Driving Under the Influence of Drugs

• Author: Deandra M. Grant/Kimberly Griffin Tucker
• Pages: 379-422

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

IV. Drug Recognition Experts

§9:50 Training Curriculum

§9:51 Certification of Drug Recognition Experts

§9:52 Recertification of Drug Recognition Experts

§9:53 Challenging DRE Testimony

§9:54 Sample Cross-Examination of DRE

Texas DWI Manual 9-2

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.

The DRE evaluation typically takes

approximately one hour to complete. During the

evaluation, the officer conducting the examination

will measure and record the suspect’s vital signs and