Morgan’s Tip of the Week – Intoxication Defense, Preserving Samples


I am working through a case now regarding the Intoxication defense, and thought it would make a good tip.  More specifically, what to do if a claimant is taken to the hospital after the accident, and there is suspicion of drugs or alcohol.

If the claimant is sent to the walk-in clinic, normally a valid drug screen can be requested and will be performed.  However, at the hospital, they will often draw a blood sample and test it for treatment purposes, but the sample does not under go the formal testing procedures.  The Fla Administrative Code lays out the process for drug testing, and it’s a very detailed process involving forms, labels, qualifications of everyone involved, etc….

If there is a valid (as defined by statute) positive drug test, whether the employer maintains a statutory drug-free workplace or not, it is presumed the injury was due to the intoxication of the claimant.   The is commonly referred to as the Presumption.   In this case, the claim is presumed intoxicated, and has to prove the accident would have happened regardless.

A sample drawn for medical treatment reasons does not undergo the formalities of the drug screen required by the code, therefore the courts have said that a medically drawn sample does not give the Employer/Carrier the Presumption.   Without the Presumption, we would have to prove the intoxication, and that it caused the accident.  Much more difficult for us.

So, what do you do?

As soon as possible, you need to get a defense attorney (ahem…plug plug …in our firm) involved to file a motion with the JCC to have the hospital preserve the sample.   Then after the order is granted, a copy of the order is sent to the hospital and the hospital’s legal dept.  A drug testing company can then be allowed to go pick up the sample, and put it into the formal valid testing process.  If positive, this will give you the Presumption, putting the burden on the claimant to disprove the case.

Here’s the statute and caselaw:

Under 440.09:

(3)  Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician; or by the willful intention of the employee to injure or kill himself, herself, or another.

(7) (a)  To ensure that the workplace is a drug-free environment and to deter the use of drugs and alcohol at the workplace, if the employer has reason to suspect that the injury was occasioned primarily by the intoxication of the employee or by the use of any drug, as defined in this chapter, which affected the employee to the extent that the employee’s normal faculties were impaired, and the employer has not implemented a drug-free workplace pursuant to ss. 440.101 and 440.102, the employer may require the employee to submit to a test for the presence of any or all drugs or alcohol in his or her system.

(b)  If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. Percent by weight of alcohol in the blood must be based upon grams of alcohol per 100 milliliters of blood. If the results are positive, the testing facility must maintain the specimen for a minimum of 90 days. Blood serum may be used for testing purposes under this chapter; however, if this test is used, the presumptions under this section do not arise unless the blood alcohol level is proved to be medically and scientifically equivalent to or greater than the comparable blood alcohol level that would have been obtained if the test were based on percent by weight of alcohol in the blood. However, if, before the accident, the employer had actual knowledge of and expressly acquiesced in the employee’s presence at the workplace while under the influence of such alcohol or drug, the presumptions specified in this subsection do not apply.

(c)  If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs.

(d)  The division shall provide by rule for the authorization and regulation of drug-testing policies, procedures, and methods. Testing of injured employees shall not commence until such rules are adopted.

Temporary Labor Source v. B.H., 765 So.2d. 757 (Fla.1st DCA 2000).  A drug test performed for medical purposes may be admissible to support intoxication defense under 440.09(3), BUT the presumptions set out in section 440.09(7)(b) do not arise as a result of a positive confirmation drug test using a medically drawn sample unless the Florida Administrative Code rules required by 440.09(7)(d) are followed.

The claimant was riding on the outside of a garbage truck, in violation of the employer’s policy, when he fell.  His urine was routinely collected for medical purposes at the hospital, and the presence of cocaine was detected.  The record did not show compliance with the 59A requirements, and therefore the Carrier did not get the presumption, and had the burden of proving the accident was caused by the intoxication. 

While the evidence supported a finding that the claimant was under the influence of a drug at the time of the accident, E/C failed to prove, by the greater weight of the evidence, the influence of drugs was the primary cause of the accident.  The JCC found the accident was caused by fatigue brought on by seven hours of work or simple inadvertence. 

Morgan Indek | Partner