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In The News

Monday, May 21, 2018

The DRE As A Weapon: How the Government’s Own Evidence Can Be Used Against It

By Michael Nichols
Categories: Drugged Driving

The difference between “a good effort” and a winning case often comes down to strategy. It can be so frustrating to see and hear the prosecutors fall face forward into the vat of kool aid that is law enforcement’s “opinion” about why a person is guilty. But just like a good judo fighter uses the weight of his opponent against him, so does a good Drugged Driving Attorney.

In one case, the prosecutor had a big-bad Drug Recognition Evaluator (DRE – or -- as they like to call them: “Drug Recognition Expert”). There was just one problem: there was no way that he got it right. The 1st clue? He said that the subject was “impaired” by a central nervous stimulant and a central nervous system depressant.

Let’s break that down: a stimulant – something that gets you “fired up;” gives you energy; makes you anxious. But that’s … not … all: a central nervous depressant – something that “bring you down;” depletes your energy; makes you relaxed.

Do you see the problem?

Apparently, law enforcement did not see the problem.

Let us break this down. A stimulant and a depressant have the exact opposite effect on the nervous system. I consulted with many medical doctors and pharmacologists/toxicologists about these issues (and this case). I also hired a former police officer, who holds a Ph.D. in the horizontal gaze nystagmus phenomenon. Here is what they tell me almost uniformly: police officers cannot possibly be trained to make a diagnosis in 30 minutes on a roadside or in a police station that a human being is “impaired” by a drug category.

The DRE protocol is based on training that turns police officers into doctors. It is approximately 72 hours. The officers are ultimately trained to be able to give an opinion that 1 or more of 7 categories of drugs are on-board a suspected “drugged driver” and that the person is impaired – essentially based on hearsay statements by the arresting officer. That is not all: the officer also incorporates into his DRE opinion the performance by the individual suspect on standardized field sobriety tests (SFSTs). These SFSTs are: the aforementioned horizontal gaze nystagmus (HGN) test; the Walk and Turn and the One Leg Stand (WAT and OLS).

NHTSA’s own studies, including the 2015 study on marijuana impairment, has never correlated the SFST’s to drug impairment.

So what do we do about it? There is such a thing as a “Daubert” challenge. The Daubert challenge can go one of two directions: the lawyer opposing specific testimony challenges the scientific grounds or, the lawyer challenges the scientific grounds to the specific case facts. We call this in Michigan: the application of the opinion to the facts of the case.

In a recent case in Washtenaw County, a jury was seated for a trial that was set to start about a month later. The young assistant prosecutor was provided a report by Dr. Lance Platt that pointed out deficiencies in the manner in which the DRE officer applied the alleged principles and methods of DRE to the facts of the case. Part of the concern was that the officer predicted something was in her system and impairing the subject yet, “the something” was never found in her system.

So, in response, we moved as a counter-motion to exclude any opinion testimony from the DRE. We pointed out that we were going to let the prosecutor attempt to lay the foundation in front of the jury but since she picked the fight: we had not only an answer but a motion to exclude of our own.

The judge agreed with us.

The prosecutor was then left with testimony by the arresting officer of “speed changes” on US 23 and failure by the subject of the so-called SFSTs (remember – these have only been validated for predicting alcohol levels and have never been correlated with drugs in a person’s system. Oh yeah, the citizen-accused’s doctor was going to testify that what was found in her blood is exactly what he expected in the exact same amount.

Finally, the prosecutor dismissed the case.

The lesson here is that the DRE is a dangerous tool for prosecutors in the newest prosecutorial strategy: drugged driving. However, the lawyer never has to fear what a DRE is going to say in a courtroom IF the lawyer is willing to take some time to become immersed in what assumptions and fallacies are behind the entire methodology of the DRE protocol. Ultimately, when the accused citizen either looks sober or has an explanation for any anomaly in her mental and physical condition, the citizen has a fighting chance. First and foremost, though, is to get up to date on the law and the science.

Mike Nichols is the author of the OWI Manual for Michigan Lawyers by West Publishing and is the co-founder of the Nichols Law Firm, PLLC. Nichols is on the faculty of the National College for DUI Defense as well as the Rules and Laws Committee of the Criminal Defense Attorneys of Michigan (CDAM).

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.