Drug Offenses

In New Hanover, Pender and Brunswick counties there is a new trend arising within the agencies of police officers that refer to themselves “drug recognition experts” also called “DRE experts”. The term itself is relatively new, as in the past the officers were previously called drug recognition evaluators or drug recognition technicians. Within the North Carolina court system this term is now used to refer to police officers that have successfully completed a drug evaluation and classification training. This is a new concept and there is typically only one DRE expert on each police force.

The National Highway Traffic Safety Commission (NHTSA), defines a drug as “any substance, which, when taken into the human body, can impair the ability of the person to operate a vehicle safely.” Even though cough medicine is a legal substance, a person can still be convicted of a DWI. Also, a person can be convicted of DWI after huffing paint or doing whip its.

NHTSA publishes a DRE manual which encompasses a “3- Step DRE Process”. In the 3-Step DRE process. The 3- Step DRE Process has three phases:

Phase 1. Verify that the suspect is impaired and verify that the suspects BAC is inconsistent with the degree of impairment evident.

Phase 2. Determine whether the impairment is drug or medical related.

Phase 3. Use proven diagnostic procedures to determine the category of drug that is the likely source of impairment.

Though at first glance this sounds like official protocol, when each step is broken down the flaws with this system become apparent. First, an officer must correlate the the consistency of the Standard Field Sobriety Tests against the BAC. The issues that arise with this are that studies regarding the SFSTs are not validified and even if they were, each officer on a police force may not have training capacity to administer each test accurately.

Now, say for example an officer administers the field sobriety tests and determines that he believes the person to be impaired, then administers a breath test which registers as a level of impairment under the legal limit, it is then up to the police officer to differentiate between medical issues and drug related issues. Obviously roadside conditions would not be ideal for any medical examination, especially one that is performed by a law enforcement official without a medical degree.

Lastly, once the first two conditions have supposedly been met, the officer must then use “proven” diagnostic procedures to determine the category of drug influence the suspect is under. Though some of the diagnostic procedures are legitimate, others leave room for doubt. During training courses for DRE “experts” alcohol workshops are used, in which individuals volunteer to be under the influence of alcohol so the police officers can see first hand the effect of alcohol and these tests. However, these volunteers are not dosed with any drugs so that the evaluating police officer teaching the course can observe first hand how the police officer responds to individuals that are dosed with drugs. Therefore, there is no classroom training in which Phase 2 and Phase 3 can be evaluated before obtaining certification as a “DRE expert.”

The DRE manual states to become an expert that students “must pass the knowledge exam with a score of 80% or greater.” Only scoring 80% labels one as an expert!

The DRE manual recognizes there are only a limited amount of studies that have been conducted that suggest drug impaired driving is a problem in America. The problem that the studies have found is that cops were less successful in identifying volunteers who received weak drug doses. These studies have never been peer reviewed in the medical community.

All DRE officers must fill out a drug influence report. There is a 12-step drug influence evaluation procedure.

The first step is that the officer determines the subject’s (BAC) blood alcohol concentration. From this the officer can determine if alcohol is the sole cause of impairment or if the subject could be under the influence of the drugs other than alcohol.

The second step is for the DRE officer to interview the arresting officer. The DRE officer asks the arresting officer if they overheard the suspect talking about drugs or found drug paraphernalia.

The third step is the preliminary examination in which the DRE must wear gloves from this portion of the examination on. During this process, the officer asks “a structured series of questions, specific observations, and simple tests.” There are no specific directions or standardization with this section, therefore leaving the contents of the section up to the discretion of the officer.

The fourth step is the examination of the eyes. The officer gives 3 tests; the horizontal gaze nystagmus, verbal gaze nystagmus, and a check for lack of convergence. There are many causes of nystagmus. Various drug categories have an effect on the eyes. The manual states that the normal pupil size is 3.0 to 6.5 cm.

During the fifth step, the DRE officer gives divided attention psychophysical tests. The DRE officer gives the walk and turn and the one leg stand that have only been validated by NHTSA for alcohol-related purposes. Also, the DRE officer gives the Romberg Balance and finger-to-nose test that are not NHTSA validated tests.

The sixth step is the step in which the DRE officer checks the vital signs of the suspect. The officer checks the suspect’s blood pressure, pulse rate, and temperature. There are all kinds of causes of neurological impairment other than drugs and alcohol. However police officers have come up with this new and novel approach.

The seventh step is the DRE officer’s examination of the suspect in a dark room. The DRE officer checks the size of the suspect’s pupils, the reaction of the pupils to light, and evidence of ingestion of drugs by nose or mouth. Certain categories of drugs affect the eyes.

It is important that the pupillometer that the officer uses is not a photocopied pupillometer because the size of the dots could be smaller. In the dark room, there is supposed to be another officer for safety reasons. The darkness of the room; presence of officers; and not knowing what is going on can cause anxiousness, the suspect’s heart rate to increase, and perspiration. These signs could easily be mistaken for the effect of drugs.

The eighth step involves the DRE officer’s evaluation of the suspects muscle tone. Currently, there is no standard for determination as to whether a person’s muscle tone is flaccid, normal or rigid. Some drugs cause the muscles to be rigid and some cause the muscles to become flaccid. However, with no normal standard the officer has nothing to compare the effects of drug related flaccidity or rigidness against. Normal activities such as exercise may affect the muscle tone in a natural way.

In the ninth step the DRE officer checks for injection sites, there are clear issues with this immediately. The difference between a recent and an older injection site may not necessarily be clear, and there is a chance that something which appears to be an injection site may just be a normal skin abrasion.

The tenth step the DRE agent interrogates takes statements and takes into account their observation. The issues that may arise within this step is that while the suspect may seem to be under the influence of drugs, it may be to something they have admitted to ingesting and entirely inconsistent to what the officer is accusing them of ingesting.

In the eleventh step the evaluator uses the first ten steps to reach a conclusion. This conclusion however, may be a broad conclusion that ignores the actual symptoms. Additionally, the officer may not have completed every step in the evaluation.

Lastly, is the toxicological examination and this is what is used to confirm the DRE agents opinion. It is helpful for your attorney to know their success rate.