The Gathering Storm
Drug Recognition and Zero Tolerance Laws
Now that laws concerning
driving while under the influence of alcohol are firmly in
place in every state in America, having survived many of the
challenges to their constitutionality, lawmakers are now being
pushed to address drivers who may be under the influence of
drugs, prescription or otherwise. Already in Kansas there
are many officers who have received training to become so-called
"Drug Recognition Experts (DRE)".
Usually, a DRE officer
will be called in when a driver appears intoxicated, but passes
a breath test. DRE's are trained to follow a 12 step process
to evaluate whether a driver may be under the influence of
drugs. The DRE interviews the arresting officer, then contacts
the arrested driver and makes observations to determine whether
there may be a medical condition which would explain the driver's
behavior. He then will measure the size of the driver's pupils,
perform the Horizontal Gaze
Nystagmus test, do field sobriety testing, and measure
vital signs like blood pressure and pulse. Next is a "darkroom
examination" in which an instrument called a "pupilometer"
is used to measure the size of the driver's pupils under various
lighting conditions. The officer then moves the person's arms
to check their muscle tone and to look for "track marks"
where drugs may have been injected. The DRE will interview
the suspect, render and opinion and, if they believe it is
warranted, request a blood or urine test.
DRE is a relatively new
phenomenon. There will be many challenges to its use to convict
people of the crime of DUI. Police officers are not medical
doctors and frankly do not possess the training or skill to
accurately interpret medical conditions, take vital signs
and determine muscle rigidity and the causes thereof. There
are literally hundreds of explanations for why a person's
blood pressure, pulse or eyes may appear the way that they
do which have nothing to do with the consumption of drugs.
There may be drugs, including those that have been prescribed,
that cause these conditions, but do not impair the user to
the point that he or she cannot safely operate a car. There
are questions as to whether this type of pseudo-science is
even admissible in court as an "expert opinion".
One of the primary "tests" involved in the DRE battery
is the Horizontal Gaze Nystagmus (HGN) test. This test is
not even admissible in court in the state of Kansas because
it is considered so unreliable. The attorneys at our law firm
have received training in confronting DRE evidence and are
prepared to face this new challenge to our clients.
Drugs, or the metabolites
thereof, may remain in a person's blood or urine for days
or even weeks after their use. Long after the intoxicating
effect of the drug has worn off, remnants of its use may still
be detected by forensic testing. Thus, a driver might test
positive for marijuana but not be under the influence of it
while driving days later. Also, forensic toxicologists disagree
on what level of drug presence causes or indicates impairment.
Because of the difficulty in proving that a person was driving
under the influence of drugs based on DRE testimony and forensic
testing, legislators are moving to "Zero Tolerance"
laws which conveniently ignore the fact that a positive drug
test does not mean a person drove a car while impaired. Under
these laws, any detectable level of drug metabolite in a person's
blood or urine renders the driver guilty automatically of
DUI. Eleven states have already enacted such laws.
The area of drugged driving
is a gathering storm which promises to sweep up many safe
and innocent drivers in its wrath. To read more about the
troublesome subject of driving under the influence of drugs
and drug testing, read "You are Going
Directly to Jail", by Paul Armentano, a lawyer for
NORML.
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