Driving Under the Influence of Drugs

• Author: Deandra M. Grant/Kimberly Griffin Tucker
• Pages: 321-362

9-321

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 9-322

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

9-323 DrivingUndertheInuence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 Rec-

ognition 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 impair-

ing substances other than alcohol and recognized

that they did not have the necessary skills or train-

ing to support their position.

In the mid-1970s, two LAPD sergeants, Richard

Studdard and Len Leeds, collaborated with numer-

ous 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 Evalu-

ation and Classification Program (DECP).

In the early 1980s, the National Highway Traf-

fic Safety Administration (NHTSA) took an active

interest in the work Studdard and Leeds were con-

ducting 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, Par-

tridge, & 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 approxi-

mately 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 impair-

ment due to something other than alcohol?

• If the DRE believes that the person is

impaired, is the impairment due to an inju-

ry, illness, or other medical complication,

or is it drug-related?

• If the DRE believes that the impairment is

due to drugs, which category or combina-

tion of categories of drugs is the most like-

ly 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 stan-

dardized 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 approxi-

mately one hour to complete. During the evaluation,

the officer conducting the examination will measure

and record the suspect’s vital signs and pupil size,

administer psychophysical tests to evaluate the per-

son’s mental and physical faculties, and conduct a