While a driving while intoxicated charge routinely involves a driver under the influence of alcohol, the reality is there is a growing trend of drivers operating vehicles under the influence of prescription medication or other controlled substances. From illegal drugs to prescription pills, medication presents a series of challenges that aren't present in typical alcohol-related DWIs. Law enforcement has struggled with finding an objective test to determine drug intoxication similar to how a driver's blood alcohol concentration may be used to determine alcohol intoxication. However, many drugs cannot be accurately measured in the human bloodstream that demonstrates a "per se" level of impairment like they can for alcohol. This has led to a number of wins at trial for Texas DWI attorneys. Houston DWI specialist attorney Doug Murphy has published numerous articles and spoke all over the United States on how to defeat and attack the fallacies of the DRE opinion and protocol.
The law enforcement solution to address drivers under the influence of drugs across the country? Drug recognition experts (DRE). DRE is a police tool created by police officers, not scientists or medical doctors with expertise in pharmacology or medicine.
What is a Drug Recognition Expert?
Also known as DREs, these purported experts are called in to evaluate whether or not a driver is under the influence of drugs during DWI investigations. A DRE is a Texas peace officer that has received additional training that supposedly enables them to identify signs of drug intoxication and also potentially identify the substance ingested. The key to a DRE investigation is the use of a 12-step (ironic they selected 12 steps?) checklist known as the DRE Protocol. However, all of the steps in the 12 step protocol are subjective or could realistically lead to erroneously conclusions other than drug intoxication. If a DRE is unable to convince a suspect to submit to a blood or urine test, the DRE is likely to testify at trial with little more than a subjective opinion on a complicated subject in which the DRE has limited training in.
For an officer to serve as a DRE, they must first be certified. Before that can happen, applicants must meet some basic requirements:
- Must be a commissioned Texas Peace Officer
- Must have a minimum of two years of service (excluding Reserve time)
- Must have completed the 24-hour SFST course
- Must have a reasonable background and experience level of making DWI arrests.
Applicants that meet these criteria and are accepted into DRE training will then begin a three-phase training program. The phases of the program are:
- Drug Recognition Expert Pre-School (16 hours)
- Drug Recognition Expert DRE School (56 hours)
- Drug Recognition Expert Field Certification (approximately 80 hours).
Across the three phases, the total training time adds up to 152 hours. To achieve final certification after completing the courses, an applicant needs only to pass a final exam and perform 12 DRE exams on an individual in a controlled environment under the influence of drugs. The DRE certification process in Texas is not particularly taxing, and that's part of the problem.
The DRE Steps
Once certified, a DRE is authorized to evaluate a suspected drug-intoxicated driver using a 12-point checklist. Known as the DRE Protocol, this checklist is treated held out as an objective test that allows a trained professional to determine with certainty if a person is intoxicated by illegal narcotics or prescription drugs. However, the DRE protocol is little more than a mixture of standard DUI investigative techniques and subjective observations made by the officer. The steps are:
- Breath Alcohol Test
- Interview of the Arresting Officer
- Preliminary Examination and First Pulse
- Eye Examinations
- Divided Attention Psychophysical Tests
- Vital Signs and Second Pulse
- Examination of pupil size, nasal and oral cavities
- Examination of Muscle Tone
- Examination for Injection Sites and Third Pulse
- Interrogation of the Suspect
- Analysis and Opinions of the Evaluator
- Toxicology: Obtaining a specimen and subsequent analysis
The notion of a regimented, 12-step process in which a trained expert can objectively identify signs of drug use sounds impressive. However, upon closer inspection, most of these steps are little more than observations that don't lead to any specific conclusion.
Unreliability of the DRE Protocol
There are a number of courts across the country that have refused to allow a DRE to present their opinion as evidence at trial. In other cases, the DRE is allowed to testify but the conclusions drawn from the DRE Protocol are aggressively challenged by the defense attorney.
The DRE Protocol is Not Scientifically Proven
Arguably the largest problem with the DRE Protocol is that the DRE opinion behind it is surrounded in controversy and not rooted in scientific or medical principles. While initial studies funded solely by law enforcement suggested that the DRE Protocol was potentially internally accurate and standardized, more recent research casts doubt on the whole DRE protocol and called for a "thorough re-evaluation of the DRE protocol." Peer-reviewed research now suggests that those early studies had a pro-DRE bias and calls into question the accuracy of the entire DRE protocol in general.
In Texas courts, a judge can prevent a DRE from giving an expert opinion on whether a person is intoxicated if the court believes the DRE protocol either is unsupported by scientific studies and has a high potential rate of error or that the overall factors don't support reliability.
DRE Training is Limited
The basis for a Texas court allowing a DRE to give their opinion on whether or not a driver was intoxicated is the idea that the DRE is an expert in the field. However, the limited training a DRE receives is low compared to the highly complicated, scientific nature of determining whether a person is under the influence of drugs. The conclusions drawn by a DRE should be made by a pharmacologist or a medical doctor in a laboratory setting. A DRE simply doesn't have the expertise to make a qualified opinion on whether or not a person is under the influence of drugs much less identifying the drug itself. Further, officers do not have the training or expertise to distinguish between medical impairment that mimics a sign of intoxication.
Alternative Explanation for Test Results
Another significant issue with several phases of the DRE Protocol is that results a DRE consider evidence of intoxication can be explained by other factors. In step four of the protocol, a DRE is instructed to examine a suspect's eyes to determine if pupils are dilated. The theory is that a number of drugs cause pupil dilation. The problem with using that as an indicator of drug intoxication is that everything from deep cognitive thought to sexual arousal can also cause pupil dilation. There is no way for a DRE to know what has actually caused a suspect's pupils to dilate, which makes the observation meaningless.
Another issue arises in the steps that monitor a suspect's vital signs. A DRE will note if a suspect's pulse, blood pressure, and body temperature are elevated above average. However, a single recording of a suspect's vital signs shouldn't be considered as evidence of intoxication. This is especially true in a stressful situation like a traffic stop. Every individual has different vital signs; a DRE can't know if it is normal for a suspect to have an elevated heart rate or body temperature. Additionally, elevated blood pressure is routinely a symptom of health issues. A DRE can't know if a suspect's vital signs are a sign of drug use or not.
Houston DWI Attorneys
Doug Murphy is a board certified DWI specialist. He is widely accepted as the most experienced and knowledgeable lawyer attacking DWI with drugs and/or DRE evidence. Doug Murphy has had great success in preventing a DRE from giving an opinion at trial. In other cases, attorneys have been able to discredit DRE testimony and earn an acquittal. There is a myriad of issues with the DRE Protocol that render it a subjective opinion given by a person unqualified to weigh in on the subject.
Hiring the right lawyer for your DWI case is critical. Houston DWI attorney specialist Doug Murphy understands that ultimately it is the jury's opinion that matters at trial. As one of only two attorneys in Texas board-certified as an expert in both criminal law and DWI defense, Doug Murphy has the experience to show a jury the subjective nature of the DRE Protocol. It is trial defense that is Doug Murphy's specialty, as he always pursues a case with the intent to try it in front of a jury. Contact the Doug Murphy Law Firm to discuss your case today.