DWAI DRUGS THE DRUG RECOGNITION EVALUATION. Joseph M. Gerstenzang, Esq. Gerstenzang, O Hern, Sills & Gerstenzang Albany, New York

Transcription

1 DWAI DRUGS THE DRUG RECOGNITION EVALUATION by Joseph M. Gerstenzang, Esq. Gerstenzang, O Hern, Sills & Gerstenzang Albany, New York 661

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3 DWAI Drugs The Drug Recognition Evaluation PRESENTED BY JOSEPH M. GERSTENZANG, ESQ

4 DWI VS. DWAI DRUGS DWI Ability to drive substantially impaired VTL 1192(2)/Per Se Roadside testing almost exclusively One drug Alcohol DWAI DRUGS Ability to drive impaired to any degree No Per Se impairment by drugs Testing done road side and at station almost always by different officers Thousands of drugs all listed in Public Health Law 3306 THE DRUG RECOGNITION EXPERT What? When? Materials you need: In general Discovery for your case Make the DRE your witness 664 2

5 DRE MANUAL: THE 7 DRUG CATEGORIES 665 3

6 CENTRAL NERVOUS SYSTEM DEPRESSANTS 6 sub-categories EXAMPLES Valium, Xanax and Prozac INHALANTS Three categories: Volatile solvents Aerosols Anasthetic gases 666 4

7 DISSOCIATIVE ANASTHETICS This drug category was originally titled PCP, but other drugs later added. CANNABIS 667 5

8 CENTRAL NERVOUS SYSTEM STIMULANTS Cocaine Crystal Meth Adderall Ritalin LSD HALLUCINOGENS MDMA Peyote 668 6

9 NARCOTIC ANALGESICS Heroin Oxycontin Vicodin Morphine Codeine Hydrocodone 12 STEP DRUG RECOGNITION EVALUATION 669 7

10 STEP ONE: CHEMICAL TEST RESULT Only a 0.00 or a surprisingly low BAC will usually result in the arresting officer calling in a DRE. STEP TWO: INTERVIEW OF ARRESTING OFFICER What is usually the most important question? 670 8

11 STEP THREE: PRELIMINARY EXAMINATION Questions Observations Pulse What is the DRE looking for at this stage? FORK IN THE ROAD Abandon the evaluation when: There is no evidence of drug impairment There is evidence of a medical condition 671 9

12 STEP FOUR: THE EYE TEST Horizontal gaze nystagmus: Drug Categories? Vertical Gaze Nystagmus: same categories as HGN Lack of convergence: same categories as above + cannabis CONFLICTING SYMPTOMS HGN: DRE VS. ARRESTING OFFICER

13 NON-DRUG RELATED/MEDICAL CONDITIONS CAUSING IMPAIRMENT EXAMPLES Conjunctivitis, bipolar disorder, diabetes, head trauma, multiple sclerosis, shock, stroke, carbon monoxide poisoning, seizures, endocrine disorders, neurological disorders, psychiatric conditions and infections NON-MEDICAL CONDITIONS CAUSING IMPAIRMENT Examples: exercise, excitement, fear, anxiety and depression

14 STEP FIVE: DIVIDED ATTENTION TESTS Standardized* Non-standardized Walk-and-turn One-leg stand Romberg test Finger-to-nose *cross-reference with arresting officer s observations NOTE: Cannabis STEP FIVE: THE LAWYERS FORK IN THE ROAD How does your client look on booking room video during this phase?

15 STEP 6: VITAL SIGNS PULSE BLOOD PRESSURE BODY TEMPERATURE STEP 7: DARK ROOM CHECKS: PUPILS Checking pupil size in different lighting conditions Normal pupil size: Central nervous system depressants Inhalants Disassociative anasthetics Dilated pupil size: Cannabis Central nervous system stimulants Hallucinogens Constricted pupils: Narcotic analgesics

16 DARK ROOM CHECKS: BLACK LIGHT Check for residue or evidence of drug usage in: Oral cavity Nasal cavity STEP 8: CHECK FOR MUSCLE TONE There are three possibilities for muscle tone Normal muscle tone: Cannabis Inhalants (sometimes) Rigid muscle tone: Central nervous system stimulants Hallucinogens Disassociative anasthetics Flaccid muscle tone: Central nervous system depressants Narcotic analgesics Inhalants (sometimes)

17 STEP 9: CHECK FOR INJECTION SITES Checking for injection sites: Arms Legs Between fingers and toes Neck, ankles, under watches and under rings Use of magnifying light is advised STEP 10: INTERROGATION OF SUBJECT

18 STEP 11: OPINION OF EVALUATOR Opinion is a result of the totality of the circumstances, not any one element. STEP 12: TOXICOLOGICAL EXAM REMEMBER: the presence of a drug in the blood/urine does not, by itself, indicate impairment

19 POLYDRUG USE Impacts on the symptoms associated with the evaluation? Four possibilities NULL EFFECT = 0. Neither marijuana or cocaine cause HGN. The combination also does not cause HGN

20 THE OVERLAPPING EFFECT Presence of alcohol and cocaine create increased body temperature and HGN. THE ADDITIVE EFFECT Angle of onset magnified when alcohol and PCP in blood

21 THE ANTAGONISTIC EFFECT Anticipated symptom (dilated/constricted pupils) absent because two drugs balance each other out I.e. cocaine (dilates) combined with heroin (constricts) = normal pupil size REQUISITE TRAINING DRE pre-school 7 day intensive course Written examination (80%) 12 supervised actual DRE evaluations Comprehensive Exam

22 RE-CERTIFICATION Every two years Required to submit rolling logs THINGS TO KNOW DREs are taught not to guess or speculate Only report the symptoms they observe at the time of the evaluation Never say they know when they do not

23 THANK YOU VERY MUCH QUESTIONS Contact Information Joseph M. Gerstenzang Gerstenzang, O Hern, Sills & Gerstenzang E: Joe.Gerstenzang@gmail.com C: (518) O: (518)