Coming Soon to a Town Near You: An Alarming New Emphasis in Law Enforcement - the Drug Recognition “Expert”

by Patrick T. Barone

Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at: www.baronedefensefirm.com.

With the editorial assistance of Robert J. Andretz, Esq.; Case Manager; Barone Defense Firm; 280 North Old Woodward Avenue, Suite 200 Birmingham, Michigan  48009; Office:  (248) 594-4554; Mobile:  (248) 303-5777; Fax:  (248) 594-4549; E-mail:  randretz@baronedefensefirm.com or www.baronedefensefirm.com.

Alcohol has long been recognized as having a significant negative impact on highway safety.  Both the federal and state governments have spent large sums of money training officers in the detection and arrest of suspected drunk drivers.  Until recently, there has been far less focus on the apprehension and interdiction of drivers whose ability has been impaired from the consumption of drugs.  This is not to say that drugged driving has not been previously recognized as problematic.  According to the Michigan  State Police web site:

“Law enforcement officers are continually finding drugged drivers behind the wheel during traffic stops,” said Col. Kriste Kibbey Etue, director of the Michigan State Police (MSP). ”  To help address this growing issue, officers have been receiving advanced training to assist them in identifying and arresting these impaired drivers in an effort to make our roadways safer.”1

Furthermore, although Michigan has experienced a decrease in alcohol-related crashes, fatalities and arrests, it has noted an increase in drug involvement in traffic crashes and injuries.  In 2009, drugs accounted for an additional 83 injuries and 89 crashes compared to 2008.  In 2010, drug-involved fatalities increased by 29 percent with 153 motorists killed in crashes involving drugs. Some of that increase can be attributed to expanded testing requests.2

 In response to this increased awareness, emphasis is now being placed on law enforcement officers to find, arrest, prosecute, and convict drug-impaired drivers.  Already this year, fifteen officers from local and county police agencies and the Michigan State Police (MSP) have participated in the intensive three-week drug recognition course.  The class also included five Michigan prosecutors.  Upon graduating from this training the officers now carry the moniker of “Drug Recognition Expert” or DRE.

 This DRE training program was developed during the 1970s in Los Angeles.  In 1979, the drug recognition program received the official recognition of the LAPD.3  The program itself is based on a three-step process:

Step One:  Verify that the subject is impaired, and verify that the subject’s blood alcohol concentration is not consistent with the degree of impairment.

Step Two:  Determine whether the impairment is drug- or medically related (injury or illness).

Step Three:  Use proven diagnostic procedures to determine the category (or combination of categories) of drugs that is likely the cause of impairment.4

 The ostensible purpose of the program is to provide “the strongest articulable evidence” that drugs are the cause of impairment, as opposed to something else, to obtain probable cause for a driver who refuses a blood test, and to show that the drug is psychoactive (as opposed to merely present).5

 While based on a three-step process, the drug influence evaluation procedure includes the following twelve steps:

1. The breath test (machine number, time of test, test administrator, etc.)
2. DRE interview with arresting officer
3. Preliminary examination by DRE (determination whether suspect has suffered from any injury or illness or some other condition other than drugs)
4. Eye examination (horizontal gaze nystagmus, vertical nystagmus, and lack of convergence)
5. Divided attention psycho-physical tests (Romberg balance, walk-and-turn, one-leg stand and finger-to-nose)
6. Dark room examination (check for pupil dilation under three different lighting conditions: near total darkness, indirect light, and direct light)
7. Vital sign examination (pulse, blood pressure, and temperature; certain drugs elevate vital signs while others lower them)
8. Muscle tone examination (certain drugs may cause muscles to become tense while others produce flaccidity)
9. Examination for any injection sights (evidence of hypodermic needles, fresh needle marks, scars, or tracks)
10. Review of suspect statements and other observations (Miranda invocation, implied consent rights, warnings, etc.)
11. DRE opinion (suspect’s state of impairment in category or categories of drugs involved).  Note:  “The DRE must document this opinion in a formal report that specifies the basis for it.”6
12. Toxicological examination (a chemical test or urine or blood corroborate the DRE opinion into obtainable admissible scientific evidence).7

 As indicated the third step of the process, a DRE is able to use this evaluation to determine the “category or combination of categories of drugs” that are causing the impairment.  There are seven categories, which include:

1. CNS Depressants:  examples include alcohol, barbiturates, and valium;
2. CNS Stimulants:  examples include cocaine, crystal “meth,” Ritalin and amphetamines;
3. Hallucinogens:  examples include LSD, peyote, mushrooms, ecstasy (MDMA), toad licking, and nutmeg;
4. Inhalants:  examples include glue, gasoline, paint thinner, spray paint, nitrous oxide, Scotchguard, and freon;
5. Cannabis:  examples include marijuana, hashish, hash oil, thai sticks, marinol, and dronabinol;
6. Narcotic Analgesics:  examples include heroin, morphine, codeine, and synthetic opiates (e.g., demerol, methadone);
7. Phencyclidine (PCP):  examples include PCP, angel dust, dust, super kools, sherm, ketamine (special k), vetelar, and ketelar.8

 As part of the evaluation, the DRE will prepare a drug influence evaluation form or “Face Sheet” that will contain his or her observations made while or after conducting the above twelve steps.  Then, pursuant to Step 12, the blood (or urine) is then sent to the state laboratory for testing.  This twelve-step examination takes about 45 minutes to one hour to complete.9

 There are many potential problems with this DRE program, which has yet to be tested in the Michigan courts.  The first problem is the extraordinarily broad definition of the word drug:  “any substance, that, when taken into the human body, can impair the ability of the person to operate a motor vehicle safely.”10  Not only does this definition include medications lawfully prescribed and lawfully taken, it also includes many things not commonly thought of as drugs.  In this regard, the potential application of the law is almost certainly overbroad.

 Another problem is the importance—if not infallibility—with which the DRE officer is trained to view himself.  For example, what happens if the DRE suspects that drugs are causing impairment but the toxicological examination does not confirm the presence of drugs?  While the manual does give lip service to the possibility that the DRE was simply wrong, the manual also suggests that “the lab’s instruments, personnel and analytical methods are not infallible.  There are certain drugs that a particular laboratory simply may not test for, and there are others that can’t be ‘seen’ unless they are present at fairly high concentrations.”11  Based on this, it is easy to imagine the scenario where the DRE arrests your client for OWI – drugs, the prosecutor issues a warrant, and the blood comes back negative.  Case dismissed?  Not necessarily; maybe the lab was wrong and the DRE was right!  Faced with this situation, prosecutors in some counties would rather gear up for trial than dismiss or substantially reduce the charge.

 An obvious and important overriding question relates to the “scientific” underpinnings of the DRE twelve-step evaluation.  This question was recently addressed in a Maryland trial court.12  The court observed that “although the DRE program is utilized in 45 states, the presence of the DRE program does not equate to widespread judicial acceptance by appellate courts nor acceptance in the medical community.”13  After several days of testimony, given by several “disinterested” medical experts as well as police officers trained in the DRE methods, the Maryland court ruled:

Under the Frye-Reed standard[,] the drug recognition protocol is a new and novel technique because it purports to create a protocol for police officers to render a medical diagnosis.  When the relevant scientific community is properly defined to include disinterested medical professionals it is clear that the drug recognition protocol is not generally accepted as reliable.14

 One of the defense experts was Dr. Jeffrey Janofsky, an associate professor of psychiatry at Johns Hopkins University School of Medicine.  He testified that “when he was asked to review the DRE program in 1992 he found that ‘there was actually not a single study regarding the DRE published in . . . peer review scientific literature.’”15  He further testified that “if the DRE is allowed to testify to a reasonable degree of a police officer’s certainty that based on this matrix the person is intoxicated, the Court will be receiving inaccurate and false evidence and will be convicting the wrong people.”16

 Another defense expert was Dr. Francis Gengo, a clinical pharmacologist with postdoctoral fellowship training in pharmacokinetics and pharmacodynamics.  He testified that, in his opinion, there is no data to demonstrate that DREs can discern medical disease-induced problems from drug-induced impairment, and that, in fact, DREs would not be able to do this.17  Also, that while a DRE is using well-established principles such as blood pressure, pulse, and eye examinations, they are doing so in a novel and unreliable way.18

 Dr. Neal Adams was another defense expert.  Dr. Adams is an ophthalmologist who was trained at Johns Hopkins University’s Wilmer Eye Institute.  He testified that he does not “agree with the DRE protocol in the way it is being used.”19  Dr. Adams was critical of the manner in which nystagmus was being administered and interpreted and indicated that the DRE matrix “doesn’t tell us the relative weights of what is more important and what to evaluate in one manner versus a different manner.  We are looking at almost a robotic matrix.”20  He also testified that “there are many medical conditions that can cause HGN including the flu, eye strain, glaucoma[,]and heredity, as well as substances such as caffeine and aspirin[,] and it is very difficult even for physicians to distinguish between medical conditions and alcohol or drugs.”21

 There is little doubt that Michigan practitioners will begin seeing DRE arrests in the very near future.  Appropriately defending these clients will, at a minimum, require a vivid understanding of the DRE methods, the science or lack of science, the law applicable to HGN, and, more generally, the legal development of the Daubert22 standard in Michigan.   If the defense community is able to choose the right case and band together to share resources, then it is entirely possible that Michigan would follow Maryland in finding that the DRE does not meet the applicable evidentiary foundational requirement.  If this opportunity is missed, DRE opinion testimony will be admissible and, in the words of Dr. Janofsky, people will be wrongfully convicted based on misleading and inaccurate testimony.

Endnotes

1.   http://www.michigan.gov/msp/0,1607,7-123-1586-259710--,00.html
2.   2010 Drunk Driving Audit, http://www.michigan.gov/documents/msp/2010_audit_for_web_deployment_357302_7.pdf
3.  The Drug Recognition Expert School Student Manual, Jan. 2010 Edition, Session III, p. 3.
4.  Id.
5.  Id. at 4.
6.  Id at 40.
7.  Barone, Defending Drinking Drivers, James Publishing, Rev. 27, 4/11, p. 1-85.
8.  Id. at 1-84.
9.  See Maryland v. Consol. Cases, unpublished opinion of the Carroll Co., Md. Circuit Court, issued Mar 5, 2012 (Docket No. K-10-20459), p. 5.
10.  The Drug Recognition Expert School Student Manual, Jan. 2010 Edition, Glossary of Terms, p. 16.
11.  Id. Session IV, p. 30.
12.  Maryland v. Consol. Cases, unpublished opinion of the Carroll Co., Md. Circuit Court, issued Mar. 5, 2012 (Docket No. K-10-20459).
13.  Id. at 5.
14.  Id. at 34.
15.  Id. at 17.
16.  Id. at 20.
17.  Id. at 13.
18.  Id.
19.  Id. at 15.
20.  Id.
21.  Id. at  16-17.
22.  Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).