Urine Test for DUI Cases

The urine test is used to detect the presence of controlled substances in the body after a DUI arrest. Although the urine test can test for the presence of controlled substances, it is not an accurate or reliable way of determining a blood alcohol concentration (BAC) level.

Even for controlled substances, the blood test is considered to be much more accurate.

The request for the urine test must be incidental to a lawful arrest and only when the officer has reasonable cause of impairment from a chemical or controlled substance. As a practical matter, it is very difficult for the prosecutor to actually get the urine test results into evidence at trial.

Another problem for the prosecutor in a DUI urine test is that the criminal defense attorney will file a motion to suppress the urine test results when it was obtained without a warrant because of the recent U.S. Supreme Court decision in Birchfield v. North Dakota, 597 U.S. ––––, 136 S.Ct. 2160 (2016).

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In many cases, the officer will request the urine test after the results of a DUI suspect’s breath-alcohol test are below the legal limit of .08. That request for a urine test is only allowed, however, if the officer actually has reasonable cause to believe that the driver was impaired by chemical or controlled substances.

The most common substance detected in the urine is THC or a metabolite of THC after the consumption of marijuana. It is also common to find evidence that the driver consumed some prescription medication prior to driving.

To be admissible at trial, the urine test must show not just the presence of the substance, but it must also quantify the amount and type of substance found which must be coupled with expert testimony that results of the urine test indicate impairment at the time of driving.

Attorneys for DUI Urine Tests in Tampa, FL

For many practical reasons, the prosecutor has a difficult time getting the urine test into evidence and in front of a jury. The attorneys at Sammis Law Firm are experienced in filing and litigating motions to suppress the urine test so that the court can throw it out of evidence.

Never enter a plea to DUI if the evidence against you is the urine test until after you have seen the lab report and spoken to an experienced lawyer about possible defenses to the charges and the likelihood that the urine test will be suppressed or excluded by the court before trial.

If you were arrested for DUI and asked to submit to a urine test, then contact an attorney at the Sammis Law Firm. We are experienced in fighting DUI cases involving a urine test in Tampa, Hillsborough County, FL, and the surrounding areas throughout Tampa Bay.

If this is your first DUI arrest, call us to find out more about the new DUI Diversion Program in Hillsborough County called RIDR. If you complete the program, then your DUI is reduced to reckless driving and adjudication is withheld so you might be able to seal the record entirely.

Keep in mind that even if you qualify for RIDR, you still need to contest the administrative suspension of your driver’s license or a notation of the suspension will remain on your driving record for the next 75 years.

Whether your urine test will be clean or show the presence of a controlled substance, we can help. Let us put our experience to work for you. Call (813) 250-0500 to discuss the best way to fight your criminal charges for driving under the influence of a chemical or controlled substance.

Motions to Suppress the Warrantless Urine Tests

Has any Florida court ruled on the constitutionality of a warrantless urine test since the Birchfield decision was issued? The law is now clear that a warrant is required for a blood test absent free and voluntary consent or exigent circumstances. Is the same true for a urine test?

The U.S. Supreme Court holding in Birchfield did not squarely apply to urine testings. Instead, the Court reasoned:

“In addition, BAC may be determined by testing a subject’s urine, which also requires the test subject’s cooperation. But urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one.”

Birchfield, 136 S.Ct. 2160, FN1 (June 23, 2016).

In State v. Kepics, 2017 AP 40 (2d Jud. Cir. Ct. 2018), a Leon County Circuit Judge, sitting in an appellate capacity, addressed whether a warrant is required to obtain a urine sample. The Court held that the Birchfield does not require a warrant in urine sample cases for the following reasons:

  • a urine test causes no physical intrusion into the body;
  • there is no piercing of the skin or extracting part of the body to obtain urine;
  • urine is naturally released from the body;
  • urine does not reveal as much information as blood; and
  • providing a urine sample at the jail to a medical professional is not an experience likely to cause any great enhancement in the embarrassment incident to arrest.

For these reasons, the Court concluded that the impact on privacy is slight and the need for urine testing is great.

Other courts have come to a different decision. In State v. Thompson, 873 N.W.2d 873 (Minn. Ct. App. 2015), the court found that as with a warrantless blood test, a warrantless urine test cannot be justified under the search-incident-to-arrest exception.

“There are few activities in our society more personal or private than the passing of urine.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 1412–13, 103 L.Ed.2d 639 (1989) (quotation omitted). Since a driver must produce a urine sample in front of an officer, a urine test is unquestionably more intrusive than a breath test.

In State v. Bernard, 859 N.W.2d 762 at 768 n. 6, the court explained that a breath test is far less invasive than a blood or urine test. A urine test “intrudes upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S.Ct. at 1413.

Although no DCA has ruled on this issue, two (2) Florida Circuit Courts have held in their Appellate Capacity that Birchfield does NOT apply to urine testing:

  • State v. Kepics, 26 Fla. L. Weekly Supp. 357c (Fla. 2d Cir. Ct., Appellate, Sept. 14, 2018) (reversing State v. Kepics, 25 Fla. L. Weekly Supp. 893a (Fla. Leon Cty. Ct., Dec. 7, 2017); and
  • State v. Riddle, 26 Fla. L. Weekly Supp. 709b (Fla. 12th Cir. Ct., Appellate, Dec. 20, 2018) (reversing State v. Riddle, 26 Fla. L. Weekly Supp. 148a (Fla. Sarasota Cty. Ct., April 23, 2018).

Filing a Motion to Suppress the Warrantless Urine Test

As a result, DUI defense attorneys are filing motions to suppress the urine test case results as a violation of the Fourth Amendment’s warrant requirement. If the urine was requested without a warrant and pursuant to the implied consent statute, the defense should file a motion to suppress under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).

Birchfield made clear in dicta that the “search incident to arrest” exception for a breath test is not applicable to a urine test. Other exceptions to the warrant requirement might include:

  1. inevitable discovery exception to the exclusionary rule;
  2. free and voluntary consent (without the threat of an administrative driver’s license suspension);
  3. exigent circumstances; and
  4. good faith.

The motion seeks to suppress the urine test and results must be suppressed. The state cannot rely on voluntary consent since the officers often attempt to secure the sample under Florida’s implied consent law.

A second argument can be made that even if the defendant gave consent for the urine test and the officer never mention implied consent or any negative consequences of refusing, the State must still prove that the consent was freely and voluntarily given.

Birchfield mandates that the officer was required to obtain a warrant for the urine sample and no other exception to the warrant requirement can be established. In Birchfield, the Supreme Court of the United States designed a test for examining the legitimacy of a warrantless search in a DUI investigation based on:

  1. the amount of physical intrusion required to obtain the evidence;
  2. the extent to which the sample may be preserved and used to acquire additional private information; and
  3. the amount the test would significantly increase the embarrassment already inherent in an arrest.

A urine test requires a person to undress and expel their urine in a tiny cup in front of an officer which is much more intrusive than a breath test. In some cases, the officer will make a visual or aural monitoring of the act of urination which implicates privacy interest.

Urine samples can reveal a host of private medical facts about a person (such as whether the person is pregnant, diabetic or epileptic), even though only the BAC can be determined from a breath test. For this reason, a urine sample raises the same privacy concerns as the blood test address in Birchfield.

Does the Officer Need a Warrant for the Urine Test?

In State v. Riddle, 26 Fla. L. Weekly Supp. 148a (2018), in a decision out of the 12th Judicial Circuit in Sarasota County, the court granted the Defendant’s Motion to Suppress the Urinalysis Results because the urine sample was taken without a warrant.

In that case, the warrantless search of the “urine draw and subsequent urinalysis” was the sole issue for the court to decide. The court considered whether the taking of a warrantless urine sample acquired after reading Florida’s Implied Consent warning was obtained with the voluntary consent of the Defendant.

In Riddle, the court ultimately concluded that the warrantless urine sample collected in the case was the result of an unreasonable search and seizure, without the voluntary consent of the Defendant. The court cited Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) [26 Fla. L. Weekly Fed. S300a] and a decision from the Minnesota Supreme Court that applied the Birchfield framework to urine testing.

In State v. Thompson, 886 N.W.2d 224, 230-33 (Minn. 2016), cert. denied, __ U.S. __, 137 S.Ct. 1338, 197 L.Ed.2d 520 (2017), the Minnesota Supreme Court held that warrantless urine tests are not permissible as a search incident to a valid arrest of a suspected drunk driver. The Minnesota Supreme Court in Thompson concluded the physical intrusion of a urine test on an arrestee’s bodily integrity was similar to the intrusion of a breath test. Id. at 230.

The court said, however, a urine test raised the same privacy concerns as a blood test regarding the amount of information obtained by law enforcement and the potential for abuse involved with the retention of a urine sample. Id. at 230-31.

The court also said urine tests implicate significant privacy interests and cause considerably more embarrassment to an arrestee than breath tests. The court thus concluded the intrusion on an arrestee’s privacy for a urine test was like the blood test in Birchfield:

In sum, in terms of the impact on an individual’s privacy, a urine test is more like a blood test than a breath test. Specifically, although a urine test does not require a physical intrusion into the body in the same way as a blood test, urine tests have the potential to provide the government with more private information than a breath test, and there can be no question that submitting to a urine test under the watchful eye of the government is more embarrassing than blowing into a tube.

Thompson, at 232.

Urine Tests and Florida’s Implied Consent

Florida law provides that any person who accepts the privilege of driving in the State of Florida is, by so operating a vehicle in this state, deemed to have given his or her consent to submit to a urine test for the purpose of detecting the presence of chemical or controlled substances under certain circumstances.

However, after the United States Supreme Court decided Birchfield, it appears that this demand for urine is still subject to the warrant requirement. Without a warrant (which the police never have) then urine should be suppressed after the appropriate motions are filed.

Prior to Birchfield, the circumstances that allowed the officer to ask for urine first required that the person be placed under arrest for driving or being in actual physical control of a motor vehicle while under the influence of chemical substances or controlled substances.

Before the arresting officer can request a urine test, the law enforcement officer must have “reasonable cause” to believe that the person was under the influence of a chemical or controlled substance. § 316.1932(1)(a), Fla. Stat.

Florida law does not provide a presumption of impairment with a urine test. “[U]nlike a breath or blood test which determines alcohol content, a level of impairment cannot be extrapolated from a drug concentration detected in a urine sample. In other words, it would be very difficult to conclude that a person was under the influence of a particular drug to the point that his or her normal faculties were impaired at the time of his or her arrest based solely on the presence of the drug in the person’s urine.” Bodden, 877 So.2d at 689.

The presence of drugs in the urine found by the urine test results is one relevant factor in determined whether a specific individual was impaired. Based upon the simpler methodology in administering a urine test, along with its less intrusive nature, and the absence of any presumptions regarding impairment, the courts in Florida have concluded that the application of the “reasonable cause” standard to a request for a urine test would be consistent with the legislative intent and purpose of section 316.1932, Fla. Stat.

Purpose of Urine Testing in DUI Cases

The purpose of the urine test is to detect the presence of chemical or controlled substances, either directly or through the presence of the metabolites of the chemical or controlled substances.

In many ways, a urine test is less intrusive than blood testing. The urine test must be administered at a detention facility or any other facility, mobile or otherwise, that is equipped to administer such tests in a reasonable manner.

The manner of administering the urine test must ensure the accuracy of the urine specimen and maintain the privacy of the individual involved.

Lack of Formal Rule Promulgation for Urine Tests in DUI Cases

Unlike a breath or blood test, the methods for conducting urine tests are not required by the implied consent statute to be “approved” through the Administrative Procedure Act (APA) rule promulgation. See State v. Bodden, 877 So. 2d 680 (Fla. 2004).

The prosecutor will argue that despite the lack of formal rule promulgation, the urine test results are admissible under Florida’s implied consent laws. The prosecutor will argue that the urine test results may be admitted into evidence during a trial so long as the State lays the proper common law predicate, which includes a determination that the testing methods utilized are reliable. Id.

On the other hand, the defense attorney will often argue that the results of the urine test should be suppressed as inaccurate and unreliable. The defense attorney will often argue that the results might show prior use of the chemical or controlled substance, but shed little light on whether the person was impaired from the substance at the time of driving.

Procedures for Urine Testing in Florida

For DUI cases in Hillsborough County, the urine test is collected using the urine collection kit provided at the Central Breath Testing (CBT) Facility at the Hillsborough County Sheriff’s Office.

The arresting officer (or another designated Detention Deputy) will observe the person while the person provides the sample in the restroom at CBT or another facility. The sample must be provided in the presence of a Law Enforcement Officer or Detention Deputy.

The plastic bag containing the labeled urine sample and the completed “FDLE Toxicology Services Request Form” must be placed in the cardboard mailer box.

The arresting officer will then charge the person with the DUI offense using a Florida Uniform Traffic Citation. On the citation, the officer will make a notation that the DUI charge is “Pending Urine Results.

Thereafter, the officer must deliver, as soon as possible, the urine sample to the Evidence Control Section for refrigerated storage. The Criminal Investigations Division will assign a detective who will be responsible for forwarding the urine sample to FDLE for analysis and for receiving the results once the analysis is completed.

Finding a Lawyer for a Pending DUI Urine Test in Tampa, FL

The DUI attorneys at the Sammis Law Firm are experienced in fighting to exclude the urine test results in different types of DUI cases throughout the Tampa Bay area, including the courthouses in Tampa and Plant City, FL.

We also have a second office for DUI cases in New Port Richey, FL, in Pasco County. Our New Port Richey office is located directly across from the West Pasco Judicial Center.

Contact us to find out how a chemical test result might be used in a DUI case. We also represent clients accused of refusing to submit to a urine test after a DUI arrest.

Call a criminal defense attorney at Sammis Law Firm today to discuss your case at 813-250-0500.

Urine Testing

This article was last updated on Friday, January 7, 2022.