This is the beginning of a series of articles on DUI enforcement for drug impaired drivers, and a continuation of the very popular DUI enforcement, and SFST’s series. This article introduces officers to the problem of drug impaired drivers, the history of the Drug Recognition Expert program, and difficulties in prosecuting these cases.
The ability to interpret, analyze, and determine which drug category is the cause of the impairment requires officers to pass the intensive NHTSA/IACP Drug Evaluation and Classification (DEC) course, and be certified Drug Recognition Experts (DRE).
This article does not certify officers in anything, and is presented simply to educate officers on the DEC program and how it can benefit DUI enforcement and many other areas of law enforcement.
Alcohol vs. Drug Impairment
There is a widely understood problem with drivers impaired by alcohol. National safety campaigns, M.A.D.D., weekly news reports all tell the tale of the costs from this reckless behavior. Tens of thousands of lives lost each year, hundreds of thousands of people injured, and billions of dollars in damaged property, lost wages, and legal expenses in the wake of those who refuse to harness their drinking when they are going to drive.
However, there is also a serious problem with drivers operating their motor vehicles under the influence of drugs. There is very little argument that people using illegal drugs should not be driving. However, the problem is only compounded by the fact that millions of Americans are prescribed medications that can seriously impair their ability to operate motor vehicles. Many of these prescriptions are DEA Scheduled drugs, or anti-anxiety/depression drugs that can have serious impact on a person’s ability to operate a motor vehicle. When “legal” activity crosses the “illegal”, things get a lot trickier.
OxyContin (“Oxy”), a Schedule II Controlled Substance, is a commonly abused prescription pain killer that causes impairment. (Photo by DEA)
Thankfully most States have DUI/DWI statutes that are broadly written to include both alcohol or drug impairment. My State’s DWI statute simply states, “operated a vehicle in an intoxicated condition”. There is no mention of alcohol, or any particular blood alcohol content – simply “intoxicated condition”. That leaves the case dependent upon the “totality” of the circumstances and observations of the officer. Many States are very similar, though they also have statutes that make a particular blood alcohol content a separate violation.
Despite the hurdles, the enforcement of DUI laws for those who are impaired by drugs is just as relevant and important as the enforcement for alcohol impairment. Even if officers are loath to perform DUI enforcement (usually because of their lack of proficiency in administering SFSTs, and the paperwork), understanding drug impairment can be tremendously beneficial in general patrol work or for investigators.
The Drugged Driver Dilemma
Despite the serious and apparent public concern, DUI enforcement has become one of the most challenging aspects of law enforcement. Gone are the days where an officer’s report read, “saw drunk, arrested same”. The financial, social, and legal ramifications of a DUI conviction have raised the legal scrutiny for conviction to a very high level. In some cases it can be easier to obtain a conviction for felony assault, than a conviction for misdemeanor DUI.
Even with these hurdles, the vast majority of Americans recognize that alcohol-impaired driving is a serious concern worthy of police resources to combat and investigate. Now enter the realm of drug impaired driving, and you raise the scrutiny bar even higher. Drugs, particularly the Scheduled ones, involve a high level of scientific and/or medical training to fully understand. However, like alcohol impairment, a properly trained officer can successfully identify a drug impaired driver and correctly determine the drug category causing impairment.
Not having a medical or scientific degree does not disqualify an officer from testifying to their observations. Most Americans can talk with credibility on the impairing effects of alcohol – without being medical doctors or laboratory scientists. For those Americans who know someone who uses drugs regularly, the same applies. In fact, the basic observations of impairment are not what is most strongly attacked by defense attorneys. It is the testimony of an officer (non-scientist) on the particular drug category that is causing impairment.
Like alcohol impairment, defense attorneys will attack simple observations of impairment as being common attributes of many people. For instance, fumbling with a wallet is just nervousness. Watery eyes are allergies. Bloodshot eyes are just the way that person’s eyes are normally. Lack of balance is because of excess weight, always been clumsy, nervousness, etc. Where alcohol enforcement has an advantage is with the sense of smell.
Many people know what a person’s breath smells like when they have been drinking alcoholic beverages. It is that smell, or the observation of alcoholic beverage containers that ties the observed impairment to alcohol – a necessary element to satisfy an arrest for DUI. Many drugs do not come with such a common sensory indicator.
In drug impaired cases it becomes much more difficult for officers to make the connection from observed impairment, and what is causing that impairment to justify an arrest for DUI. However, the legal hurdle is not insurmountable, even for officers without specialized training. If an officer has experience with persons known to be under the influence of particular drugs, they can testify about those experiences and how it helped them form opinions in future investigations. The problem is, this leaves officers only able to testify about what they have personally been trained on or experienced.
That is where the Drug Evaluation and Classification (DEC) program becomes so valuable. The DEC program certifies officers who pass the training to be Drug Recognition Experts (DRE). This program is fully sponsored by NHTSA and IACP, and has been widely accepted in courts around the country. Not all courts have accepted this program, but many have. The program teaches officers to observe and test for the signs and symptoms of the (7) primary drug categories. They can then tie their observations with known scientific research on the effects from these drug categories and make an educated call on which drug category or categories is causing the impairment observed. In short, they make the link of impairment to cause.
Start of the Drug Recognition Expert (DRE) Program
The National Highway Traffic Safety Administration (NHTSA) sponsored the scientific studies that established the (3) SFST’s as scientifically acceptable to the Frye standard. However, NHTSA also sponsored a scientific testing of drug impairment detection, that culminated in the internationally recognized Drug Evaluation and Classification (DEC) program to teach and certify police officers as Drug Recognition Experts (DRE). This program is fully sponsored and administered by the International Association of Chiefs of Police (IACP).
The Drug Evaluation and Classification Program states, “A Drug Recognition Expert or Drug Recognition Evaluator (DRE) is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol.”
A DRE logo (photo from Missouri Safety Center)
There is a significant amount of training and field trials that must be successfully completed to become a certified DRE. This is not an attend and pass course. The officer must take several written tests, show proficiency in the administration of the SFSTs, and accurately call the drug category of impairment (proven through toxicology) of drug impaired test subjects before they are certified as DRE’s. Though the training is difficult, a dedicated officer can pass this class and greatly expand their abilities and career well beyond just DUI enforcement.
For more information visit the DECP website by clicking here. Here is just a brief look at the minimum requirements to successfully pass the DRE program:
- Drug Recognition Expert Pre-School (16 hours)
- Drug Recognition Expert DRE School (56 hours)
- Drug Recognition Expert Field Certification (Approximately 40 – 60 hours)
The Pre-School has a written exam that must be passed, and the DRE candidate must pass a DRE Instructor’s review of their ability to administer the SFSTs. The DRE School requires the candidate to pass a 100-question knowledge exam covering the entire program. In addition, the candidate must pass a comprehensive essay test where the candidate must complete both sides of the DRE matrix from memory, correctly identify and explain the poly drug categories of impairment from several case scenarios.
Finally, the DRE candidate must perform a minimum of 15 field evaluations of actual persons suspected to be under the influence of drugs. The candidate must be able to correctly identify the drug category of impairment on at least 75% of tested subjects, and must have correctly identified a minimum of (4) of the (7) drug categories. Once completed the DRE is certified for 2 years.
To maintain certification a DRE must perform a minimum of (4) evaluations in the 2-year certification period, maintain a minimum 75% correct call on drug impairment, attend a minimum of 8-hours of re-certification training, and submit an updated evaluation log and resume. This is a no-joke, real-deal training curriculum, but the pride of successfully acquiring your DRE number can be a career highlight.
Benefits of Knowing Drug Impairment
When a patrol officer contacts a person on a call, and has a basic understanding of how drugs effect the human body, they gain a powerful tool to open up possibilities for investigation. Seeing drug influence in a subject, can present justification for a longer detention, perhaps a search of the person, their vehicle, or the immediate “lunge” area, and ultimately solid ground for an arrest if contraband is located.
In addition, understanding the signs and symptoms of drug impairment allows the officer to gain a tactical advantage about possible physical threats the subject may present. If the officer recognizes signs of narcotic analgesics, that knowledge can prepare the officer to be extra cautious for hypodermic needles. If an officer sees symptoms of a CNS stimulant in their subject, they can be aware of the dangers from an overly aggressive subject who can exhibit strength and speed not normally associated with that person. Drug impairment is a police problem, and not a DUI officer problem.
ABOUT THE AUTHOR: Aaron has been in law enforcement for over 18 years, and is currently a sergeant in his department’s Traffic unit. Previously in his career, he spent 2.5 years as a dedicated DWI enforcement officer, making over 300 impaired driving arrests. He was a DRE, DRE Instructor, and SFST Instructor for 10 years. He also served 2 years as a detective for a multi-agency drug enforcement task force. He assisted with the planning and implementation of the 12th Annual Drug Evaluation and Classification National Conference in Kansas City, Missouri. Due to promotion his agency did not allow him to maintain his DRE certification. He is DRE #8003.