Drug Recognition Evaluator-not an Expert (DRE)
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Transcript of Drug Recognition Evaluator-not an Expert (DRE)
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Drug Recognition Evaluator (DRE)
A Drug Recognition Evaluator (DRE) is a police officer who claims they can
recognize whether someone is on drugs, what kind of drugs they are on, and
whether their ability to drive has been impaired. The theory of the DRE is that they
claim to be able to determine whether someone is under the influence of drugs
through a visual evaluation. Lawyers Weekly USA , "Growing New Practice Area for
Drunk Driving Lawyers" dated September 20, 1999, p. 19. There are few Appellate
courts that have called them experts.
DREs frequently administer their tests when someone is arrested for drunk driving,
but passes a breath test. The DRE's testimony may provide better evidence for the
prosecution than toxicology reports. Blood tests may not measure the quantity of
drugs taken and, even if they do, may not show a level high enough to prove
impairment. Urine tests do not accurately pinpoint when the drugs were ingested
and may not show the quantity. Therefore blood and urine tests alone may not be
sufficient to prove the person was affected by drugs when they were driving. The
DRE argues they can provide the link between the toxicology report and the Driving
Under the Influence charge. The DRE offers testimony that the defendant failed the
physical tests administered by the DRE, showing that the defendant may be
impaired by the drugs in his system. Lawyers Weekly USA , "Growing New Practice
Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20. The DRE advises
that their examination of the suspect is broken into 5 parts: 1. Coordination tests.
The suspect must perform the "walk and turn," "one leg stand," "finger to nose,"
and "Romberg balance" test (where he must estimate when 30 seconds have
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passed while standing with his head tilted back and his eyes closed).
2. Eye tests. The DRE checks the suspect's pupil size under various lighting
conditions. He checks for "horizontal gaze nystagmus" where the eyes twitch when
looking off to the side and "vertical nystagmus" where the eyes twitch when looking
up. The DRE also checks to see if the eyes cross normally when looking down at the
nose.
3. Vital signs. The DRE measures the suspect's pulse, temperature and blood
pressure.
4. Muscle tone. The DRE feels the suspects arm muscles to see if the are loose and
rubbery or tense.
5. Visual inspection. The DRE inspects the suspect’s mouth and nose for signs of
drug ingestion, the presence of drug debris and discoloration. The DRE checks the
suspect's arms for needle marks. Lawyers Weekly USA , "Growing New Practice
Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.
The DRE determines whether the results of the exam performed on the suspect
match symptoms associated with 7 drug classes. The drug classes used are central
nervous system (CNS) depressants, CNS stimulants, hallucinogens, phencyclidine,
narcotic analgesics, inhalants, and cannabis. Journal of Analytical Toxicology,
"Laboratory Validation Study of Drug Evaluation and Classification Program:
Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 468. For example, a
person on a depressant should have normal pupils, but twitching eyes on the
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nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and slurred
speech. Persons on cannabis should have dilated pupils, no eye twitching, a high
pulse rate and blood pressure, their eyes may not cross normally when they look
down their nose, and they may have disorientation. The DRE also interviews the
arresting officer, reviews the breathalyzer results and asks the suspect if he has
been using drugs. Finally, the DRE concludes whether the suspect is behaviorally
impaired, if the impairment is drug-related, and the drug class or combination of
classes likely to be causing the impairment. Lawyers Weekly USA , "Growing New
Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.
Drug Recognition Experts are Not Recognized by New Jersey Courts There is no
decision from the New Jersey Supreme Court recognizing the reliability of DRE
testimony as proof of driving under the influence. The written opinions which
permit the admission of DRE testimony either say the evidence is "non-scientific" or
do not address this issue. However, the recent U.S. Supreme Court case, Kumho
Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999), extends the Daubert screening test
for expert testimony to "non-scientific" testimony. Therefore, if the N.J. Supreme
Court adopts Kumho, the DRE's testimony would not qualify as reliable evidence
using the Daubert test. See Lawyers Weekly USA ,
"Growing New Practice Area for Drunk Driving Lawyers" dated September 20,
1999, p. 20.
Generally, the party offering results of a scientific test as evidence is required to
show that the scientific technique has gained general acceptance within the
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scientific community. Romano v. Kimmelman, 96 N.J. 66 (1984); State v. Kelly, 97
N.J. 178 (1984); State v. Spann, 130 N.J. 484 (1993). There are three ways to show
general acceptance within the scientific community of a particular procedure. (1)
Testimony of knowledgeable experts. (2) Authoritative scientific literature. (3)
Persuasive judicial decision. Windmere, Inc. v. International Ins. Co., 105 N.J. 373
(1987). A proponent of scientific evidence must show that the procedure or
experiments are generally accepted in their field. Frye v. United States, 293 F.
1013 (D.C. Cir., 1923).
In pre-trial motions and at trial, defense lawyers can challenge the accuracy of the
evaluation and the DRE's qualifications to perform the tests. Lawyers Weekly USA ,
"Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999,
p. 21. Laboratory studies were done in 1996 and 1998. The 1996 studies were
undertaken to determine the validity of the variables of the Drug Evaluation and
Classification (DEC) evaluation in predicting whether research volunteers had been
administered ethanol, cocaine or marijuana and to determine the accuracy of DREs
in detecting whether subjects had been dosed with ethanol, cocaine, or marijuana.
Using discriminant function analysis, it was found that 17-28 variables of the DEC
evaluation predicted the presence or absence of each of the three drugs (ethanol,
cocaine and marijuana) with a high degree of sensitivity and specificity and low
rates of false-positive and false-negative errors. The five best predictive variables
were nearly as accurate as the entire subsets of 17-28 variables. When DREs
concluded subjects were impaired by ethanol or drugs or both, their predictions
were consistent with toxicological analysis in 51% of cases. When ethanol-only
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decisions, which were guaranteed to be consistent with toxicology, were excluded,
DREs' predictions were consistent in 44% of cases. Journal of Analytical Toxicology,
"Laboratory Validation Study of Drug Evaluation and Classification Program:
Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 475. This study
provides a list of the symptoms that were found to be the best predictors of
impairment by a particular class of drug. Journal of Analytical Toxicology,
"Laboratory Validation Study of Drug Evaluation and Classification Program:
Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 470, 472, 474. If these
symptoms are not consistent with those found present in the client on the DRE
report, this may call into question the validity of the DRE's conclusion. Challenges
to the DRE Aside from challenging the accuracy of the DEC, the defense attorney
can challenge the DRE's qualifications. It may be argued that the DRE is not a
medical doctor and has only had a nine day course and is therefore not qualified to
make a subjective evaluation of the suspect's physiological symptoms. A lawyer
can inquire into what training the DRE has been given in distinguishing the effects
of drugs from those of other medical conditions. It should be pointed out that only
one and a half pages of the 570 page DRE training manual covers medical
conditions that can be confused with drug impairment. The defense attorney
should get the DRE's training history to see how well he did in the course and what
continued training he has had. The attorney should also try to find out what the
DRE's track record is by requesting a copy of the running log which DREs are
supposed to keep. Lawyers Weekly USA , "Growing New Practice Area for Drunk
Driving Lawyers" dated September 20, 1999, p. 21. The defense attorney can also
try to explain the suspect's symptoms. For example, high blood pressure, high
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pulse rate and muscle rigidity can be caused by the stress of an arrest. Other
symptoms may be caused by mental conditions such as attention deficit disorder or
mania or delirium, or a medical condition such as diabetes, hypertension or an
abnormal movement disorder. There are many natural causes for nystagmus. In
cases involving accidents, symptoms may be due to a concussion. Lawyers Weekly
USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20,
1999, p. 21. By reading the DRE manual, the defense should be able to find
potential mistakes made by the DRE while conducting the test. The manual warns
that any deviation from the protocol affects the conclusion. So if the DRE does not
administer the evaluation under the conditions recommended by the manual, this
presents the defense with a good argument that the results are not reliable.
Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers"
dated September 20, 1999, p. 21. Other possible arguments may emerge by
comparing the DRE's report with the notes of the arresting officer. There may be
inconsistencies. Another potential argument is that, even if the DRE correctly
determines that the suspect was affected by drugs, that does not necessarily mean
the suspect's driving ability was impaired. Lawyers Weekly USA , "Growing New
Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21.
For more information, see Lawyers Weekly USA dated September 20, 1999. Copies
of the above referenced 1996 and 1998 studies are available by fax from Lawyers
Weekly USA. The 1996 study is "Laboratory Validation Study of Drug Evaluation and
Classification Program: Ethanol, Cocaine, and Marijuana," Lawyers Weekly USA No.
9916532 (16 pages). The 1998 study is "Laboratory Validation Study of Drug
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Evaluation and Classification Program: Alprazolam, d-Amphetamine, Codeine, and
Marijuana," Lawyers Weekly USA No. 9916533 (12 pages).
GLOSSARY OF TERMS
alcohol gaze nystagmus (AGN) - Gaze nystagmus caused by the effects of alcohol
upon the nervous system.
caloric nystagmus - A vestibular system nystagmus caused by differences in
temperature between the ears, e.g., one ear is irrigated with warm water and the
other irrigated with cold water.
epileptic nystagmus - Nystagmus evident during an epileptic seizure.
field sobriety test (FST) - Any number of tests used by law enforcement officers,
usually on the roadside, to determine whether a driver is impaired. Most FSTs test
balance, coordination and the ability of the driver to divide his or her attention
among several tasks as once. Other tests, such as the horizontal gaze nystagmus
test, are used to measure a subject's impairment level.
fixation - ability of the eye to focus on one point.
gaze nystagmus - Nystagmus that occurs when the eyes gaze or fixate upon an
object or image. Usually caused by a disruption of the nervous system.
horizontal gaze nystagmus (HGN) - Gaze nystagmus that occurs when the eyes gaze
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or move to the side along a horizontal plane.
jerk nystagmus - Nystagmus where the eye drifts slowly away from a point of focus
and then quickly corrects itself with a saccadic movement back to the point of
focus.
National Highway Traffic Safety Administration (NHTSA) - The agency within the
United States Department of Transportation that administers traffic safety
programs. NHTSA's duties include funding studies on field sobriety tests and
training law enforcement officers in the administration of the standardized field
sobriety test battery.
natural nystagmus - Nystagmus that occurs without any apparent physiological,
vestibular, or neurological disturbance. Natural nystagmus occurs in approximately
2%-4% of the population.
neurological nystagmus - Nystagmus caused by some disturbance in the nervous
system.
nystagmus - An involuntary bouncing or jerking of the eye caused by any number of
vestibular, neurological or physiological disturbances.
oculomotor - Movement of the eyeball.
one-leg-stand (OLS) test - One of the three tests that make up the standardized field
sobriety test battery. This test requires a subject to stand on one leg, look at his or
her foot and count out loud to thirty. The subject is assessed on the ability to
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understand and follow instructions as well as the ability to maintain balance for
thirty seconds. [post-publication note (August 1999), sentence should read: "...count
out loud until told to stop."]
optokinetic nystagmus - A nystagmus evident when an object that the eye fixates
upon moves quickly out of sight or passes quickly through the field of vision, such
as occurs when a subject watches utility poles pass by while in a moving car.
Optokinetic nystagmus is also caused by watching alternating moving images, such
as black and white spokes on a spinning wheel.
oscillate - to move back and forth at a constant rate between two points
pathological disorder - Disruptions of the normal functions of organs of the body due
to disease, illness, or damage.
pendular nystagmus - Nystagmus where the eye oscillates or swings equally in two
directions.
physiological nystagmus - A nystagmus that occurs so that light entering the eye
will continually fall on non-fatigued cells on the retina. Physiological nystagmus is so
slight that it cannot be detected without the aid of instruments and it occurs in
everyone.
positional alcohol nystagmus (PAN) - Positional nystagmus when the foreign fluid is
alcohol. Pan I - The alcohol concentration is higher in the blood than in the
vestibular system. Pan II - The alcohol concentration is lower in the blood than in the
vestibular system.
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positional nystagmus - Nystagmus that occurs when a foreign fluid is in unequal
concentrations between the blood and the fluid in the semi-circular canals of the
vestibular system.
post-rotational nystagmus - Nystagmus caused by disturbances in the vestibular
system fluid when a person spins around. Post-rotational nystagmus lasts for only a
few seconds after a person stops spinning.
resting nystagmus - Nystagmus that occurs as the eye are looking straight ahead.
rotational nystagmus - Nystagmus caused by disturbances in the vestibular system
fluid when a person spins around. Rotational nystagmus occurs while the person is
spinning.
saccadic - Movement of the eye from one fixation point to another.
smooth pursuit - The eye's course as it tracks a moving image.
Southern California Research Institute (SCRI) - A research organization that
conducted the first two research studies that eventually produced the standardized
field sobriety test battery. SCRI has conducted subsequent field sobriety test
validation studies as well as drug recognition evaluation studies.
standardized field sobriety test (SFST) battery - A group of tests selected as the best
field sobriety tests to increase the ability of law enforcement officers to detect
driver impairment. The results of this battery, usually administered along the
roadside, contribute extensively to a law enforcement officer's decision to arrest a
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person for impaired driving.
walk-and-turn (WAT) test - One of the three tests that make up the standardized
field sobriety battery. This test requires a person to take nine heel to toe steps down
a straight line, turn and take nine heel to toe steps back up the line. The subject is
assessed on the ability to understand and follow instructions as well as the ability to
maintain balance during the instruction stage and walking stage.
vertical nystagmus - nystagmus that occurs when the eyes gaze or move upward
along a vertical plane.
vestibular system - The system of fluid-filled canals located in the inner ear that
assists in balance, coordination and orientation.
vestibular system nystagmus - Nystagmus caused by a disturbance in the vestibular
system.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes
you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
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3. If you are on Probation, you will have to submit to random drug and urine testing.
If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could
be used by law enforcement for the investigation of criminal activity, and pay for
the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a
loss and if the court finds that you are able or will be able in the future to pay
restitution.
6. If you are a public office holder or employee, you can be required to forfeit your
office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue
of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your
driver's license for 6 months - 2years. You must pay a Law Enforcement Officers
Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of
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$50 ($100 minimum if you are convicted of a crime of violence) for each count to
which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each
conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per
month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are
a number of viable defenses and arguments which can be pursued to achieve a
successful result. Advocacy, commitment, and persistence are essential to
defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the
statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of
years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which
shall be fixed by the court and shall be between five years and 10 years;
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(3) In the case of a crime of the third degree, for a specific term of years which shall
be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be
fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A
person who has been convicted of an offense may be sentenced to pay a fine, to
make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
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