If someone has been charged with Operating Under the Influence of Drugs, the Commonwealth must not only prove that he or she was impaired while driving, but also that he or she was impaired by a class of drug enumerated by the statute. In those cases the Commonwealth presents a so-called “Drug Recognition Expert.”
When a police officer stops a driver who appears to be under the influence of intoxicants but does not smell like alcohol or has passed a breath test, that officer will likely call a “Drug Recognition Expert” (DRE) which is an officer who has received additional training that allegedly enables him to identify clues of drug ingestion and even identify the type of drug that has been consumed. The DRE officer will often convince the accused to confess or submit to urine or blood testing to confirm his or her suspicions, but sometimes the trial will be based on nothing more than the officer’s opinion testimony in this questionable area of expertise. In those cases, an aggressive challenge to the scientific underpinnings of this so-called expertise is essential.
The DRE officer evaluates the suspect using a 12-point checklist conducting eye tests, checking pulse and blood pressure rates, and looking for other physical signs that an impaired driver may be under the influence of drugs in any of seven enumerated categories of drugs: depressants, stimulants, hallucinogens, phencyclidines like PCP or angel dust, narcotic analgesics, inhalants and cannabis. The DREs travel with a blood pressure monitor, thermometer, stethoscope, latex gloves and a specimen kit for collecting urine samples. They may be called upon to perform evaluations of people at the scene of a car accident or in a police station.
The notion of a 12 step evaluation for drug impairment sounds very impressive, scientific and thorough. The 12 step evaluation has been assigned the lofty title of “Drug Recognition Expert Protocol.” In reality, these 12 steps are less impressive once you review what they actually are. The 12 steps of the DRE evaluation are:
- Breath Alcohol Concentration
- Interview of the Arresting Officer
- Preliminary Examination
- Eye Examinations
- Divided Attention Tests
- Vital Signs Examinations
- Examination of pupil size, nasal and oral cavities
- Muscle Tone
- Examination of Injection Sites
- Interrogation of the Suspect
- Toxicology: Obtaining a specimen and subsequent analysis
Each step of the DRE Evaluation is completed as follows:
- The Breath Alcohol Concentration: This step often precedes the involvement of the DRE. If the seemingly impaired suspect fails the breathalyzer, no DRE will be called. If the breath alcohol concentration is very low (and therefore, not consistent with the officer’s suspicions of intoxication), the officer will request a DRE.
- Interview of the Arresting Officer: The DRE will discuss the circumstances of the arrest with the arresting officer, and will inquire as to the suspect’s condition at the time of the arrest, whether the arrestee had been involved in a traffic collision, any statements the suspect had made, whether or not the suspect had drugs in his or her possession, and any other relevant matters. While the police might characterize this step as information gathering, the DRE is in fact is ensuring that he will not be able to perform a fair and unbiased evaluation since he is being influenced by the officer who called for his assistance.
- Preliminary Examination: The DRE will make general observations of the arrestee’s condition, inquire of the arrestee as to any health problems, and conduct a pupil size and eye tracking examination. In addition, the DRE takes the first of three pulses in this step.
- Eye Examinations: The DRE conducts three separate eye movement examinations. They are: 1) Horizontal Gaze Nystagmus; 2) Vertical Gaze Nystagmus, and 3) an eye convergence examination.
- Divided Attention Tests: This step repeats some of the Field Sobriety Tests that were likely given to the suspect at the time of the arrest. The DRE administers four tests in the following order: 1) Romberg Balance Test, 2) Walk and Turn Test, 3) the One-Leg Stand Test, and 4) Finger-to-Nose Test.
- Vital Signs Examinations: The DRE takes three vital signs: 1) blood pressure, using a sphygmomanometer and stethoscope; 2) body temperature utilizing an oral thermometer; and 3) pulse (this is the second time the suspect’s pulse is taken).
- Examinations of pupil size and examination of the nasal and oral cavities: The DRE uses a “pupillometer” to estimate the arrestee’s pupil sizes in four different light levels: room light, near total darkness, indirect artificial light, and direct light. The DRE also examines the individual’s nasal and oral cavities for evidence of drug use.
- Muscle Tone: The DRE gently moves the arrestee’s arms to determine muscle tone.
- Search for Injection Sites and Taking of Pulse: The DRE examines the individual for injection sites. The suspect’s pulse is taken for a third time.
- Interrogation: The DRE interrogates the suspect.
- Opinion: The DRE forms an opinion as to drug influence, and the category(s) of drug(s) causing the impairment.
- Toxicology: Obtaining a specimen and subsequent analysis. The DRE requests consent to obtain a urine and/or blood specimen from the suspect, which is then analyzed for the presence of certain drugs by a toxicological laboratory.
Many of the 12 steps listed above are part of typical police observation and investigation. Steps 1 and 2 (“breath alcohol concentration” and “talking to the arresting officer”) consist of talking to the arresting officer about his observations and investigation, thus ensuring contextual bias by the DRE officer. These two steps involve no independent observations or evaluation by the DRE. Step 3, the “preliminary investigation” observations are then repeated in subsequent steps by the same officer under the same conditions, which does not suggest any probative value to this step. The Horizontal Gaze Nystagmus Test in Step 4 (“eye examination”) and the field sobriety exercises administered in Step 5 (“Divided Attention Tests”) were likely already administered, or could have been administered by the arresting officer. Step 10, which involves interrogation of the suspect, is also a routine police function. Requesting consent for urine or blood collection also requires no special skill or training. Step 11, “forming an opinion” is not actually a procedural step; it is the officer’s conclusion.
The few remaining steps of this evaluation (steps 6 -9) involve the recording of blood pressure, pulse, body temperature, observations of pupil size, nasal, and oral cavities, moving the suspect’s arm to observe muscle resistance, and inspecting the body for injection marks. Only medical personal should be permitted to testify as to the meaning or significance of any unusual findings. The same applies to the eye examinations done in Step 4.
If you are charged with OUI Drugs, you need a lawyer capable of mounting a pre-trial scientific challenge to the admissibility of these tests. In the event that the judge lets the evidence into evidence, I am prepared to tear down the testing and the officer’s alleged expertise.