Buford T. Justice a DRE?

The International Association of Chiefs ...

10 August 2009

The International Association of Chiefs of Police was in Little Rock over the weekend for its annual training conference.  It appears that the subject this year was “impaired” driving, which includes alcohol or drugs.

The crime of DWI (Drugs) is becoming “all the rage” among arrest-hungry cops and cities looking to justify and meet their padded, not so recession-proof budgets.  However, the vast majority of the public does not realize that they can be convicted of a DWI in Arkansas (and most other states) if the State can prove that they were intoxicated BY ANY INTOXICANT at the time of driving.

“But I wasn’t drinking!”  It doesn’t matter.  “But I was taking medicine that was prescribed by my doctor!”  It doesn’t matter.  “But it was over-the-counter.”  Drumroll…it doesn’t matter.

A person can become legally intoxicated for purposes of violating Arkansas DWI laws by ingesting “any intoxicant” to the extent that the driver’s reactions, motor skills, and judgment are substantially impaired.

It is clear that “drugged driving” is a problem.  With the Baby Boomers getting older, the problem is only going to intensify.  However, the bigger problem is the government’s solution:  the self-fulfilling prophecy known as the Drug Recognition “Expert” (“DRE”) program.

The DRE program was created by 2 Los Angeles Police Department sergeants after concluding that medical doctors were too reluctant to give an opinion about a suspect’s condition.

Another reason for its creation was the fact that a forensic test of a suspect’s blood or urine can only confirm that a suspect had a specific class of drugs in his system.  There is NO standardized, quantified level of any drug, other than alcohol, that has been scientifically determined to cause an individual to be intoxicated.  Prior to the DRE program, cops had to rely on basic field sobriety tests and the ole standby of “Well, he just looked intoxicated.”  Apparently, that method wasn’t convicting enough people.  Thus, the DRE program was born.

It should be noted that the E in DRE stands for “Expert.”  This wasn’t always so.  They used to be called “evaluators,” but that didn’t quite have the ring to it in court that “expert” does.

Somewhat ironically, the DRE program consists of 12 steps.  All 12 steps must be properly performed; otherwise, the DRE evaluation should not be admissible in court.  Although many DREs (officers certified in the DRE program are called “DREs”) would not like to admit it, the DRE student manual states that “[t]he drug influence evaluation isn’t an exact science,” and that “DREs are not infallible, and neither are laboratories.”  Drug Evaluation and Classification Training.  “The Drug Recognition Expert School,” Student Manual, 2002 Edition, PP. IV-22, 25.

The purpose of a DRE evaluation is to tie a suspect’s perceived impairment to a specific class of drugs (of which there are 7 classes).  Keep in mind that this link must be proved “beyond a reasonable doubt,” the highest burden of proof in our entire legal system.  In the State of Arkansas, a parent can have her child taken away from her based upon proof of neglect that only meets the level of “clear and convincing” evidence, a lesser standard than “beyond a reasonable doubt.”

A typical problem in a DWI (Drugs) case is that oftentimes the person is taking the drug/medicine (most often a prescribed drug) due to an ongoing illness.  Oftentimes, it is impossible to distinguish signs of a person’s illness from the known effects of the alleged drug class.

For example, our office recently handled a DWI (Drugs) case for a woman who has full-onset multiple sclerosis.  Due to the fact that Arkansas has a law that says (obviously, not in these words) that the prosecutor cannot drop a DWI case regardless of the stupidity of the cops in bringing the charges, we proceeded to trial.  At trial, the DRE testified that, in effect, the lynchpin of his opinion that she was intoxicated from the drug that she readily admitted to taking was that she had nystagmus present in her eyes.  Nystagmus is the involuntary jerking of the eyes.  What the DRE failed to even acknowledge is the fact that multiple sclerosis can ALSO cause nystagmus…along with every other “sign of intoxication” that the woman had.

The Maryland Court of Special Appeals even acknowledged the fact that multiple sclerosis can be a cause of nystagmus in the case of Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995).  Not to mention, he could have just Googled it before rendering his “expert” opinion.

So, keep in mind that at the end of the day, a DRE is a cop with roughly 9 days of classes and some in-the-field practice on some lucky citizens.


p.s.  If you watch the end of the video linked above, you’ll see a nice example of our bailout money at work…a fancy new mobile unit where the DRE cops can try their voodoo on you.