Driving Under the Influence of Drugs

• Author: Deandra M. Grant/Kimberly Griffin Tucker
• Pages: 443-490

9-1

CHAPTER 9

DRIVING UNDER THE

INFLUENCE OF DRUGS

I. General Points

§9:01 Overview of the Drug Evaluation and Classification Program

§9:02 The DEC/DRE Drug Evaluation Process

§9:03 The 2005 Walden Study Regarding Effectiveness of DRE Evaluations

§9:04 Other DRE “Studies”

§9:05 Contact Information Regarding the DEC Program

II. The 12 Steps of the Drug Evaluation Process

§9:10 Importance of the Steps

§9:11 Step 1: The Breath Alcohol Test

§9:12 Step 2: The Interview of the Arresting Officer

§9:13 Step 3: The Preliminary Examination

§9:14 Step 4: Examinations of the Eyes

§9:15 Step 5: Divided Attention Psychophysical Tests

§9:16 Step 6: Examination of Vital Signs

§9:17 Step 7: Dark Room Examinations

§9:18 Step 8: Examination for Muscle Tone

§9:19 Step 9: Examination for Injection Sites

§9:20 Step 10: Suspect’s Statements and Other Observations

§9:21 Step 11: Opinions of the Evaluator

§9:22 Step 12: The Toxicological Examination

III. DRE Drug Categories

§9:30 The Seven Categories

§9:31 Central Nervous System (CNS) Depressants

§9:32 Central Nervous System Stimulants

§9:33 Hallucinogens

§9:34 Dissociative Anesthetics

§9:35 Narcotic Analgesics

§9:36 Inhalants

§9:37 Cannabis

§9:38 2015 Virginia Beach Study

IV. Drug Recognition Experts

§9:50 Training Curriculum

§9:51 Certification of Drug Recognition Experts

Texas DWI Manual 9-2

§9:52 Recertification of Drug Recognition Experts

§9:53 Challenging DRE Testimony

§9:54 Sample Cross-Examination of DRE

V. Case Law

A. Overview

§9:60 Qualification of DREs as Experts

§9:61 DRE Testimony on Effects of Mixing Drugs with Alcohol

§9:62 DRE Testimony on Intoxication by a Particular Substance

B. Case Summaries

§9:70 1st District

§9:71 3rd District

§9:72 4th District

§9:73 5th District

§9:74 7th District

§9:75 9th District

§9:76 11th District

§9:77 12th District

§9:78 14th District

VI. Reference List

VII. Forms and Samples

9-1 DRE Discovery Motion

9-2 Order on DRE Discovery Motion

9-3 Sample DRE Drug Matrix

9-4 Sample Rolling Log

9-5 DRE Evaluation Form

9-3 DrivingUndertheInluenceofDrugs §9:02

I. General Points

§9:01 Overview of the Drug Evaluation and Classification Program

The Drug Evaluation and Classification (DEC) Program, which is synonymous with the Drug Recognition

Expert (DRE) Program, is a law enforcement program focusing on the detection, identification, and prosecution

of suspected drug-impaired drivers. The program is managed and coordinated by the International Association

of Chiefs of Police (I.A.C.P.), with support from the National Highway Traffic Safety Administration (NHTSA)

and the U.S. Department of Transportation.

In the early 1970s, several associated members of the Los Angeles Police Department (LAPD) began to

notice trends in persons that they arrested for driving under the influence of alcohol. [Burns, Page, & Leikin,

2003; Compton, 1986; Page, 2003.] Although the individuals they arrested were highly impaired in their ability

to perform simple divided attention tests, they registered low blood alcohol concentrations (BACs) when

chemically tested. In short, the level of impairment was not consistent with the level of alcohol in their body

based on their BAC. As a result of these findings, the officers realized they were dealing with impairing

substances other than alcohol and recognized that they did not have the necessary skills or training to support

their position.

In the mid-1970s, two LAPD sergeants, Richard Studdard and Len Leeds, collaborated with numerous

medical professionals to develop a simple set of standards and procedures for evaluating and identifying drug

influence and impairment. Out of this effort came the beginnings of the Drug Evaluation and Classification

Program (DECP).

In the early 1980s, the National Highway Traffic Safety Administration (NHTSA) took an active interest in

the work Studdard and Leeds were conducting and began work with the LAPD to standardize a protocol for a

systematic approach to evaluating individuals suspected of being impaired by drugs other than alcohol. With

NHTSA playing a leadership role in developing and implementing the scientific validation of the evaluation

process, a training program was developed. [Kwasnoski, Partridge, & Stephen, 2000; NHTSA, 2002a.]

In 1987, NHTSA started the DECP pilot in the states of Colorado, Arizona, New York, and Virginia. In 1988,

Utah, California, and Indiana were added. Today, the DEC/DRE Program is used in approximately 40 states and

the District of Columbia. In addition to these 40 states, Canada and New Zealand also participate in the DEC

Program.

§9:02 The DEC/DRE Drug Evaluation Process

A DRE conducts a standardized examination of an individual who has been arrested for DWI, but where

alcohol is not believed to be the impairing substance. Based on the results of the DRE drug evaluation,

which includes a formal interrogation and a blood or urine test, the DRE officer forms an “expert” opinion

on the following:

• Is the suspect impaired? If so, is the impairment due to something other than alcohol?

• If the DRE believes that the person is impaired, is the impairment due to an injury, illness, or other

medical complication, or is it drug-related?

• If the DRE believes that the impairment is due to drugs, which category or combination of

categories of drugs is the most likely source of the impairment?

In general, the DRE program purports to establish a scientific, standardized approach to the obvious

guesswork of determining if a motorist is under the influence of a drug, as opposed to alcohol, and if so,

what the drug or category of drugs is. Although the government asserts that a DRE officer is 70-90 percent

accurate at determining what category of drug is causing impairment in a suspect, law enforcement

officials readily concede that forming an expert opinion when more than one category of drugs has been

ingested (poly-drug use) is far more difficult a task.

Although the initial arrest for DWI occurs on the roadside, a DRE evaluation must be conducted in a

controlled environment, typically at a police station or other location where suspected drivers are taken

after being arrested. Pursuant to the standardized protocol, the drug evaluation is not to be done at the

roadside, and is typically a post-arrest investigation. In some cases, the DRE subject will be a person who

was arrested by the DRE officer; however, in many cases, the DRE will be requested to administer the DRE

evaluation after the driver has been arrested by another officer for suspected drunk driving.