In recent years, there has been an increase of DUI drug-related arrests. Some of these arrests allege the use of illegal drugs, while others are based on the use of prescription drugs, or even, in some cases, over the counter medications. It is not uncommon, in these cases, for the government to rely on a Drug Recognition Expert (DRE) to assist in establishing the person charged was, indeed, under the influence of a drug, prescription, illegal, or over the counter, and that this drug impaired the driver's ability to drive.
DREs evaluate drivers using a 12 point checklist. Each of the items on this checklist is subject to interpretation, bias, or inadequate assessment due to improper training or challenging conditions. When someone is charged with a drug-related DUI, the conclusions of the DRE should be reviewed and, where appropriate, challenged to the extent allowed by law.
The 12-Point Checklist and Potential Areas for Challenge
1. The Breath Alcohol Test
This first step is typically performed by the officer who initiated the traffic stop. Where a person's breath alcohol test yields a reading of 0.08 or more, the analysis stops and no DRE is called in. Consequently, in every case where a DRE is called in, the DRE expert knows the cop believes the person is under the influence of something but has only confirmed it is not alcohol.
2. Arresting Officer Interview
The DRE starts their “evaluation” by talking with the arresting officer. They review the circumstances of the stop, the field sobriety test results, and other facts surrounding the arrest, as well as the results of the breath test. It is important to note, the information provided to the DRE is not in the form of objective video of the event, but rather, the arresting officer's version of what happened. This is a potential source of bias which could carry through the balance of the 10 items on the checklist.
3. Preliminary Examination and First Pulse
This examination is purportedly to determine whether the driver may be suffering from an injury or other condition not related to drug use. However, the DRE is not a medical professional. Instead, they ask a series of standard questions, and observe the driver's attitude, speech, coordination, breath, and face. Finally, they take the driver's pulse. If the DRE believes the subject has a medical condition, he or she is supposed to seek medical assistance. If, on the other hand, the DRE concludes the condition is drug-related, he or she continues.
4. Eye Examination
The DRE expert examines the driver's pupils and perform the Horizontal Gaze Nystagmus (HGN) test and the Vertical Gaze Nystagmus (VGN) test. When properly administered, these tests may reveal some evidence of impairment. However, studies show police officers “rarely comply with the minimum requirements of the nystagmus examination procedures for which they were trained and certified.”
5. Divided Attention Psychophysical Tests
The DRE expert administers (or, in many cases, re-administers) field sobriety tests, including the Modified Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose test.
It is likely the driver initially did not perform well on these roadside tests, which may have given rise to the call for a DRE expert in the first place. The physical problems that may contribute to a failure at the side of the road will not disappear simply because one is now at the police station. These tests do little to add to the information the police already have.
6. Vital Signs and Second Pulse
At this stage, blood pressure, temperature, and pulse are recorded. These vital signs do not, in and of themselves, prove anything. There are a variety of medical issues and other circumstances that may influence these test results. Anyone who has ever been pulled over by police, regardless of the reason, has experienced the quickening of the pulse and increased blood pressure.
7. Dark Room Examinations
In this test, the DRE estimates pupil size under different lighting conditions. The DRE uses a pupilometer to determine where a driver's pupils fall on a scale, where the choices are dilated, constricted, or normal.
Of course, this test is subjective. A more objective approach would include using an officer to measure pupil dilation without knowing the information about previous checklist results. Bias confirmation occurs when one continues to seek answers that confirm previous conclusions, and disregard information inconsistent with the previous conclusion. In assessing whether dilation is normal versus constricted or dilated, prior information cannot help but influence the decision.
8. Examination for Muscle Tone
This test is premised on the medical fact certain categories of drugs may cause muscles to become rigid, and others may cause the muscles to become loose and flaccid. The problem with this assessment first is that a drug may but does not always lead to these results. Second, to the extent a given muscle is rigid or flaccid is to a certain extent subjective.
9. Check for Injection Sites and Third Pulse
Injection sites may indicate illegal drug use, or it may indicate legitimate injections for medical purposes.
10. Subject's Statements and Other Observations
After reading a Miranda warning, the DRE questions the driver about drug use.
11. Analysis and Opinions of the Evaluator
Once the examination is complete, the DRE must first declare whether the driver is impaired and second declare what category of drugs may have contributed to the driver's impairment.
12. Toxicological Examination
Despite the purported reliability of DRE evaluations, the 12-point checklist calls for a toxicological examination of the driver's blood before a determination is complete.
Are You Facing DUI Charges Related to Alleged Drug Use?
If you are facing DUI charges related to alleged drug use, you need a Hall County DUI lawyer on your side. In every DUI case, our Hall County DUI attorneys carefully review the complete file, including roadside video and the results of chemical testing from the laboratory. We also review the basis for the stop, the roadside field sobriety tests, the maintenance of the instrumentation involved, and the officer's qualifications. Finally, we review the 12-point checklist to determine whether there are legitimate areas to challenge the DRE's conclusions.