Canada is preparing for the decriminalization of marijuana on October 17. Along with it, the Drug Recognition Expert (DRE) program created here in the States will also come into effect. I recently trained lawyers in Canada on the DRE program and as I explained to them, just because it has already been used here, does not necessarily make it any good.

The DRE Program was developed by the National Highway Traffic Safety Administration (NHTSA), working together with the Los Angeles Police
Department, in the early 1970s. Today, it is used to identify drivers who are impaired, determine whether the impairment is due to drugs or a medical condition and if it is a drug, the category or class of drug(s) causing the impairment. Over the last few months, officers across Canada have been undergoing training to become DREs. Once they are qualified, their testimony will be accepted as expert opinion and their conclusions will be accepted in court as evidence of impairment by whatever drug or drugs they determine. The problem is, the training needed to become a DRE consists of a classroom course lasting one to two weeks followed by a one-week field course. In effect, they can become qualified pharmacologists in a couple of weeks. Ask a pharmacologist how long it took them to get their degree to allow them to make these same decisions, minus an arrest!

And yet DREs finish the course with what is effectively a medical degree – after two weeks. I was concerned when Canada accepted this program. My concern now is that Canadian citizens and the lawyers representing them need to be aware of what’s going on.

The “Drug Whisperer”

Say you and your buddy are driving around and an officer, who is a trained DRE, pulls you over. The officer suspects you are intoxicated so they
administer a breathalyzer. Guess what? It’s zero. The DRE is thinking, “I know that person is impaired. I’m not sure what it is but I know it’s something other than alcohol.” That determination by the DRE is enough to take you back to jail for further tests and even later give you a DUI. So even if you test negative for the presence of a drug you could still have to fight the charges. It happened in the United States and it could be happening soon in Canada.

An officer, trained as a drug recognition expert in Cobb County, Georgia, got the nickname the “Drug
Whisperer” after he arrested five people on suspicion of DUI despite blood tests showing no traces of marijuana. Three of those people were jailed so they were put in the difficult position of having to prove they were innocent. They were later released and went on to sue the department for wrongful arrest but the idea that someone could be locked up without a single test showing the presence of a drug is terrifying.

The 12-step Drug Recognition Expert evaluation

Drug recognition experts are trained to follow a 12-part process to determine drug impairment. My work as an impaired driving consultant involves investigating whether or not this procedure was followed. The 12 steps are:

1. A breath test to rule out alcohol as the cause of impairment
2. Interview of the arresting officer
3. Preliminary examination, which includes one of three pulse checks
4. Eye examination (including horizontal and vertical gaze nystagmus
5. Divided attention tests (balance and finger to nose tests)
6. Clinical indicators examination (blood pressure test, temperature, and second pulse test
7. Darkroom examination of pupil sizes
8. Muscle tone examinations
9. Search for and examination of injection sites
10. Statements and interview of the subject
11. Opinion of the Drug Recognition Expert
12. Toxicological sample (urine, saliva, or blood) that must support the officer’s claim and show impairment

A lot of the time, DREs confuse some of the signs of impairment with the effects of prescribed medication and the underlying symptoms of the reason why the person takes the medication. Considering how many people take some type of prescribed or over the counter medication, what would happen if they were not allowed to take it if they wanted to drive? Take, for instance, high blood pressure medication. High blood pressure indicates to a DRE stimulants, hallucinogens, PCP, or cannabis. Low blood pressure, for that matter, could suggest the use of a CNS depressant, narcotic or inhalant. So people on blood pressure medication or suffering from hypertension could be damned either way and most likely will be.

Toxicology

A major issue for the Canadian police is how they are going to handle toxicology under the new DRE system. This is a big deal and it’s going to be expensive. It can cost police departments hundreds of dollars or more for each test, even if the results come back negative. And it’s not just the government that could be faced with a huge bill. Drivers could potentially have to spend thousands of dollars to prove their innocence if they are wrongfully charged with DUI.

In California, police pulled a man over for driving erratically. They made him carry out roadside field sobriety tests and decided to take him back to the jail because they believed he was under the effects of a dug. The driver agreed to a blood test and when the results came back, they were negative for any illicit drugs but they did test positive for caffeine. Coffee is a stimulant but it’s not a controlled substance.

Police still suspected him of having a drug in his system, however, and they eventually charged him with DUI. The charge was later dropped but not before the man spent a lot of money fighting the charge. So there you go, that triple latte could end up costing you a grand or way more.

Cause for concern

A major criticism of the Drug Recognition Expert program is that police could arrest someone for anything if they wanted to. My concern, however, is that important determinations about whether or not a person is impaired by a drug are going to be made by people who simply are not qualified. There are no peer-reviewed and published studies, no scientific studies that support the DRE program using the 7 recognized drug categories and tactics. Not one. And yet it has been and will continue to be used in North America to make potentially life-changing decisions.

There is nothing to prevent situations like the Drug Whisperer and the man charged despite only having traces of caffeine in his system from happening again and lawyers should be aware of how they can challenge the failings of the DRE program.