Advertising Disclosure Email Disclosure

Claimant unable to overcome presumption of marijuana intoxication.

October 1, 2018
Bonita Brinson v. Hospital Housekeeping Services, LLC and Broadspire, No. 1D-17-505 (1st DCA, Jun. 22, 2018)

Florida Statute 440.09(7)(b) allows a claimant to rebut the presumption of intoxication by clear and convincing evidence that the intoxication or the influence of drugs did not contribute to the injury. Per F.S. 440.09(7)(e), the claimant must prove the actual quantitative metabolites as measured post-accident and provide additional evidence regarding the absence of drug influence, other than the worker’s denial of being under the influence of a drug.

In this case, the claimant focused on attacking the limits of drug testing and the Act’s reliance upon drug testing results. She presented two doctor witnesses who testified that the presence of drug metabolites do not conclusively indicate that drugs are active in the bloodstream or caused impairment. However, the 1st DCA held that the claimant’s experts also left open the question of whether she was under the influence when the accident occurred. The court held that, “[b]ecause their testimony did not present clear and convincing evidence, she failed to rebut the presumption.”

As pointed out by the 1st DCA, the claimant did not argue that she had been tripped or pushed by a careless patient or co-worker. Nor did she argue that the marijuana in her system was merely inactive residue of some fairly recent usage. The court went on to say that “[a]rguments along these lines, if true in her case, might have rebutted the statutory presumption.”



Case Law Alerts, 4th Quarter, October 2018

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2018 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Affiliated Attorney

Linda Wagner Farrell
(904) 358-4224

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."