Potential changes in the DEC/DRE program are discussed
I have blogged before on the Drug Evaluation and Classification (DEC) Program (aka the Drug Recognition Expert Pr0gram):
- What is the relevant scientific community for the Drug Recognition Expert?
- A Pharmacologist and a DRE
- Score one for Science: The DRE program is found to be unreliable and not admissible
- Court Rules that DRE Protocol is Inadmissible as Evidence
- The Problem with Drug Recognition Expert and Why it is Designed for Failure
- Attorney McShane to Present at the ACS National Meeting in Anaheim
- Nearly 70 percent of Americans are on Prescription Drugs
For the second year in a row, I attended the SOFT/AAFS Drugs & Driving Committee meeting at the annual American Academy of Forensic Science meeting held in Seattle, WA. I wanted to thank the committee and its members for allowing criminal defense attorneys to attend the meeting. It is a hallmark of science to be open. Being open means allowing all stakeholders in the criminal justice system to attend the meetings. Criminal defense attorneys are stakeholders as we are the very last step in the quality assurance chain in the criminal justice system. Whatever preconceived notions that my colleagues might have about SOFT/AAFS Drugs & Driving Committee meeting, they are decidedly unfounded in my opinion.
In the meeting, there was an update of the DEC/DRE program offered by Chuck Hayes of the International Association of the Chiefs of Police that lead to quite a bit of discussion and deserves some blog space here and some thought.
1. The IACP’s DEC/DRE Technical Advisory Panel (TAP) will not be implementing a new drug category that will place the various new designer drugs (i.e., synthetic cannabinoids, synthetic cathinones, and synthetic hallucinogens) into additional categories. Instead, the DEC/DRE will put the synthetic cannabinoids into the cannabis category, the synthetic cathinones will be placed into the stimulant category, and the synthetic hallucinogens were not discussed. It is a curious choice as the largely anecdotal reports from poison control centers report that alleged users of synthetic cathinones experience a high stimulant effect followed by depressant effect. However, it was acknowledged that this decision to not expand the 7 drug categories was subject to later review.
2. West Virginia became the last of the 50 states to have a DEC/DRE program this year. The state of Virginia has one active DRE officer. The state of Delaware has only 3. There is a announced effort to put more ARIDE and DRE trained officers on the street.
3. The NHTSA goal of synchronicity to make all of the statements in the various NHTSA impairment curriculum have consistent language is complete.
4. In the future DEC/DRE instruction guides, the sections involving physiology and narcotic analgesics will be re-written. The TAP committee will help in the re-write.
5. There will be a revision in the DEC/DRE program that will allow the traditional 12th step (the collection of a chemical test) to happen earlier. There is even a push to move the collection of a chemical test first. From a legal point-of-view, nothing I can see prohibits that re-arrangement from happening, the person undergoing the DRE evaluation is already under arrest. As probable cause cannot be justified from data or information gathered post-arrest, there is no reason that the toxicological collection cannot be first. From a practical point-of-view, by moving it first, it may discourage people from completing the DRE. However, from a scientific point-of-view, this re-arrangement makes great sense to me. The crime is impairment due to drugs at the time of driving. Knowing that non-ethanol results cannot be subjected to retrograde extrapolation legitimately, it is essential that the collection of the biological sample be taken as soon as possible to the time of driving. The more time that goes by, the less relevant the analytical chemistry result becomes. In addition, as we know from the pharmacokinetic study of some drugs, there is a really rapid elimination of certain pharmacodynamically active drugs in the blood such as the case of delta-9-tetrahydrocannabinol as seen below. As we can see below, in a relatively short amount of time (about a half hour), the delta-9-tetrahydrocannabinol will be very much lower. If you want to punish impaired driving, not simply drug use, then this change makes total sense.
6. The most interesting discussion in the meeting concerned the DEC/DRE evaluator and the drug category determination by the officers. There was some discussion about how in some cases and in some states that according to the National Sobriety Testing Resource Center (NSTRC) and the Drug Recognition Expert Data System data, the “correct” DRE call as to just drug category as determined by the results of the analytical chemistry (in blood or urine) was poor. It appears based upon comments that the DEC/DRE TAP wanted to discus the continued value of having DEC/DRE officers make a particular call as to impairment BY A CERTAIN DRUG CATEGORY. It seems as if the argument to remove that step is one that recognizes that just as an analytical chemistry result alone cannot determine impairment, then neither can a DEC/DRE evaluation. The “call” of impairment should be a combination of the two. This would transform the DEC/DRE officer into a symptomology recorder and mere collector of evidence that would later be interpreted in combination with the analytical chemistry result by someone who is more rigorously trained in pharmacology such as a toxicologist. From a scientific point-of-view, I agree with this. Quite frankly, I never understood why the well-intentioned, but under-trained officer’s opinion as to impairment BY A CERTAIN DRUG CATEGORY is ever relevant at all. I think that DEC/DRE officers should be constrained to perform that investigative function of evidence gatherer and record observations. Currently, all the drug category call does is provide inappropriate expert opinion evidence (that should be reserved to a classically trained expert who knows pharmacology) and provide needless cross-examination fodder on the distracting issue over the accuracy of the officer’s opinion of drug category as opposed to the key issue of impairment. Without any doubt, there is no support for this change by IACP. None at all. These silly stats appear to be way too personal for the DEC/DRE to part with.
So, in conclusion, it seems as if there are some potential changes coming to the IACP’s DEC/DRE program. Some good, some bad. Only time will tell what will happen.
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Linda Bynum says:
I must say I am a fan. I have a horrible story to tell. Just reading your
insights and thoughts about DRE’s was very interesting. I would like to tell you a awful story about a DRE officer, and several others, that has haunted me everyday since my conviction.
It starts out, that first yes I am on medication for pain. I have been diagnosed with back problems, fibromylgia, very little cartlidge left in my knees. I have two types of arthritis in my knees. Bulging disks, ect. I will not bore you with all my medical details, however I am sure for a good attorney that would have been important. I will tell you my story of the interaction I had with a DRE officer and the courts. It started with a bad attorney, who promised me that all would go away to firing her for failing to show up for my final court date that would have ended this horrible nightmare. SEE, I knew I was innocent. But I have found that the court system is not blind as justice should be. They make assumptions, they point fingers and once you are in that police station, you are screwed. At least in my town. I have had 4 or 5 attorneys turn me down, one an ex-DA who stated that I should never have been prosecuted to begin with. It should not have made it into the courtroom. Even the Sheriffs deputies who were there, since I was the last case of the day, were hanging around made the comment “they did not see that coming”. Remember I said I had to fire the first one, well I found a second one, still believing that Attorney’s are here to uphold the oath. The second one made me at ease. Am I dumb? no, but I still believed that no matter what, the truth had to be told in court. It does not work that way. Not for someone who forgot that their license to defend someone was not just about a paycheck but also about giving the best defense possible. I met this Attorney a few weeks ago, to show him some newly discovered evidence. He has lost his license but still works in an some Attorney’s office. His license was taken because of audit problems for three years, but the Bar made their decision not only because of that but because he did not represent his clients to the degree that he should. I read the brief. Anyway, let me go back, and please keep reading. My husband inherited a nightmare of apartments. We had lived in Georgia for the last ten years before this happened and because I had came here, to try to take control of the property, because my sister-in-law was afraid of the area would not go near it. We did not know this. I evicted 20 out 22 Tenants. The Police stated to me that all I was doing was spreading the problem, meaning at least all the crack heads, drug dealers, even one who they were waiting on Federal Indicments, to arrest him, I had up-rooted their problems and spread them somewhere else. I do not even go to the property since it’s been cleaned up in fear of those police recoginizing me, and finding something to do to me. You see, one long day, as I worked in Apartment, sanding, cleaning, and then taking the two individuals who were helping me, home, which I had to come back for each one as my truck was full of tools, saws etc. I backed out of a driveway, did not hit this car, proved it in court on my own, no help from that attorney, but I was sitting in line at Burger King when I got this angry, hateful phone call from a female cop who I had met me previously when I was evicting I guess a friend of hers as she was very nice to them and stated to me, she had read the letters to the Tenants, and I wasn’t very nice. I was trying to take our future back and wrote my notices in a professional manner. That was a month before. That night she called me and ordered me to return to the street, because I had hit a car. A car, that I should say had been already wrecked, was a Tenant who was evicted and lived now on the opposite side of the street in some other unlucky persons apartment. Also, they told her I was DRUNK but she still told me to drive on four line highway, anyway and come back. I guess I did not drive fast enough, as the female called me again and yelled at me. I swear. I got there, drove perfect by their statements, and they proceeded to measure the area on my truck which was a scratch with her hip and then held her hand on her hip until she walked to the car. All this went on forever. I just stood there. They made me walk, at the time I did not know they had gotten three statements from Tenant’s that were being evicted that I was seen with an empty Corona box. How they knew it was empty I do not know but how they ever saw one that is a big question. There was never a Corona box. They arrested me because after working for 12 hours, not eating, and hurting really bad, I could not walk heal to toe. They did not give me a blow test on the street. I could not believe this happened. I have told so many people this story. It becomes tiresome. When I got to police station, they waited two hours before I took a breath test, it is was “0”. I said see I told you I was not drinking. So he said, he needed someone to come out and look at me. I waited an hour at least or more for this DRE officer. She had me skip around, she checked my eyes in a dark room. Looked up my nose and what did she see? Sanding from plaster. She refused to swab it. I asked her to, but she would not. Then they want a blood sample. I have a paper, that was not available at the time but it is the ambulance drivers refusal to draw blood, he did but could not get about 2 tablespoons and told that DRE officer that he was hurting me, and he could not get any blood, not enough blood. He stuck me 12 times, I have the pictures, that I took the next day. All of the bruises. Finally, he broke a needle in my hand, and after I jumped about two feet and he apologized, I was bleeding, his partner sat and used a needed to suck the blood off of the top of my hand. The DRE officer would not let him stop, after that, he stood and asked what she wanted him to do with viles, which you could still see the colengent stuff in the bottom. She told him to put them in the box, he did not tape them, I have since found out the process. Anyway, I was arrested and waited a year and 3 months before I made it to court with this new attorney. He did not have my drug test, he did not have discovery, and it was signed that day that I was using a new attorney. He did not ask for continuous, mainly because recently he told me that him and the judge had argued things before and he thought the judge would listen that two test, should not be entered and some other stuff. Anyway the expert witness was the DRE officer because at the time North Carolina’s SBI lab was having issues. My analysist, I believe to this day was fired before my case came around. I just know she no longer worked there 4 months before my case went to court. I finally got my entire blood test and chain of custody from an Assistant Attorney General, who either found it in her better judgement, or just realized I had been handed a raw deal. I do not know. The judge asked the DRE officer in her professional opinion would the two prescription drugs I had listed in my system, would they impair me. Of course she said yes, my attorney did ask her the same thing my doctor asked me, did she have a medical background? Did she understand your medical conditions? But my test at the end of the report stated Attention! Instrument data has been manipulated (simulated, edited or masked). I think if someone had used this, I would not have made it to court. Did I tell you that the female officer, called the ambulance service and told them I had been pulled over was not drinking but took several pain medications and they listed the trip as sick. I scored perfect on the Glasgow test by the ambulance driver which would I think override the DRE’s opinion. I did not have any of this stuff and when I spoke to my old Attorney 2 weeks ago, he was shocked at what I had. I asked him when he defended me, would he have looked for this stuff. He said no. He said that kind of defense, only 3 people in this town could afford that. So basically he was saying it was too cheap of a defense to warrant that kind of time. He never gave me an option. Now, what do I do? I really believed in the justice system. How could it be so bad? Thank you, Linda Bynum 910-340-7439
Justin J. McShane says:
I am very sorry to hear about your situation. I can give you a trusted referral to see if anything can be done. Please contact me at 717-657-3900