Police Drug Recognition Methods
Too Often Wrong to Trust in Trial
v1.0 - Jun 13, 1998
Originally published in Forensic Drug Abuse Advisor
Citation: Pittel SM. "Police Drug Recognition Methods; Too Often Wrong to Trust in Trial". Forensic Drug Abuse Advisor. Aug 1998;10:7.
A Pierce County, WA District Court recently held that routine tests used by police to identify drivers under the influence of drugs other than alcohol were too unreliable to meet scientific standards of proof. The Court held that trained Drug Recognition Experts (DRE's) could testify to findings that led them to believe that a driver was under the influence of a drug, but that they could not offer any opinions about the nature or extent of the alleged drug intoxication. Prosecutors dismissed charges pending against 36 drivers alleged to be under the influence of drugs following the District Court ruling in May. Prosecutor John Ladenberg said that charges may be refiled pending the results of an appeal to the State Supreme Court that is expected by the end of the year.
Although the Court found that police officers use of the Horizontal Gaze Nystagmus (HGN) test allowed them to correctly identify 77 percent of drivers with BAC's above 0.10 percent, they concluded that neither the HGN test or the totality of evidence obtained in the 12 step Drug Recognition process initiated by the Los Angeles Police Department met the Frye standard of "general acceptance by the scientific community" regarding drivers accused of drug intoxication. Their finding was based also on the inability of toxicological findings to determine when a particular drug was used and whether positive findings demonstrated that the driver was intoxicated at the time of arrest.
A more extensive challenge to the admissibility of DRE and field sobriety test findings for both drugs and alcohol has been filed in Dade County, FL. Expert witnesses whose testimony is cited in the appellate brief submitted by Public Defender Craig Trocino claim that the DRE tests are "absolutely worthless." Dr. Ronald Nowaczyk, for example, testified that Dade County DRE officers were able to correctly identify the type of drug used by a suspect in 87 percent of cases when the driver admitted taking a drug, but only 37 percent of the time when no admission was made. Dr. John Morgan, a Professor of Pharmacology and Diagnostics and Dr. Craig Smith, a Professor of Neuro-ophthalmology, similarly challenged the ability of DRE officers to rely on HGN findings to determine alcohol intoxication in uncontrolled roadside settings.
Dr. Smith also cast doubt on measures of pupil size that DRE's rely on to identify alleged users of stimulants and narcotics. He testified that pupil size could only be assessed accurately under optimal lighting conditions, that it is often difficult to estimate the size of the pupils in dark-skinned subjects, and that pupillary size varies with the distance of measurement. Commenting on nystagmus. Dr. Smith stated that "it's pretty clear" that about half of the population has jerkiness in their eyes when they look to the side regardless of their use of drugs or alcohol. He also concluded from his observations of police officers' attempts to measure HGN that they don't do it very well because they cannot accurately measure the angle of onset of nystagmus.
If the overwhelming medical evidence against the admissibility of DRE tests of intoxication are not strong enough to meet the Frye standard, the testimony of Dr. Jeffrey Janoffsky, an Assistant Professor of Psychiatry at The Johns Hopkins School of Medicine should win the day. Dr. Janoffsky's computer search of the world's medical literature revealed only one general article -- published in German -- that mentioned the DRE, and not a single peer reviewed publication on the DRE protocol or its validity in the identification of the drug or alcohol impaired driver.
Comment: The scientific and medical literature raise significant questions about the reliability and validity of field sobriety tests and toxicological evidence as proof of driving under the influence of drugs and alcohol. Yet the admissibility of these procedures have already been upheld by appellate courts in Arkansas, California, Colorado, Florida, Iowa, Minnesota, New York, Texas, Utah and in a Federal District Court in Nevada, and it is unlikely that either the Washington or Florida appeals will do much to change the status quo. Perhaps the forensic community can do its bit by volunteering their time to reduce the prohibitive costs of mounting the full scale challenge to these dubious practices that deserve to be examined in the full light of scientific evidence and the interests of justice.
"The scientific and medical literature raise significant questions about the reliability and validity of field sobriety tests and toxicological evidence as proof of driving under the influence of drugs and alcohol."
Although the Court found that police officers use of the Horizontal Gaze Nystagmus (HGN) test allowed them to correctly identify 77 percent of drivers with BAC's above 0.10 percent, they concluded that neither the HGN test or the totality of evidence obtained in the 12 step Drug Recognition process initiated by the Los Angeles Police Department met the Frye standard of "general acceptance by the scientific community" regarding drivers accused of drug intoxication. Their finding was based also on the inability of toxicological findings to determine when a particular drug was used and whether positive findings demonstrated that the driver was intoxicated at the time of arrest.
A more extensive challenge to the admissibility of DRE and field sobriety test findings for both drugs and alcohol has been filed in Dade County, FL. Expert witnesses whose testimony is cited in the appellate brief submitted by Public Defender Craig Trocino claim that the DRE tests are "absolutely worthless." Dr. Ronald Nowaczyk, for example, testified that Dade County DRE officers were able to correctly identify the type of drug used by a suspect in 87 percent of cases when the driver admitted taking a drug, but only 37 percent of the time when no admission was made. Dr. John Morgan, a Professor of Pharmacology and Diagnostics and Dr. Craig Smith, a Professor of Neuro-ophthalmology, similarly challenged the ability of DRE officers to rely on HGN findings to determine alcohol intoxication in uncontrolled roadside settings.
Dr. Smith also cast doubt on measures of pupil size that DRE's rely on to identify alleged users of stimulants and narcotics. He testified that pupil size could only be assessed accurately under optimal lighting conditions, that it is often difficult to estimate the size of the pupils in dark-skinned subjects, and that pupillary size varies with the distance of measurement. Commenting on nystagmus. Dr. Smith stated that "it's pretty clear" that about half of the population has jerkiness in their eyes when they look to the side regardless of their use of drugs or alcohol. He also concluded from his observations of police officers' attempts to measure HGN that they don't do it very well because they cannot accurately measure the angle of onset of nystagmus.
If the overwhelming medical evidence against the admissibility of DRE tests of intoxication are not strong enough to meet the Frye standard, the testimony of Dr. Jeffrey Janoffsky, an Assistant Professor of Psychiatry at The Johns Hopkins School of Medicine should win the day. Dr. Janoffsky's computer search of the world's medical literature revealed only one general article -- published in German -- that mentioned the DRE, and not a single peer reviewed publication on the DRE protocol or its validity in the identification of the drug or alcohol impaired driver.
Comment: The scientific and medical literature raise significant questions about the reliability and validity of field sobriety tests and toxicological evidence as proof of driving under the influence of drugs and alcohol. Yet the admissibility of these procedures have already been upheld by appellate courts in Arkansas, California, Colorado, Florida, Iowa, Minnesota, New York, Texas, Utah and in a Federal District Court in Nevada, and it is unlikely that either the Washington or Florida appeals will do much to change the status quo. Perhaps the forensic community can do its bit by volunteering their time to reduce the prohibitive costs of mounting the full scale challenge to these dubious practices that deserve to be examined in the full light of scientific evidence and the interests of justice.