath Testing Unit. This sample should have been provided in the presence of a Law Enforcement Officer or a Detention Deputy. (If not, there may be grounds to challenge the reliability of the sample).
The officer will then take the urine sample from you and put it into a plastic bag. He or she will then place it in a cardboard mailer box.
The officer’s job is to quickly deliver the cardboard box to evidence control. From there, the urine sample will be sent by a detective to the Florida Department of Law Enforcement in Tallahassee for a complete urinalysis of the sample.
This process takes time. Your DUI lawyer will likely already have police reports and other “discovery” on your case before getting the results back from the Florida Department of Law Enforcement. In most of our urine DUI cases these results are the last puzzle piece to your case that we get.
DUI Attorney Defenses to Urine Testing in DUI Cases
So, let’s assume that you have provided a urine sample and you’re sure the resulting evidence will hurt your case and negatively affect your chances at avoiding a DUI conviction.
For DUI Defense, the key is to attack the evidence anywhere and everywhere we can. If we can show a mistake or illegality by the police we may be able to have the evidence resulting from the urine sample thrown out of Supreme court.
If the urine result is thrown out, then the evidence the State shrinks substantially.
The homerun defense in urine-test DUI cases is that the officer arrested you illegally.
The implied consent law is clear: The officer can only take a urine sample after lawfully placing you under arrest.
Some examples of an illegal arrest include continuing with a DUI investigation after an illegal stop or not having probable cause that you were Driving Under the Influence.
One area where this gets fun is when an officer believes a driver is under the influence of alcohol content from beverages and asks the driver to submit to an alcohol test.
Remember that the officer has already made an arrest for DUI. So, he thinks he is right. When the breath test comes back low on alcohol level or negative in alcohol concentration examination, the officer may become confused, and assume that there must be drugs in the driver’s system rather than alcohol.
But remember the law: The officer must have probable cause at the time of the arrest that the driver was under the influence while driving.
Our Judges have interpreted this law to mean that if an officer is going to arrest you for an alcohol DUI then he needs to have probable cause that you are under the influence of alcohol. Similarly, if he is going to arrest you for a drug DUI, he needs to have probable cause that you are under the influence of drugs.
The officer can trip up if the evidence points to an alcohol DUI, but he asks for a urine test without having probable cause that the driver is under the influence of drugs.
Miranda: A One -Two Punch
Miranda rights require the officer to let you know you have a right to remain silent and get an attorney before answering any questions after an arrest.
What does that have to do with urine tests?
Quite a bit.
Recall from earlier, where we discussed how urine tests can be thrown out of court if the officer does not have probable cause that you are driving under the influence of drugs?
Well, one of the ways an officer can show a Court that he did have probable cause to arrest you is by presenting made statements to the officer by the driver, implicating drug use.
But what if we could un-ring that bell?
In some cases, we can. If the officer violated Miranda before getting statements implicating the driver, then we can ask the court to toss out those statements.
THEN, we can readdress the lawfulness of the arrest and ask the court to throw out the urine tests results.
Fighting the Expert Opinion Testimony
Sometimes the arresting officer puts on his “expert” hat and becomes a “Drug Recognition Expert”. This expert status can be bestowed upon the arresting officer after a mere 10 hours of training.
The problem is that this gives the officer the ability to put his opinion in front of the Jury in a commanding way.
In these cases, we want to attack the credibility of the officer’s expert opinion. In fact, these cops are often not experts in the traditional sense at all, and we do not want them fooling the Judge or Jury into thinking so.
Fighting the Expert HGN Testimony
Did the officer waive a flashlight in your eyes and ask you to follow it back and forth?
This is called the HGN test, or Horizontal Gaze Nystagmus.
In some cases, the officer will try to use your performance on the flashlight test to tell the Jury that he can tell you are under the influence of drugs.
If the HGN test is valid, the officer can use this in his argument that he had probable cause for the arrest.
Much like the Miranda defense above, we can attack the HGN and, if successful, reexamine the lawfulness of the arrest and try to throw out the urine tests.
Using an Expert to Argue That Urine Is An Inaccurate Measure of Drug Use
Sometimes our best maneuver is going on the offensive and hiring our own expert.
The best expert in drug cases involving urine test results is a forensic toxicologist.
These toxicologists are trained to analyze urine test results in order to testify in court. In Urine cases, we can get a toxicologist to explain to the Jury just how fundamentally flawed urine results are.
Furthermore, they can explain how long metabolites for certain drugs can stay in the system.
For example, hydrocodone can stay in your “system” for 3-4 days although the high from the drug only lasts for a matter of hours.
Given these facts, the expert can give an opinion that there is no way to know whether or not a person is under the influence at the time of driving simply by looking at the urine results.
Remember, the State Attorney has to prove its case beyond a reasonable doubt. And in this case, it would be inconclusive.
Using an Expert to Argue Therapeutic Effect
Similarly, if the driver of the vehicle uses a controlled substance on a daily basis, and remnants of that substance is found in his or her system, then he or she may have developed a tolerance to the drugs.
If the driver is tolerant of the drugs, then the driver is not impaired by the drugs. Impairment is a prerequisite for driving under the influence.