I. Introduction. Chapter 8 Driving Under the Influence of Drugs. Table of Contents

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1 Chapter 8 Driving Under the Influence of Drugs Table of Contents I. Introduction 8:01 States Fall into Two Camps 8:02 State Must Prove Impairment in Driving Ability 8:03 Drug Recognition Matrix II. Discovery 8:10 Understand Testing Procedures 8:11 Get a Retest 8:12 Ask for Specifics III. Jury Selection 8:20 Where the Case Will Be Won 8:21 Sample Voir Dire IV. Drug Recognition Evaluator Program 8:30 Overview of the Drug Recognition Expert Program 8:31 Receiving Drug Recognition Evaluator Certification 8:32 Maintaining Drug Recognition Evaluator Certification 8:33 The 12-Step Drug Recognition Evaluator Evaluation V. Cross-Examination of the Drug Recognition Evaluator 8:40 The Nine Major Areas of Attack 8:41 Missing Symptoms 8:42 Symptoms That Are Normal 8:43 Alternative Explanations 8:44 Client s Normal 8:45 Doctor Cop/Just a Cop 8:46 The Unknown 8:47 The Guessing Game 8:48 Training Comparison 8:49 Non Specific Areas of Examination I. Introduction

2 8:01 States Fall into Two Camps Driving under the Influence of Drugs (DUI-D) is the new frontier in impaired driving regulation. States are currently divided in to two different schools of thought. The first group makes it illegal to drive with any measurable amount of virtually any drug in blood or urine, **regardless of whether it impairs driving ability? **YES. The rational for such broadly structured statutes is indefensible. As most people understand, an individual can have trace amounts of certain drugs in the urine for days after use. Furthermore, an individual can have trace amounts of active narcotics in the blood that have no negative effect on the ability to drive a motor vehicle. In these states where the statutes are so overly broad, little can be done in front of a jury unless you can attack the methodology of the blood or urine test. Attacks on the methodology of chemical tests are covered throughout this book. The information provided on discovery, openings, cross examination, and so forth can be used for a DUI-D case. The other group of states define driving under the influence of drugs much the same as they do the common law crime of DUI alcohol (DUI-A), i.e. some level of impairment of mental or physical abilities, or both, which effects the ability to drive a motor vehicle is required. 8:02 State Must Prove Impairment in Driving Ability There is one concept that you as the attorney must understand and it is the central theme that will be used throughout this chapter: ** in the states that define DUI-D like DUI-A? **YESa DUI- D case requires the state to prove impairment in the ability to drive. General impairment is irrelevant. Of course before we even talk about impairment for a purpose, we need to understand what is meant by impairment. Generally speaking, the government s witness will admit that the definition of impairment they use is similar to what the American Medical Association calls impairment: any deviation from the base line norm. Now without getting in to the concept of how do we know a client s particular base line norm, let s just use generalities and not specific numbers. A number of drugs cause some form of impairment, without impairing driving ability. Let s look at two extreme examples. First, if your client took a drug that has increased his pulse, raised his blood pressure, and dilated his pupils, you might start to worry. However, since it was merely a cup of coffee, there is no issue. As a matter of fact, as will be discussed later, this is a good jury voir dire point. Second, suppose the blood shows low levels of barbiturates. Sounds bad. But your client is epileptic and is required to take Phenobarbital to prevent seizures. So, once again the drug is impairing, in that it impairs the seizures, but it does not impair the driving. Keep this concept in mind throughout this chapter. 8:03 Drug Recognition Matrix It is also critical that you understand the Drug Recognition Matrix. Here is a copy of it: ** Please provide. **

3 [ 8:04-8:09 Reserved] II. Discovery 8:10 Understand Testing Procedures Even more than a DUI-A case, a DUI-D case requires the defense attorney to have a solid working understanding of how blood or urine is collected, transported, stored, and analyzed. Before going further refer to 1:10 to 1:13 and appendix D for what you need and why you need it. When analyzing the reports from the lab as to what and how much of any chemicals were in your clients system, you cannot merely accept the summary report from the lab. You must see the actual printout of your client s run so you can see if (1) there is good separation between the various checked-for substances, (2) the graphs are sharp or have tailing in front or in back, (3) the accuracy is really there.1 8:11 Get a Retest Second, it will usually be worthwhile to get a retest of the blood **or urine? **yes. Unlike alcohol, where retesting is not usually productive, retesting for drugs can be. State crime labs are not nearly as accurate as private labs and given the precision needed for drug results and the lack thereof in the state lab, varying results are likely. Furthermore, if the officer or the phlebotomist used the alcohol collection kit and not a drug collection kit, you may have procedural and evidential issues. 8:12 Ask for Specifics Finally, in discovery, be sure to ask the prosecution to produce specific studies, articles, or other resources upon which the expert will rely to support the opinion that the drug in question impaired your clients driving abilities. For example, some stimulants at low levels merely keep one from falling asleep, a condition which at 2 a.m. is not an impairment to driving. [ 8:13-8:19 Reserved] III. Jury Selection 8:20 Where the Case Will Be Won More than any other case, DUI-D is won in voir dire. If the jury believes that the government is correct that any amount of the drug impairs the driving ability, then you lose. If, on the other 1 It is not the function of this book to teach the basic Gas Chromatography Mass Spectrometry information one needs to truly understand how GCMS works. I would suggest that if you find yourself doing a fair amount of DRIVING UNDER THE INFLUENCE OF DRUGS cases you either take a training class on how to read this information, get trained at a lab to do blood/urine analysis, take an entry level college class locally or do all three.

4 hand, you can show the jury that the government has to prove that your client s driving was impaired and that wasn t done, you win. As has been stated in Ch. 2 Jury Selection, the best way to get people to agree with your position is if they believe it already was their own position. 8:21 Sample Voir Dire Potential jurors, you have been told that this case involves driving under the influence of drugs. In other words, Bob s ability to drive was impaired by some drug. Who here believes that using any drug automatically impairs your driving ability? Ok, thank you all for your honesty. Who here drinks coffee (or Coke, or Tea or Red Bull, anything that has caffeine) in the morning? Who drank some before coming to court? So those of you who just said that consuming any drug and driving is illegal and who admitted to having coffee before coming here have just indicated that they committed a crime. Juror 4, you said any drug and admitted to coffee, how does that sound to you? You are correct, it is confusing, so let me help you out and you tell me what you think. Coffee contains caffeine and that is a stimulant. Like you, I need it to wake up in the morning and quite frankly you don t want me driving without it and I am sure we all know many people we would not want driving unless they have a cup first. But, since coffee does contain a stimulant, and impairment will be defined as any deviation from normal, it could be criminal. What do you think now? How about juror 6? That s the point, just because the caffeine impairs you, doesn t mean it impairs your driving. So let me ask all of you, does the mere fact that the drug is present in someone s system support a finding of guilty? Why or why not? Let s take another example. Who here gets severe headaches? Do you take medicine? So the aspirin you take eases the pain. So you are admitting to being impaired, but it is not driving related, just pain management. So who here thinks that not only must the government prove that the drug impairs driving, but they must also show a negative impairment. In other words, that whatever the drug impaired, it had to affect the driving skills? Juror 10 explain what you meant. [ 8:22-8:29 Reserved] IV. Drug Recognition Evaluator Program The following is a synopsis of the Drug Recognition Evaluator Program written by Anthony Planscentious, ** Please confirm spelling of name. Can t find him on Google. **a former drug recognition evaluator and drug recognition evaluator trainer** and printed here with his permission? (Please confirm you have his permission and that he owns the copyright and this material has not been previously published elsewhere.)**. It explains the history and concept of the Drug Recognition Evaluator Program.

5 8:30 Overview of the Drug Recognition Expert Program In the early 1970 s personnel from the Los Angeles Police Department (LAPD) began developing the Drug Evaluation and Classification program, better known as the Drug Recognition Expert program. The purpose of this program was to assist officers in detecting drivers who were possibly impaired on intoxicants other than alcohol. In 1979, the LAPD officially accepted the Drug Recognition Expert program. The program consisted of a 3-step process: 1. Establish a driver is impaired and rule out alcohol as the sole cause of impairment. 2. Rule out any medical issues as the cause of impairment. 3. Determine what drug category or categories are the cause of impairment. During the mid-1980 s, the National Highway Traffic Safety Administration (NHTSA) sponsored two validation studies to determine the Drug Recognition Evaluator Program s effectiveness. In 1984, the John Hopkins Validation Study was conducted using four senior drug recognition evaluators from the LAPD. In 1985, the LAPD Field Validation Study was conducted using 28 drug recognition evaluators from the LAPD and the surrounding area. They examined persons arrested in Los Angeles on suspicion of drug influence. Both studies reported correct decisions over 90% of the time. 8:31 Receiving Drug Recognition Evaluator Certification In order to attend the drug recognition evaluator training program, an officer must first attend the NHTSA DUI Detection & Standardized Field Sobriety Testing student course and either the NHTSA Drugs That Impair Driving course (DTID) or the NHTSA Advanced Roadside Impaired Driving Enforcement course (ARIDE). The drug recognition evaluator training program consists of three phases. Phase I consists of a two-day Pre-School; Phase II consists of seven days of classroom instruction, which includes passing a comprehensive written examination, and Phase III consists of the field certification. During the field certification, the drug recognition evaluator-in-training must complete a minimum of 12 evaluations, all which are supervised and evaluated by a drug recognition evaluator Instructor. Out of the 12 required evaluations, the drug recognition evaluator -intraining must be the evaluator in a minimum of six evaluations and identify at least three of the seven drug categories. Lastly, the drug recognition evaluator -in-training must pass a comprehensive final knowledge examination. 8:32 Maintaining Drug Recognition Evaluator Certification

6 Drug Recognition Evaluators are required to renew their certification every two years. Prior to recertification, the drug recognition evaluator must attend a minimum of eight hours training. The drug recognition evaluator is required to turn in an updated curriculum vitae and rolling log and administer four evaluations. All four evaluations must be reviewed and approved by a drug recognition evaluator instructor, and one of the four evaluations must be witnessed by a drug recognition evaluator instructor. 8:33 The 12-Step Drug Recognition Evaluator Evaluation Step 1: Breath Alcohol Test. The first step is to rule out alcohol as the sole cause of the impairment. If a suspect s alcohol concentration is too high, a drug evaluation will not be conducted. Step 2: Interview of the Arresting Officer: During this step, the drug recognition evaluator will speak with the arresting officer to determine what signs and symptoms of possible drug impairment the officer observed during the initial contact with the suspect. Step 3: Preliminary Examination: During step three, the drug recognition evaluator asks the suspect a set of specific questions taken from a Drug Recognition Evaluator Face Sheet. During the questioning, the drug recognition evaluator is recording specific observations of the suspect. The purpose for this step is to help the drug recognition evaluator determine if the suspect may be impaired due to a medical condition. In addition to asking the specific questions from the Drug Recognition Evaluator Face Sheet, the drug recognition evaluator will check for equal pupil size, equal tracking, and check the suspect s first pulse rate. Step 4: Eye Examination: Step four consists of the Horizontal Gaze Nystagmus test, the Vertical Gaze Nystagmus test, and the Lack of Convergence test. During the HGN test, the drug recognition evaluator will attempt to obtain an angle of onset and then apply the angle in the Tharp s equation (50 Angle = BAC). Step 5: Divided Attention Tests: The fifth step consists of the Romberg Balance test, the Walk and Turn test, the One Leg Stand test, and the Finger to Nose test. During this step, the drug recognition evaluator is recording signs of psychophysical impairment. Step 6: Vital Signs Examinations: During the sixth step, the drug recognition evaluator will check the suspect s blood pressure and body temperature utilizing drug recognition evaluator training course issued equipment. The drug recognition evaluator also is required to check the suspect s pulse for a second time. Step 7: Dark Room Examination: During the seventh step, the drug recognition evaluator, utilizing the drug recognition evaluator training course issued pupillometer card and pen light, will estimate the suspect s pupil size in specific lighting situations (e.g., room light, near total darkness, and direct light) The drug recognition evaluator will also check for reaction to light and check the suspect s mouth and nose for signs of drug ingestion.

7 Step 8: Muscle Tone Examination: The eighth step consists of the drug recognition evaluator checking the suspect s muscle tone in the left arm. The drug recognition evaluator will record on the drug recognition evaluator Face Sheet whether the muscle tone is rigid, flaccid, or near normal. Step 9: Check for Injection Sites and 3rd Pulse: During the ninth step, the drug Recognition Evaluator checks the suspect s arms, hands, and neck for signs of injection sites caused by hypodermic needles. The drug recognition evaluator also checks the suspect s pulse rate for the final time. Step 10: Suspect s Statements and Other Observations: In the tenth step, the drug recognition evaluator will question the suspect based on the signs and symptoms observed and recorded during the nine previous steps discussed above. By this point, the drug recognition evaluator should have at least a suspicion of which drug category or categories are present. Step 11: Opinion of the Evaluator: The eleventh step requires the drug recognition evaluator to analyze all the signs and symptoms recorded on the drug recognition evaluator Face Sheet during the entire evaluation and compare it to the Drug Symptomology Chart. The Drug Symptomology Chart, better known as the Matrix, lists the major indicators and general indicators of each of the seven (7) drug categories and is designed to assist the drug recognition evaluator in determining what drug category or categories are present. Step 12: Toxicological Examination: In this final step, the drug recognition evaluator will request the suspect to submit to a chemical test or tests for the purposes of evidence collection to support the drug recognition evaluator s opinion. Note: The 2005 drug recognition evaluator training curriculum revisions issued by the IACP Drug Recognition Evaluator Technical Advisory Panel (TAP) changed the drug recognition evaluator training curriculum to allow drug recognition evaluators to formulate an opinion, in certain situations, even if the 12-step evaluation process was not fully completed. Examples of acceptable situations when a drug recognition evaluator may formulate an opinion when any steps are omitted include, but are not limited to: injury to the suspect, uncooperativeness of a suspect, or equipment failure. Prior to the 2005 revision, drug recognition evaluators were not allowed to formulate an opinion unless all 12-steps were conducted and completed. [ 8:34-8:39 Reserved] V. Cross-Examination of the Drug Recognition Evaluator 8:40 The Nine Major Areas of Attack Given the multitudes of drugs being used in today s society, it is impossible to present complete cross examination for all drugs in all cases in this book. Instead, I will show the nine major areas

8 on which to attack a drug recognition evaluator during cross examination and use a few examples in each area to demonstrate the point. But first, here are the nine areas ripe for cross examination in a DUI-D case: Missing symptoms. Symptoms that were normal. Alternative explanations. Client s normals. Doctor cop. Just a cop. The unknown. Guessing game. Training comparisons. Let s examine each of these. 8:41 Missing Symptoms This line of questioning focuses on the fact the client did not have all the expected signs or symptoms of the drug category the DRE has called in his or her expert opinion. Example # 1: Q: You were taught that elevated pulse is a sign of CNS Stimulant influence? Q: Mr. Smith did not have an elevated pulse? Example # 2: Q: You were taught that lack of convergence is a major indicator of CNS Depressant influence? A: Mr. Smith did not have lack of convergence. Do not ask more than this. If you do so, then you are inviting the officer to explain WHY the symptom might be missing. Instead save it for your closing. 8:42 Symptoms That Are Normal This line of questioning focuses on the fact the client had signs or symptoms that were normal, and therefore not consistent with the drug category in question. Example # 1: Q: You were taught the normal range of blood pressure in DRE training, weren t you?

9 Q: That normal range is Systolic? Q: Diastolic? Q: What was Mr. Smith s systolic and diastolic blood pressure? A: 128 over 80. Q: 128 over 80 is within normal ranges? Q: Narcotic Analgesics lower the blood pressure Example # 2: Q: You were taught the normal range of pulse in DRE training? Q: The normal range is 60 to 90 beats per minute? Q: What was Mr. Smith s pulse? A: 86. Q: 86 is within normal range? Q: Cannabis elevates the pulse, doesn t it? 8:43 Alternative Explanations Perhaps the most understandable technique for a jury, the alternative explanation line of inquiry accepts the symptoms as present, but focuses on everyday rationales for them. These alternative explanations can deal with sleep fatigue, stress, a traffic accident, medical conditions, etc. Example # 1: Q: An elevated pulse rate can be caused by things other than drugs? Q: Excitement may cause it? Q: Stress? Q: Being involved in a traffic accident can be stressful? Q: Being involved in a traffic accident may cause elevated pulse? Q: Fear can elevate pulse? Q: False accusations?

10 Do not then sum it up, such as Well, being accused and evaluated by you after this accident may have caused my client to be fearful and stressed therefore elevating his pulse rate?. A smart cop will say Not if he had nothing to worry about. Instead, point out to the jury that many of them probably had an elevated pulse rate when they were first called to sit in the jury box for the initial voir dire because of fear of answering questions and anxiety about what might happen. Example # 2: Q: Body tremors can be caused by things other than drugs? Q: Anxiety or stress may cause tremors? Q: Cold weather may make one shiver? Q: Nicotine withdrawals may cause it? Q: Even excessive amounts of caffeine may cause body tremors? Again, don t try to drive home the conclusion. Leave it out there or else be prepared to get slammed. 8:44 Client s Normal What is normal? What is average? Earlier in this book we discussed the use of Gausian Distribution (or bell curve) to show that average or normal accounts for very few people, and that in order to encompass the vast majority of folks, one need to go out two or even three standard deviations. You can remind the jury of this during this part of the examination, by showing them that the officer has no concept of what normal or average really means. Example # 1: Q: You were taught the normal range for pulse in DRE training? Q:You agree that not all people fall in that normal range? Q: There are people with pulse rates above normal who are not on drugs? Q: People below normal who are not on drugs? Q: Do you know what the range of pulse rates is to capture one standard deviation from average, or about 68% of the population? Q: Do you know what the range is to capture about 95%, or two standard deviations?

11 Q: What about to get to three deviations or 99% or so of the population? A: No idea. Q: A person s pulse changes over time? Q:You don t know what Mr. Smith s normal pulse rate is? Q: It could be in your so-called normal range? Q: But his normal could be outside the normal range? Q: In fact it could be higher or lower than your normal range and yet he could be one of the second deviation people, in other words, just part of the 95% of us, but not part of the 68%? A: Huh? 8:45 Doctor Cop/Just a Cop This is best set up in opening or voir dire by asking a juror, especially someone who works in construction, if he uses a plumber to do the electrician s job or vice versa. E.g., Juror 5, if I told you I had a worker to do the plumbing but he was trained by an electrician, would that work for you? Why not? Example # 1: Q: The instructors in this DRE school weren t doctors? Q: They weren t nurses either? Q: Pharmacologists? Q: Paramedics? Q: They were police officers? Example # 2: Q: You re not a doctor? Q: A toxicologist? Q: A pharmacologist? Q: You don t have a degree in chemistry? Q: You re a police officer?

12 You then combine these two lines of inquiry in summation to point out that no one would want to place what is essentially a medical diagnosis in the hands of someone who was taught how to take a pulse, measure pupil size, obtain blood pressure and evaluate outward symptoms by a cop at the police academy or even in a special class. Similarly, they wouldn t want a nurse to handle a hostage situation if he or she were trained by another nurse on how to do so in medical school. This is especially valuable if you are using a real doctor as your expert in the case. 8:46 The Unknown Also called, I can t say why, this attack challenges the DRE s expertise by requiring the officer to state he or she does not know how a sign or symptom is caused, but was told only that should be there by the previously cop-trained cop. Example # 1: Q: You don t know how CNS Stimulants dilate the pupils? Q: You don t know why? Q: So you don t know the difference between stimulant dilation and other forms of dilation? Example # 2: Q: You don t know how Cannabis causes the pupils to pulsate? Q: You can t tell the jury how or why? Q: You can t tell the difference between cannabis pulsation and strobe effect? Example # 3: Q: You don t know how Hallucinogens supposedly elevate the pulse? Q: You can t differentiate between that elevation and nervous elevation? 8:47 The Guessing Game In other words, the opinion is subjectively based and not objectively supported. Dilation, pulse rate, even blood pressure are important vital signs that require years of training to obtain and then years more to cross reference to determine a possible cause. Yet officers use those three main tools to pick a drug. The jury needs to hear this. (This is predicated on discovery of the officer s record of DRE arrests which the DRE is required to keep pursuant to his or her training in order to be evaluated and to be continually certified).

13 Example # 1: Q: Your opinion in a DRE case is subjective? A: It is based on the information I obtained. Q: You ve made these beliefs in DRE cases in the past? Q: Sometimes toxicology didn t find the drug category you predicted? Q: In fact, sometimes toxicology didn t find any drug? Q: So, sometimes your opinion is not correct? Q: Sometimes you guessed wrong? Q: In fact when you first stopped my client, you thought he was under the influence of alcohol? A: Possibly. Q: You asked if he had been drinking? Q: But he tested zero for alcohol? Once more don t ask follow up because the officer will say that s why he went to drugs. Argue later to the jury that the cop thought alcohol and was wrong. He may be wrong here as well. 8:48 Training Comparison If you are confronted with a non-dre trained officer, then you might want to consider running through how intense DRE training is to show the complete lack of experience the beat cop has. Another line of inquiry is the completeness of the training an officer receives in order to carry a gun versus what they get in order to be a DRE. Typically weapons training is the toughest aspect of becoming a cop. Get the officer to describe how much training he needed to get to use that tool, which was taught by cops who us it, versus the training level for DRE, taught by non professionals. 8:49 Non Specific Areas of Examination Besides dealing with the specifics of the DRE protocol, or the specifics of your case, it may be worthwhile, either at the start or finish of your cross-examination, to show the jury that the officer really isn t much more than a parrot when it comes to understanding the science of the DRE regimen. In other words, the officer has no clue what this stuff is really based on. While many judges just accept DRE as a given, an open- minded judge may actually allow you to use this as a voir dire of the officer to preclude DRE testimony from even coming before the jury. Q: You never read the actual data in the study beyond what's in DRE manual? Q: You don't know how many people were tested in the study?

14 Q: You don't know how many people were tested on the drug in question in your case? Q: You don t know in how many cases officers incorrectly indicated the drug in question in your case? Q: You don't know the protocols used in the research to define "correct calls" in the research. Q: You don't know specifically who (what scientist if any) conducted the study? Q: You don't know to what blood concentration positive subjects in the research were dosed to? Q: You don't know how many control subjects were involved in the research? Q: You don't know how many control subjects were falsely identified as positive? Q: You don't know how many control subjects were incorrectly classified as the drug class involved in your case? Q: In other words, you know nothing about the research subjects, the controls, false positives, correct guess rate, levels of dosage or any aspect of the methodology? A: No I don t.