Can I get a DUI in Florida for marijuana or prescription drugs?

Most people think of DUI as a drinking offense, but Florida's statute is broader. Section 316.193(1)(a), Florida Statutes, makes it a DUI to drive or be in actual physical control of a vehicle while "under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired." FLHSMV's summary of the law adds that DUI by alcohol, chemical substances or controlled substances "is one offense," with the same penalties however it is proved. This page explains how drug and medication cases differ in practice. Mr. Mead's approach to DUI charges is on the main DUI defense page.

Which substances count?

Many medicines on these schedules are lawfully prescribed every day. The statute does not exempt them: what matters is whether the substance affected the driver "to the extent that the person's normal faculties are impaired." A drug charge outside of driving, such as possession, is a separate matter covered on our drug offenses page.

Possessing the drug itself, apart from driving, is a separate charge with its own degrees, covered in the penalties for drug possession in Florida. Marijuana, including what a medical card does and does not allow, is covered in whether marijuana possession is still a crime.

How is a drug DUI investigated, step by step?

1. The stop and observations. The officer looks for signs of impairment in driving, speech, balance and behavior. For drugs, there is no breath number to rely on, so these observations carry more weight.
2. Breath first, in many cases. A breath test only measures alcohol. A low or zero breath result is often what leads an officer to suspect drugs; breath testing rules are explained in how a Florida breath test is done.
3. A urine request after arrest. A driver lawfully arrested for DUI involving chemical or controlled substances is deemed to have consented to a urine test, given at a detention facility or another equipped facility "in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual" (s. 316.1932(1)(a)1.b.).
4. Blood in some cases. At a hospital or in an ambulance, when breath or urine is impractical, or after a crash causing death or serious bodily injury, blood may be drawn and tested for controlled substances (ss. 316.1932(1)(c), 316.1933(1)(a)). The rules are covered in can police take your blood after a DUI crash.
5. The lab wait. Drug results usually take longer than a breath reading, so the evidence may still be developing at first appearance and arraignment.
6. The criminal case. The order of events after an arrest is set out in what happens after a DUI arrest in Florida.

Does a medical marijuana card protect me?

Not for driving. Florida's medical marijuana law protects "medical use," and its definition excludes use or administration of marijuana "In a school bus, a vehicle, an aircraft, or a motorboat, except for low-THC cannabis not in a form for smoking" (s. 381.986(1)(k)). A qualified patient who uses marijuana, other than low-THC cannabis, in a vehicle commits a first-degree misdemeanor (s. 381.986(12)(c)). Before certifying a patient, the physician must obtain informed consent that covers, among other things, "a warning against operating heavy machinery, operating a motor vehicle, or engaging in activities that require a person to be alert" (s. 381.986(4)). None of these provisions changes the DUI statute, which applies to impairment by any controlled substance.

What changes the answer?

• Impairment, not presence. Florida's per se limits of 0.08 are written for blood and breath alcohol only (s. 316.193(1)(b), (c)). For drugs, the State must prove the substance impaired normal faculties, which makes timing and the officer's observations central.
• Whether a refusal occurred. Refusing a lawful urine test brings a 1-year license suspension, or 18 months after a prior suspension, and is itself a misdemeanor, as explained in what happens if you refuse a test in Florida.
• Alcohol in the mix. If there was also alcohol, a breath or blood level of 0.08 or more is a separate way to prove the case.
• A crash. Injury or death raises the charge and allows a forced blood draw, as covered in what happens when a DUI involves a crash.
• Separate drug charges. A test given to detect a controlled substance under the implied consent statutes is not admissible in a prosecution for possessing that substance (ss. 316.1932(2), 316.1933(3)(b)), but drugs found in the car can lead to their own charges.

What happens to my license in a drug DUI?

It depends on the test. The administrative suspension at arrest under section 322.2615 applies to a driver with a blood or breath alcohol level of 0.08 or higher, or to a driver who refused a urine, breath or blood test. A driver who gave a urine sample in a drugs-only case does not fit either category at the roadside, so the license question usually arises later, on a conviction, when the court must revoke the license for at least 180 days on a first DUI (s. 322.28(2)(a)1.). How the 10-day deadline works when it does apply is explained in keeping your license within 10 days of a DUI arrest.

Are the penalties different for drugs?

No. FLHSMV states that "the penalties upon conviction are the same, regardless of the manner in which the offense is proven." The fines, jail limits, probation, DUI program, community service and impound are the same as for an alcohol DUI, and are set out in our Florida DUI penalties table. The DUI program's substance abuse course covers abuse of any substance in Schedules I through V of section 893.03 (s. 316.193(5)).

A worked example

For example, a hypothetical driver with a valid prescription for a Schedule IV sleep medication takes a dose, drives the next morning, and is stopped in Broward County for drifting between lanes. Her breath test reads 0.000. After the arrest, the officer asks for a urine sample at the jail, and she provides one. Weeks later, the lab reports the medication. The State's case would rest on whether the medication impaired her normal faculties at the time of driving, using the officer's observations, any video and the lab report; the prescription itself would not be a defense under the statute's wording, but the timing of the dose and what the lab can and cannot show about impairment would be central. Because she did not refuse and had no alcohol, there would be no roadside administrative suspension. The scenario is invented and predicts nothing.

Common mistakes people make

• Believing a prescription or a medical marijuana card is a defense to a DUI charge.
• Explaining to the officer when and how much of a medication was taken, before speaking to a lawyer.
• Assuming a zero breath result ends the investigation.
• Refusing a urine test without understanding the suspension and the separate refusal charge.
• Keeping marijuana or pills loose in the car, which can lead to separate charges.

What to do this week

1. Gather your prescriptions, pharmacy labels and the doctor's instructions for any medication you take.
2. Write down when you last took each medication or substance before driving, for your lawyer only.
3. Keep the paperwork from the arrest, including any notice of suspension.
4. Ask your lawyer to request the lab reports and the details of any urine or blood test.
5. Do not drive if you have been told the license is suspended, and check the date any temporary permit ends.

Frequently asked questions

Is there a legal THC limit for driving in Florida?

No. The numeric limits in section 316.193(1)(b) and (c) are for blood and breath alcohol. A marijuana DUI must be proved through impairment of normal faculties.

Can I be charged if I took my medicine exactly as prescribed?

The statute covers any substance controlled under chapter 893 when it impairs normal faculties, and it contains no exception for prescribed use. Whether the medicine actually impaired the driver is the question the case turns on.

Do I have to give a urine sample?

After a lawful arrest for DUI involving chemical or controlled substances, Florida's implied consent law applies to urine. Refusing brings a license suspension and a misdemeanor charge, and the refusal can be used as evidence (s. 316.1932(1)(a)1.b.).

Can CBD or low-THC products lead to a DUI?

The medical marijuana law treats low-THC cannabis that is not smoked differently for use in a vehicle. The DUI statute still applies to any controlled substance that impairs normal faculties, so the answer depends on the product and on impairment.

Is a drug DUI eligible for the Palm Beach first-time program?

The State Attorney's program sheet is written around breath alcohol tiers and says eligibility "is determined at the sole discretion of the D.U.I. filing unit." Its terms are on our page about the Palm Beach County first-time DUI program.

Does a drug DUI conviction stay on my record?

Yes. A DUI conviction carries a mandatory adjudication whatever the substance (s. 316.656(1)), so it cannot be sealed. Which DUI outcomes can be cleared is explained in can a DUI be sealed or expunged in Florida.

How can Mr. Mead help?

Drug and medication DUI cases turn on proof of impairment, timing and lab work, which makes them different from a breath test case. Mr. Mead reviews the observations, the video and the toxicology, and explains what the State can and cannot show. Every case is different, and no outcome can be promised. For a confidential conversation, call (561) 362-6677, 24 hours a day.

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