Since Oregon legalized recreational marijuana use in 2014, there has been a significant uptick in the number of non-alcohol DUI cases throughout the state. As expected, defense attorneys like us see prosecutors relying more and more on the opinion of the Drug Recognition Expert (DRE) during non-alcohol DUI trials. Drug Recognition Experts are individuals—almost all of whom are law enforcement officers—who are trained and licensed to determine whether a driver has non-alcohol intoxicants in their system. When an individual is charged with a non-alcohol DUI, the prosecutor relies on the testimony of the DRE to prove that an individual was intoxicated while driving. The testimony from a DRE appears convincing to juries and judges alike, but upon closer examination, there are significant flaws in the DRE Program and the underlying science that undermine the reliability of a DRE’s opinion. By highlighting these flaws in the training and underlying science in the DRE Program at trial, criminal defense attorneys can better represent their clients charged with marijuana and other non-alcohol DUIs.
With that said, let us consider how a DRE becomes involved in a non-alcohol DUI investigation and how a DRE reaches his or her opinion. After a police officer starts a traffic stop and develops a suspicion that the driver is intoxicated, the officer will ask if the driver will do Standardized Field Sobriety Tests (SFSTs). We discuss SFSTs in another post here. After conducting the three primary SFSTs, if an officer believes that the driver is more intoxicated than the SFSTs let on, he or she will often try a fourth Field Sobriety Test called the Modified Romberg test. The Modified Romberg test asks the driver to close their eyes, tilt their head back, and count to 30 in their head to measure the passage of 30 seconds. The goal of this test is to determine whether the driver’s ability to measure the passage of time is impaired. For example, if the driver says that 30 seconds ended, but the actual time that passed was closer to 45 seconds, then the police officer will likely conclude that the person’s passage of time is impaired and that the person may be under the influence of non-alcohol drugs, like marijuana. From there, the officer will typically arrest the driver, ask the driver to take a Breath Test, and call in a DRE.
what should you do if you are arrested on suspicion of a marijuana DUII, or a drug related DUII? First, once arrested for DUII, it is generally in your best interest to take the breath test. In most cases, the consequences of refusing a breath test are worse than the consequences of failing a breath test. Second, if the arresting officer asks you to provide a urine sample, you should agree to provide a urine sample. Like the breath test, the consequences for refusing to provide a urine sample are worse than providing a “dirty ” – particularly as far as your license is concerned. Third, if you are asked to participate in a Drug Recognition Evaluation you should politely decline. You are not required to agree to participate in a Drug Recognition Evaluation and an officer cannot force you to participate. Unlike refusing a breath test or urine test, refusing a Drug Recognition Evaluation has no negative consequences for your license. The DRE is almost universally beneficial to the State and almost universally makes defending a drug or marijuana DUII more difficult (though not impossible).
A DRE is beneficial to the State because the police officer performing the test will almost always reach the conclusion that you are “impaired” by the controlled substance that: (a) was found in your car or on your person, (b) you admitted that you had taken recently, or (c) suspected by the arresting officer. If that seems to be an unfair standard, then you are not alone – it is unfair. DRE standards are inherently biased in favor of the officer “confirming” the suspicion of impairment. Though there are some DRE Officers that honestly try to be fair, there are plenty that seem to consistently confirm “drug impairment” and fail to recognize other medical conditions. Put simply, it is almost a certainty that the information obtained during a Drug Recognition Evaluation will help the State more than it will help you.
If you have been arrested for a Drug related DUII case, you need an attorney who is experienced in handling complex DUII cases. Our attorneys have deep experience and have handled thousands of criminal cases, including drug related DUII cases. Whether you were just arrested and need some immediate advice, or if you are looking for an attorney to defend you in court, give use a call. We can help.