The Problem with Drug Recognition Expert and Why it is Designed for Failure

When people think of DUI, they often think of Drunk Driving meaning drinking too much alcohol.  There is, of course, another form of DUI that is referred to as DUID or Driving Under the Influence of Drugs, both legal prescription drugs and illegal drugs.  As such, it now becomes very important for DUI Lawyers to become well versed in DUID and in not only analytical chemistry, but also in Drug Recognition Expert (DRE) protocol.

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DRE is a twelve step National Highway Traffic and Safety Administration (NHTSA) standardized national curriculum that has been designed, but have yet to be vigorously tested, to supposedly detect impaired drivers at roadside. The base principles of DRE are the Standardized Field Sobriety Tests which interestingly enough were not designed to record or quantify impairment yet form the crux of detecting impairment in the DRE context. The twelve (12) published steps of DRE are as follows:
1. Breath Alcohol Test
The arresting officer reviews the subject’s breath alcohol concentration (BrAC) test results and determines if the subject’s apparent impairment is consistent with the subject’s BrAC. If so, the officer will not normally call a DRE. If the impairment is not explained by the BrAC, the officer requests a DRE evaluation.

2. Interview of the Arresting Officer
The DRE begins the investigation by reviewing the BrAC test results and discussing the circumstances of the arrest with the arresting officer. The DRE asks about the subject’s behavior, appearance, and driving. The DRE also asks if the subject made any statements regarding drug use and if the arresting officer(s) found any other relevant evidence consistent with drug use.
3. Preliminary Examination and First Pulse
The DRE conducts a preliminary examination, in large part, to ascertain whether the subject may be suffering from an injury or other condition unrelated to drugs. Accordingly, the DRE asks the subject a series of standard questions relating to the subject’s health and recent ingestion of food, alcohol and drugs, including prescribed medications. The DRE observes the subject’s attitude, coordination, speech, breath and face. The DRE also determines if the subject’s pupils are of equal size and if the subject’s eyes can follow a moving stimulus and track equally. The DRE also looks for horizontal gaze nystagmus (HGN) and takes the subject’s pulse for the first of three times. The DRE takes each subject’s pulse three times to account for nervousness, check for consistency and determine if the subject is getting worse or better. If the DRE believes that the subject may be suffering from a significant medical condition, the DRE will seek medical assistance immediately. If the DRE believes that the subject’s condition is drug-related, the evaluation continues.

4. Eye Examination
The DRE examines the subject for HGN, Vertical Gaze Nystagmus (VGN) and for a lack of ocular convergence. A subject lacks convergence if his eyes are unable to converge toward the bridge of his nose when a stimulus is moved inward. Depressants, inhalants, and dissociative anesthetics, the so-called “DID drugs”, may cause HGN. In addition, the DID drugs may cause VGN when taken in higher doses for that individual. The DID drugs, as well as cannabis (marijuana), may also cause a lack of convergence.
5. Divided Attention Psychophysical Tests
The DRE administers four psychophysical tests: the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests. The DRE can accurately determine if a subject’s psychomotor and/or divided attention skills are impaired by administering these tests.
6. Vital Signs and Second Pulse
The DRE takes the subject’s blood pressure, temperature and pulse. Some drug categories may elevate the vital signs. Others may lower them. Vital signs provide valuable evidence of the presence and influence of a variety of drugs.
7. Dark Room Examinations
The DRE estimates the subject’s pupil sizes under three different lighting conditions with a measuring device called a pupilometer. The device will assist the DRE in determining whether the subject’s pupils are dilated, constricted, or normal. Some drugs increase pupil size (dilate), while others may decrease (constrict) pupil size. The DRE also checks for the eyes’ reaction to light. Certain drugs may slow the eyes’ reaction to light. Finally, the DRE examines the subject’s nasal and oral cavities for signs of drug ingestion.
8. Examination for Muscle Tone
The DRE examines the subject’s skeletal muscle tone. Certain categories of drugs may cause the muscles to become rigid. Other categories may cause the muscles to become very loose and flaccid.
9. Check for Injection Sites and Third Pulse
The DRE examines the subject for injection sites, which may indicate recent use of certain types of drugs. The DRE also takes the subject’s pulse for the third and final time.
10. Subject’s Statements and Other Observations
The DRE typically reads Miranda, if not done so previously, and asks the subject a series of questions regarding the subject’s drug use.

11. Analysis and Opinions of the Evaluator
Based on the totality of the evaluation, the DRE forms an opinion as to whether or not the subject is impaired. If the DRE determines that the subject is impaired, the DRE will indicate what category or categories of drugs may have contributed to the subject’s impairment. The DRE bases these conclusions on his training and experience and the DRE Drug Symptomatology Matrix. While DREs use the drug matrix, they also rely heavily on their general training and experience.
12. Toxicological Examination
After completing the evaluation, the DRE normally requests a urine, blood and/or saliva sample from the subject for a toxicology lab analysis.

One of the problems with DRE evaluation is in the process itself. The process itself is immediately and perhaps irreparably removed from the realm of the supposedly objective and empirical into the subjective and interpretive with step number two (2): Interview of the Officer.

From an officer’s point of view, Step two (2) or “Interview with Officer” is fraught with potential peril. From a scientist’s point of view, Step two (2) or “Interview with Officer” removes the exercise from empiricism into subjectivity. This second step carries within its implementation, even subconsciously, a very real risk to shortcut thinking. Step two (2) or “Interview with Officer” should be eliminated or at the very least removed to after the DRE examiner makes a determination, which is really an quasi-educated guess, as to the class of impairing substance, if there is indeed any at all.

It is small wonder that someone comes to the conclusion of a Central Nervous System (CNS) stimulant when the arresting officer tells the examiner IN THE BEGINNING of the DRE evaluation that he has seized bags of cocaine, use paraphernalia and the evaluator is made privy to an admission of use of cocaine. So much of the DRE evaluation is truly subjective or subject to interpretation whether it is fudging or coloring.

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Why not move “Interview of the Officer” to step eleven (11), if one wanted to eliminate contextual bias? Should all of this not be based upon primarily the quasi-objective clues of the physical and psychomotor symptomology INDEPENDENT of the context?

To be clear, contextual bias is really confirmation bias which is the tendency to search for or interpret information in a way that confirms one’s preconceptions; this is related to the concept of cognitive dissonance.

In the body of knowledge referred to as cognitive forensic psychology, there is a well-researched and well-documented phenomenon known collectively as the “cold” biases. These “cold biases” come about due to ignoring relevant information (e.g. Neglect of probability), perhaps involve a decision or judgment being affected by irrelevant information (for example the “Framing effect” where the same problem receives different responses depending on how it is described) or giving excessive weight to an unimportant but salient feature of the problem (e.g., Anchoring).

Daniel Kahneman and Amos Tversky in 1972 introduced in a formalized manner a conceptual framework, the modern notion of cognitive bias. What initially began as their anecdotal observation of people’s inability to reason intuitively with the greater orders of magnitude (innumeracy) has developed into the accepted field of science. They designed a series of experiments that have been successfully replicated over the decades to record ways in which humans make decisions, evaluate judgments and form conclusions that differ from rational choice theory. Ultimately, the settled academic weight of the research concluded that human decision-making and conclusion formation could be explained in heuristics or a series of rules which are simple for the brain to compute, but introduce systematic errors as they may not be based upon reason and empirical data.

The “Framing Effect” is of particular note for DUI practitioners especially in a DUID context. Technically explained, the “Framing Effect” is when one seeks to explain an event, the understanding often depends on the frame referred to or the context. To clarify by way of example, the following is offered. If a friend rapidly closes and opens an eye, we will respond very differently depending on whether we attribute this to a purely “physical” frame (s/he blinked) or to a social frame (s/he winked). Though the former might result from a speck of dust (resulting in an involuntary and not particularly meaningful reaction), the latter would imply a voluntary and meaningful action (to convey infatuation, for example). Observers will read events seen as purely physical or within a frame of “nature” differently than those seen as occurring with social frames. But we do not look at an event and then “apply” a frame to it. Rather, individuals constantly project into the world around them the interpretive frames, even involuntarily or subconsciously, that allow them to make sense of it; we only shift frames (or realize that we have habitually applied a frame) when incongruity calls for a frame-shift. In other words, we only become aware of the frames that we always already use when something forces us to replace one frame with another.

As long as Step two (2) or “Interview with Officer” remains in the position that it is among the twelve (12), then DRE protocol will always be subject to criticism and perhaps proper exclusion from presentation in the Courtroom.
At The McShane Firm we have all gone through highly specialized DUI training and are able to effectively argue these issues in court.  We are ready to challenge DRE cases.



-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

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Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.

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