June 29, 2013

Drug Recognition Experts' Judgment Not an Exact Science

Police agencies in Southern Ohio are buzzing with anticipation at having for the first-time the opportunity to have trained drug recognition experts (DRE's) on their law enforcement teams.
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Like Alabama, Ohio became one of the last states to introduce the use of DRE's. Alabama was the 44th in 2008 and Ohio was the 48th in 2010.

Our Birmingham criminal defense lawyers know that despite the moniker, DRE's are actually not what we would consider "experts," and the fact that they are titled as such is misleading.

To understand where we are coming from on this, you need to understand the background of the program.

First, it's understandable that states have a vested interest in reducing the number of injuries and deaths caused by intoxicated drivers. The question from a legal perspective then becomes, "What constitutes as intoxicated?" With alcohol, the answer is more cut and dry. If you register a blood-alcohol content of 0.08 percent or higher, you can be arrested for DUI. Even if you are lower than this, you can be arrested, though prosecutors will have a harder time proving the case. Other means of evidence collection, such as field sobriety tests and officer observations, may also be used to determine a level of intoxication, though it's widely known that such methods aren't as strong as a clear-cut BAC reading of 0.08 percent or higher.

Of course, alcohol isn't the only intoxicating substance. There has particularly been a proliferation in recent years of prescription drug use. Even individuals with a valid prescription can be arrested for DUI - if officers can prove that the effect of that drug significantly impaired that person's ability to safely operate a vehicle. However, determining that is the tricky part. Even though a blood or urine test might reveal the presence of certain drugs in one's system, it doesn't necessarily indicate intoxication.

That's where DRE's come in. In Alabama, state troopers had the first DREs, though other agencies have since invested in the additional training required for officers to become certified. DRE's use a standard, 12-step process to determine if someone is under the influence of drug, and if so, what kind of substances.

Of course, the reality is that different drugs affect different people in a myriad of ways. The 12-step process includes:
1. A breath alcohol test.
2. An interview of the arresting officer.
3. A preliminary examination and a taking of the pulse.
4. An eye examination.
5. Divided attention psychophysical tests.
6. Vital signs and second pulse reading.
7. Dark room examinations.
8. Muscle tone examination.
9. Check for injection sites and third pulse.
10. Statements of the suspect and other observations.
11. Analysis and opinions of the evaluator.
12. Toxicological examination.

Right off the bat, just from looking at the process, there is evidence of potential bias. The very second step involves interviewing the arresting officer. That removes the element of complete objectivity. For example, if the officer tells the DRE before the exam that he found a bag of cocaine in the car, how can we be sure that the results aren't colored by that finding?

We can't.

As such, these "expert" findings should be critically analyzed and challenged by an experienced defense attorney.

If you have been arrested for DUI in Birmingham, call Defense Lawyer Steven Eversole at (866) 831-5292.

Additional Resources:
Going beyond sobriety tests, officers learning to gauge drug use, May 24, 2013, By Allison Manning, The Columbus Dispatch

More Blog Entries:
Alabama Underage DUI: Young Drivers Held to Tougher Standard, May 29, 2013, Birmingham Drunk Driving Defense Lawyer Blog