How credible is a Drug Recognition Expert’s (DRE) testimony?

Police officers in the State of NJ have ways of identifying when a driver is operating a vehicle while under the influence of alcohol. Whether it is through a breath, blood, or urine test, police are generally able to determine when a driver has been drinking and the driver’s blood alcohol level. This typically makes convicting drunk drivers a little easier to do.

When it comes to non-alcoholic substances, police officers often have a more difficult time identifying when a motorist is driving while intoxicated and must rely on certain training and information they have acquired to base their decision on whether a driver is violating the law. One form of training certain officers receive to help them decide if a driver is is impaired due to a non-alcoholic substance is becoming a “drug recognition expert” (DRE).

What is a DRE?

A drug recognition expert, also referred to as a drug recognition evaluator, “is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol. The International Association of Chiefs of Police (IACP) coordinates the International Drug Evaluation and Classification (DEC) Program with support from the National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation” and provides this training to certain officers.

The DRE program originated in the early 1970s after two Los Angeles Police Department officers “noticed that many of the individuals arrested for driving under the influence had very low or zero alcohol concentrations.” Because the officers had suspected that these drivers had been under the influence of drugs “but lacked the knowledge and skills to support their suspicions,” they collaborated with other professionals to create the program. The program teaches officers a “simple, standardized procedure for recognizing drug influence and impairment.”

How extensive is the training officers must undergo to become a DRE?

The DRE protocol “is a standardized and systematic method of examining a Driving Under the Influence of Drugs (DUID) suspect” that is used to determine the following:

• “Whether or not the suspect is impaired” and if so;
• “Whether the impairment relates to drugs or a medical condition.” If it does relate to drugs, then;
• “What category or combination of categories of drugs are the likely cause of the impairment.”

The IACP says that “the process is systematic because it is based on a complete set of observable signs and symptoms that are known to be reliable indicators of drug impairment.” When assessing a DUID suspect, officers are taught to utilize a 12-step process.”

The 12-step process is as follows:

• A breath alcohol test is administered. If a suspect’s breath alcohol concentration (BrAC) does not indicate he/she has been drinking but the officer suspects they are intoxicated, then the officer shall request a DRE evaluation.
• The DRE interviews the arresting officer, given the arresting officer is not a DRE. The DRE will review the suspect’s BAC results and discuss the circumstances surrounding the arrest with the officer. The DRE will gather information pertaining to the subject’s behavior, appearance, and driving.
• Preliminary Examination and First Pulse. “The DRE conducts a preliminary examination, in large part, to ascertain whether the subject may be suffering from an injury or other condition unrelated to drugs.” The DRE will:
• Follow up with some questions about the “subject’s health, recent ingestion of food, alcohol, and drugs, including prescribed medications.”
• Observe the driver’s “attitude, coordination, speech, breath, and face” and “determine if the subject’s pupils are of equal size and if the subject’s eyes can follow a moving stimulus and track equally.”
• “Look for horizontal gaze nystagmus (HGN) and take the subject’s pulse for the first of three times.”
• An eye exam will be conducted. The DRE will conduct an eye exam that looks for HGN.
• Divided Attention Psychophysical Tests. “The DRE administers four psychophysical tests: the Modified Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose test.”
• Vital Signs and Second Pulse. The DRE will then take the subject’s blood pressure, temperature, and pulse.
• Dark Room Examinations. The DRE will examine the size of the subject’s pupils using a pupilometer.
• Examination for Muscle Tone. The DRE will then examine the subject’s muscle tone and look to see if the muscles have become more rigid. The IACP says that this often happens when a certain category of drugs has been taken.
• Check for Injection Sites and Third Pulse.
• Subject’s Statements and Other Observations. The DRE typically reads Miranda, if not done so previously, and asks the subject a series of questions regarding the subject’s drug use.
• Analysis and Opinions of the Evaluator. Based on the information gathered in the previous steps, the DRE shall form an opinion as to whether or not the suspect is impaired.
• Toxicological Examination. “The toxicological examination is a chemical test or tests that provide additional scientific, admissible evidence to support the DRE’s opinion.”

Now, the IACP says that the “training encompasses approximately 13 and 1⁄2 hours of actual instruction” which is spread out over two full days of training.

NJ Supreme Court Issues Order that Questions Whether a DREs Testimony is Scientifically Credible

The New Jersey Supreme Court recently issued an order for a hearing on whether a Drug Recognition Expert’s (DRE) testimony is scientifically credible. Although a DRE must go through training before becoming certified, the fact is, their decision to charge an individual with DWI due to a non-alcoholic substance is ultimately based upon their opinion. And unfortunately, it has been revealed in the past that some officers have displayed biased behavior or have made arrests without adequate evidence to do so. Although the hearing is still in the preliminary stages, if a positive outcome is reached, it could make it more difficult for the state to convict motorists of driving while intoxicated due to non-alcohol substances.

What should I do if I was charged with DWI due to a non-alcoholic substance in New Jersey?

It would be in your best interest to contact New Jersey DWI attorney Eric M. Mark to find out if his legal representation is needed. Because the State of NJ looks to prosecute drunk and drugged drivers harshly, it would be wise for you to retain legal counsel to ensure your rights and freedom are protected.