Should Toxicologists Be Part of the “Prosecution Team”?

At this year’s AAFS meeting, Chuck Hayes of the International Association of the Chiefs of Police gave a thought provoking presentation about the DRE program in the Toxicology Section. I was there in person. It was entitled “Re-examining the ‘Three Legged Stool’ Approach to Deterring Drugged Driving.”

His presentation really got me thinking. For the rest of the week, I presented his thesis to a lot of forensic scientists both inside and outside of the discipline of toxicology and asked for their comment. That lead to quite a bit of discussion and deserves some blog space here and some thought.

Here is what the thesis of his talk. It was his vision—the three legged stool.

His presentation centered around the thought that it is right, proper and very much needed that the toxicologist be part of the “prosecution team.”

To be fair, he was not talking about education. If it was about education, I would be all for it. Who could object to anyone in the system getting more education from a better source? Cops teaching cops is good for some subject areas. But cops teaching other cops advanced pharmacodynamics and medical actions is a formula for disaster. I think it would be wonderful if toxicologists would team up with police officers and prosecutors and teach them about the fundamentals of pharmacology and analytical chemistry and in particular limits of the science. The ARIDE and DRE protocol are most decidedly not about an honest and full discussion on the limits of what they do.

What he was talking about could be captured in a few choice phrases that he used time and again.

He said, “What we [DRE officers] need you [toxicologists] to do is to drive down those detection limits so you can support what the DRE called.” What he meant by that was covered in the next few slides. He revealed that the overall “national accuracy rate” of the DRE drug category call (meaning that the DRE made a call of the drug category that was then supported by the analytical toxicology result whether by blood or urine in whatever amount and even by only inactive metabolites) was only 65%. He revealed that according to the proprietary National Sobriety Testing Resource Center (NSTRC) and the Drug Recognition Expert Data System data that 2 states were below 50%. So his solution, at least in part, is not to admit the limitations of the DRE as evidenced by this data, but instead change the measurand, change the metric. Because if you push the LOD down to really low levels, and if you continue to support urine as your matrix, then you will find drugs. Therefore, you can “pad” those DRE drug category call accuracy statistics.  The logic behind this is singular. Such a call for action is not to care about impairment as the title of his talk would connote, but rather promote the phony baloney numbers of the DRE officer drug category presence accuracy claims.

He also said, “You are a great part of our team. We need a combination of aggressive prosecutors, you know the ones who aren’t shy to prosecute the no tox find in court. We need you to go into court and be aggressive too.” He continued to talk about the need for DREs to feel comfortable calling up the toxicologist to “collaborate on a finding of impairment” to “support the DRE call.”

So in other words, to be like Maverick and Goose against the defense. Give each other high fives after the set-up and the spike and the like.

Is this the right point of view to adopt–this three legged stool?

During the week when I discussed this with many of my tox section friends, there was a mixed bag of responses. A very small minority thought that it was good and right to be an integral part of the three legged stool. They felt that they should be advocates because drugged and drunk driving is evil. They see their role as that of enforcement.

However, I am pleased to report a majority of them rejected this three legged stool view. Instead, they saw their role in the court, not of that with enforcement, but rather as neutral scientist. They opined that there are more than enough advocates in the courtroom. Instead, they said that their opinion should be based on empirical facts and the interpretation of those facts should not be dependent on prosecution or defense. It should be blinded as to cause (e.g. prosecutors who want to win and defense attorneys who want to win) and outcome (e.g. guilty or not guilty). I agree with them.

The three legged stool is dangerous. While no one can be truly objective, one can be honest. It is the duty of toxicologist to concentrate on the chemistry and the pharmacology and to change or modify his or her point of view based upon greater information. It is not the duty of the toxicologist to concentrate on the conviction.

Dr. David Goodstein, U.S. physicist, educator and Vice-provost of the California Institute of Technology, where he is also a professor of physics and applied physics in his book On Fact and Fraud: Cautionary Takes from the Front Lines of Science, wrote:

• “A scientist should never be motivated to do science for personal gain, advancement or other rewards.”
• “Scientists should always be objective and impartial when gathering data.”
• “Scientists must never believe dogmatically in an idea or use rhetorical exaggeration in promoting it.”
• “Scientists should never permit their judgments to be affected by authority.”

From his investigations Goodstein found three risk factors present in nearly all cases of scientific fraud. The perpetrators, he writes,

1. Were under career pressure;
2. Knew, or thought they knew, what the answer to the problem they were considering would turn out to be if they went to all the trouble of doing the work properly; and
3. Were working in a field where individual experiments are not expected to be precisely reproducible.

The three legged stool approach without a doubt fits the three risk factors that Goodstein warns us against.

True scientists must reject the three legged stool approach. True scientists are the toughest kind of people in the world: they have integrity; they demand proof and eschew simple belief; they shun political causes. Mostly, true scientists are heroes.