Friday, March 13, 2015

Combating Drugged Driving: Drug Recognition Experts

In February 2015, the Hagerstown Police Department in Hagerstown, Maryland, received its first Drug Recognition Expert (DRE), adding to the ranks of over 7,000 DREs already credentialed.  There are certified drug recognition experts in all fifty states and the District of Columbia, with more being trained annually.  While the number sitting alone may seem large, the figure barely registers in comparison to the 765,000 sworn law enforcement officers reported to work for approximately 18,000 state and local police agencies in 2008 (statistics for 2012 have yet to be released—another census will not be performed until 2016).  Yet, these specialized officers, having undergone intensive training, serve an important role within their departments by assisting to identify and arrest drug-impaired drivers.

The modern day DRE program originally began in 1970s Los Angeles in response to incidents where individuals were suspected of driving in an “inordinately impaired” manner, but blew alcohol breath tests below the statutory limit.  This program evolved into a standardized drug evaluation program overseen by the International Association of Chiefs of Police (IACP), and active in fifty states, the District of Columbia, and Canada.  While police officers have given expert testimony in a variety of drug-related cases[1], the primary purpose of a DRE is to evaluate whether a suspect driver is impaired by drugs other than alcohol.  This is done through a specific twelve-step DRE protocol which seeks to determine whether the suspect is impaired and the category or combination of drugs most likely causing the impairment.

The twelve-step examination is both detailed and diagnostic in nature, beginning with (1) a review of the on-scene/arresting officer’s[2] breath alcohol test.  The test continues with the DRE (2) interviewing the officer; (3) performing a preliminary examination and taking the first pulse; (4) an eye examination; (5) divided attention psychophysical tests; (6) vital sign examination and taking the second pulse; (7) dark room examinations; (8) muscle tone examination; (9) check for injection sites and taking the third pulse; (10) interviewing the subject and other observations[3]; (11) DRE forms an opinion based on a totality of the circumstances style analysis, this is also where the DRE may indicate the category of drug or drugs which may have impaired the suspect. The twelfth and final step is a toxicological examination, where the DRE “normally requests a urine, blood and/or saliva sample from the subject for a toxicology lab analysis.”

As one might expect, DREs’ qualifications or opinions may face defense challenges when offered as expert opinion testimony.  In fact, the North Carolina Indigent Defense Services has a full web page outlining DREs and the ways in which North Carolina defense attorneys can challenge DRE testimony, from challenging admissibility to limit the scope of DRE testimony—“testimony regarding the effects of drugs on the body and on impairment requires expertise in the fields of pharmacology, toxicology, and/or medicine”—to ways in which to challenge a DRE’s qualifications and the reliability of the DRE protocol.  It is worth noting that in Maryland, case law has begun to outright reject DRE expert testimony.  Maryland v. Brightful, a 2012 case out of Caroll County, the drug evaluation and classification program (DRE program) does not survive a Frye-Reed evidentiary challenge as it is not generally accepted as valid and reliable in the relevant scientific community.  This is a marked change compared to previous cases in other states which uphold DRE protocols under the Frye standard.

DREs play a notable role in combating the dangers drugged driving.  For prosecutors, the use of a DRE in an impaired driving case can make the difference between a conviction and an acquittal.  However, even though various cases have generally upheld DRE protocols and allowed for the use of DREs in criminal trials, the program and protocols are not without their challenges from the defense bar.  It should be interesting to see what happens in Maryland in light of Brightful’s departure from what seems to be the generally accepted norm.

Trevor Addie
Blog Editor, Criminal Law Practitioner

[1] David Sandler, Expert and Opinion Testimony of Law Enforcement Officers Regarding Identification of Drug Impaired Drivers, 23 Haw. L. Rev. 151, 151 (2000) (citing a few examples of cases in which police officers have given expert testimony regarding drug impairment).
[2] DREs can be called in before or after the driver is arrested for impaired driving.
[3] The DRE reads the Miranda warnings if not already done so.


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