Drug Recognition Expert Defense
A Drug Recognition Expert (DRE) is a police officer who indicates they can recognize whether someone is on drugs, what kind of drugs they are on, and whether their ability to drive has been impaired. The theory of the DRE is that they claim to be able to determine whether someone is under the influence of drugs through a visual evaluation. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 19.
DREs frequently administer their tests when someone is arrested for drunk driving, but passes a breath test. The DRE's testimony may provide better evidence for the prosecution than toxicology reports. Blood tests may not measure the quantity of drugs taken and, even if they do, may not show a level high enough to prove impairment. Urine tests do not accurately pinpoint when the drugs were ingested and may not show the quantity. Therefore blood and urine tests alone may not be sufficient to prove the person was affected by drugs when they were driving. The DRE argues they can provide the link between the toxicology report and the Driving Under the Influence charge. The DRE offers testimony that the defendant failed the physical tests administered by the DRE, showing that the defendant may be impaired by the drugs in his system. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20. The DRE advises that their examination of the suspect is broken into 5 parts: 1. Coordination tests. The suspect must perform the "walk and turn," "one leg stand," "finger to nose," and "Romberg balance" test (where he must estimate when 30 seconds have passed while standing with his head tilted back and his eyes closed).
2. Eye tests. The DRE checks the suspect's pupil size under various lighting conditions. He checks for "horizontal gaze nystagmus" where the eyes twitch when looking off to the side and "vertical nystagmus" where the eyes twitch when looking up. The DRE also checks to see if the eyes cross normally when looking down at the nose.
3. Vital signs. The DRE measures the suspect's pulse, temperature and blood pressure.
4. Muscle tone. The DRE feels the suspects arm muscles to see if the are loose and rubbery or tense.
5. Visual inspection. The DRE inspects the suspects mouth and nose for signs of drug ingestion, the presence of drug debris and discoloration. The DRE checks the suspect's arms for needle marks. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.
The DRE determines whether the results of the exam performed on the suspect match symptoms associated with 7 drug classes. The drug classes used are central nervous system (CNS) depressants, CNS stimulants, hallucinogens, phencyclidine, narcotic analgesics, inhalants, and cannabis. Journal of Analytical Toxicology, "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 468. For example, a person on a depressant should have normal pupils, but twitching eyes on the nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and slurred speech. Persons on cannabis should have dilated pupils, no eye twitching, a high pulse rate and blood pressure, their eyes may not cross normally when they look down their nose, and they may have disorientation. The DRE also interviews the arresting officer, reviews the breathalyzer results and asks the suspect if he has been using drugs. Finally, the DRE concludes whether the suspect is behaviorally impaired, if the impairment is drug-related, and the drug class or combination of classes likely to be causing the impairment. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.
Drug Recognition Experts are Not Recognized by New Jersey Courts There is no decision from the New Jersey Supreme Court recognizing the reliability of DRE testimony as proof of driving under the influence. The written opinions which permit the admission of DRE testimony either say the evidence is "non-scientific" or do not address this issue. However, the recent U.S. Supreme Court case, Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999), extends the Daubert screening test for expert testimony to "non-scientific" testimony. Therefore, if the N.J. Supreme Court adopts Kumho, the DRE's testimony would not qualify as reliable evidence using the Daubert test. See Lawyers Weekly USA ,
"Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.
Generally, the party offering results of a scientific test as evidence is required to show that the scientific technique has gained general acceptance within the scientific community. Romano v. Kimmelman, 96 N.J. 66 (1984); State v. Kelly, 97 N.J. 178 (1984); State v. Spann, 130 N.J. 484 (1993). There are three ways to show general acceptance within the scientific community of a particular procedure. (1) Testimony of knowledgeable experts. (2) Authoritative scientific literature. (3) Persuasive judicial decision. Windmere, Inc. v. International Ins. Co., 105 N.J. 373 (1987). A proponent of scientific evidence must show that the procedure or experiments are generally accepted in their field. Frye v. United States, 293 F. 1013 (D.C. Cir., 1923).
In pre-trial motions and at trial, defense lawyers can challenge the accuracy of the evaluation and the DRE's qualifications to perform the tests. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. Laboratory studies were done in 1996 and 1998. The 1996 studies were undertaken to determine the validity of the variables of the Drug Evaluation and Classification (DEC) evaluation in predicting whether research volunteers had been administered ethanol, cocaine or marijuana and to determine the accuracy of DREs in detecting whether subjects had been dosed with ethanol, cocaine, or marijuana. Using discriminant function analysis, it was found that 17-28 variables of the DEC evaluation predicted the presence or absence of each of the three drugs (ethanol, cocaine and marijuana) with a high degree of sensitivity and specificity and low rates of false-positive and false-negative errors. The five best predictive variables were nearly as accurate as the entire subsets of 17-28 variables. When DREs concluded subjects were impaired by ethanol or drugs or both, their predictions were consistent with toxicological analysis in 51% of cases. When ethanol-only decisions, which were guaranteed to be consistent with toxicology, were excluded, DREs' predictions were consistent in 44% of cases. Journal of Analytical Toxicology, "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 475. This study provides a list of the symptoms that were found to be the best predictors of impairment by a particular class of drug. Journal of Analytical Toxicology, "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 470, 472, 474. If these symptoms are not consistent with those found present in the client on the DRE report, this may call into question the validity of the DRE's conclusion. Challenges to the DRE Aside from challenging the accuracy of the DEC, the defense attorney can challenge the DRE's qualifications. It may be argued that the DRE is not a medical doctor and has only had a nine day course and is therefore not qualified to make a subjective evaluation of the suspect's physiological symptoms. A lawyer can inquire into what training the DRE has been given in distinguishing the effects of drugs from those of other medical conditions. It should be pointed out that only one and a half pages of the 570 page DRE training manual covers medical conditions that can be confused with drug impairment. The defense attorney should get the DRE's training history to see how well he did in the course and what continued training he has had. The attorney should also try to find out what the DRE's track record is by requesting a copy of the running log which DREs are supposed to keep. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. The defense attorney can also try to explain the suspect's symptoms. For example, high blood pressure, high pulse rate and muscle rigidity can be caused by the stress of an arrest. Other symptoms may be caused by mental conditions such as attention deficit disorder or mania or delirium, or a medical condition such as diabetes, hypertension or an abnormal movement disorder. There are many natural causes for nystagmus. In cases involving accidents, symptoms may be due to a concussion. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. By reading the DRE manual, the defense should be able to find potential mistakes made by the DRE while conducting the test. The manual warns that any deviation from the protocol affects the conclusion. So if the DRE does not administer the evaluation under the conditions recommended by the manual, this presents the defense with a good argument that the results are not reliable. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. Other possible arguments may emerge by comparing the DRE's report with the notes of the arresting officer. There may be inconsistencies. Another potential argument is that, even if the DRE correctly determines that the suspect was affected by drugs, that does not necessarily mean the suspect's driving ability was impaired. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21.
For more information, see Lawyers Weekly USA dated September 20, 1999. Copies of the above referenced 1996 and 1998 studies are available by fax from Lawyers Weekly USA. The 1996 study is "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana," Lawyers Weekly USA No. 9916532 (16 pages). The 1998 study is "Laboratory Validation Study of Drug Evaluation and Classification Program: Alprazolam, d-Amphetamine, Codeine, and Marijuana," Lawyers Weekly USA No. 9916533 (12 pages).
GLOSSARY OF TERMS
alcohol gaze nystagmus (AGN) - Gaze nystagmus caused by the effects of alcohol upon the nervous system.
caloric nystagmus - A vestibular system nystagmus caused by differences in temperature between the ears, e.g., one ear is irrigated with warm water and the other irrigated with cold water.
epileptic nystagmus - Nystagmus evident during an epileptic seizure.
field sobriety test (FST) - Any number of tests used by law enforcement officers, usually on the roadside, to determine whether a driver is impaired. Most FSTs test balance, coordination and the ability of the driver to divide his or her attention among several tasks as once. Other tests, such as the horizontal gaze nystagmus test, are used to measure a subject's impairment level.
fixation - ability of the eye to focus on one point.
gaze nystagmus - Nystagmus that occurs when the eyes gaze or fixate upon an object or image. Usually caused by a disruption of the nervous system.
horizontal gaze nystagmus (HGN) - Gaze nystagmus that occurs when the eyes gaze or move to the side along a horizontal plane.
jerk nystagmus - Nystagmus where the eye drifts slowly away from a point of focus and then quickly corrects itself with a saccadic movement back to the point of focus.
National Highway Traffic Safety Administration (NHTSA) - The agency within the United States Department of Transportation that administers traffic safety programs. NHTSA's duties include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery.
natural nystagmus - Nystagmus that occurs without any apparent physiological, vestibular, or neurological disturbance. Natural nystagmus occurs in approximately 2%-4% of the population.
neurological nystagmus - Nystagmus caused by some disturbance in the nervous system.
nystagmus - An involuntary bouncing or jerking of the eye caused by any number of vestibular, neurological or physiological disturbances.
oculomotor - Movement of the eyeball.
one-leg-stand (OLS) test - One of the three tests that make up the standardized field sobriety test battery. This test requires a subject to stand on one leg, look at his or her foot and count out loud to thirty. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance for thirty seconds. [post-publication note (August 1999), sentence should read: "...count out loud until told to stop."]
optokinetic nystagmus - A nystagmus evident when an object that the eye fixates upon moves quickly out of sight or passes quickly through the field of vision, such as occurs when a subject watches utility poles pass by while in a moving car. Optokinetic nystagmus is also caused by watching alternating moving images, such as black and white spokes on a spinning wheel.
oscillate - to move back and forth at a constant rate between two points
pathological disorder - Disruptions of the normal functions of organs of the body due to disease, illness, or damage.
pendular nystagmus - Nystagmus where the eye oscillates or swings equally in two directions.
physiological nystagmus - A nystagmus that occurs so that light entering the eye will continually fall on non-fatigued cells on the retina. Physiological nystagmus is so slight that it cannot be detected without the aid of instruments and it occurs in everyone.
positional alcohol nystagmus (PAN) - Positional nystagmus when the foreign fluid is alcohol.
PAN I - The alcohol concentration is higher in the blood than in the vestibular system.
PAN II - The alcohol concentration is lower in the blood than in the vestibular system.
positional nystagmus - Nystagmus that occurs when a foreign fluid is in unequal concentrations between the blood and the fluid in the semi-circular canals of the vestibular system.
post-rotational nystagmus - Nystagmus caused by disturbances in the vestibular system fluid when a person spins around. Post-rotational nystagmus lasts for only a few seconds after a person stops spinning.
resting nystagmus - Nystagmus that occurs as the eye are looking straight ahead.
rotational nystagmus - Nystagmus caused by disturbances in the vestibular system fluid when a person spins around. Rotational nystagmus occurs while the person is spinning.
saccadic - Movement of the eye from one fixation point to another.
smooth pursuit - The eye's course as it tracks a moving image.
Southern California Research Institute (SCRI) - A research organization that conducted the first two research studies that eventually produced the standardized field sobriety test battery. SCRI has conducted subsequent field sobriety test validation studies as well as drug recognition evaluation studies.
standardized field sobriety test (SFST) battery - A group of tests selected as the best field sobriety tests to increase the ability of law enforcement officers to detect driver impairment. The results of this battery, usually administered along the roadside, contribute extensively to a law enforcement officer's decision to arrest a person for impaired driving.
walk-and-turn (WAT) test - One of the three tests that make up the standardized field sobriety battery. This test requires a person to take nine heel to toe steps down a straight line, turn and take nine heel to toe steps back up the line. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance during the instruction stage and walking stage.
vertical nystagmus - nystagmus that occurs when the eyes gaze or move upward along a vertical plane.
vestibular system - The system of fluid-filled canals located in the inner ear that assists in balance, coordination and orientation.
vestibular system nystagmus - Nystagmus caused by a disturbance in the vestibular system.