You’re no doubt aware of “drugged driving.” While the name sounds like it would only pertain to people operating a vehicle with heroin or cocaine in their system, the list of substances that will find you in hot water is quite long. This article covers drugged driving, including prescription medication and marijuana DUI.
However, while these tests can show impairment by alcohol, they have very little correlation to impairment caused by controlled substances.
Due to the differences in how controlled substances (Norco, Xanax, Cannabis, Adderall, etc.) affect you, “experts” determined that three additional tests can be “beneficial” in determining impairment.
This was the beginning of the Drug Recognition Expert (“DRE”) training program.
What is a Drug Recognition Expert?
A Drug Recognition Expert (DRE) must attend numerous classes, pass several real-world tests, and receive continuing education in the world of drug recognition.
Many officers will not have this training and will solely rely on what they’ve heard may be the proper way to evaluate your performance on their field sobriety tests.
If an officer claims to be a DRE, it’s vitally important to ensure they’ve been properly trained and have performed well in the field.
To begin this investigation, they’ll ask you to do three tests; Vertical Gaze Nystagmus, Modified Romberg, Lack of Convergence.
“VGN” – A test similar to the HGN. An officer will test to see if your eyes “bounce” when moving up and down”
Lack of Convergence – Most people have difficulty crossing their eyes, especially on command. However, your inability to cross your eyes will result in a failure of this test. If you’re not wearing glasses or contacts, this can cause issues with your test.
Modified Romberg – To put it simply, a test to determine how you estimate the passage of time. You’ll tilt your head back, close your eyes, and count silently. Once you estimate 30 seconds has passed, open your eyes and say stop. If you’re off by more than five seconds, you’ll most likely fail this test.
These tests have specific “cues” (instances of designated errors) which an officer is trained to look for.
Therefore, only a DRE should be interpreting these field sobriety tests designed for controlled substance impairment.
If the officer hasn’t had the proper training, they shouldn’t be making a determination as to your impairment.
Introducing the Alere DDS 2 Mobile Test System. This test is administered in a manner similar to the roadside preliminary breath test. A driver will be asked to provide an oral fluid sample.
A DRE will request that an individual submits to this roadside test, with a civil infraction being issued for a refusal. From here, several scenarios can occur:
If you refuse the test, the officer will most likely arrest you based on their investigation, and the’ll request a search warrant for a blood test.
If you consent to the test and… The test comes back positive – you’ll most likely be arrested and a blood test will be ordered to confirm the roadside test. The test comes back negative – you may still be arrested based on the officer’s investigation. However, the officer must show probable cause for your arrest in light of a negative roadside test. Once again, a warrant will most likely be requested for a blood sample to confirm a negative roadside test.
If you don’t have a prescription for the substance that you consumed, the prosecutor has a much easier time proving your guilt.
ADVICE: Do not use someone else’s prescriptions. If you have a condition for which medication is needed, get a prescription. Without a valid prescription, proving your innocence becomes a much tougher battle.
What About My Prescription Medication and DUI?
Unfortunately, the officer will not care whether or not you have a prescription for the medication you took when it comes to a DUI.
If he/she determines that your use of the medication impaired your ability to operate a vehicle, you’ll be arrested for Operating While Intoxicated/Operating with the Presence of Drugs.
At this point, it will be up to your attorney to explain that you weren’t in fact impaired by the medication.
This can be proven through numerous channels.
For instance, your performance on the Standard Field Sobriety Tests was most likely captured on the officer’s In-Car video system.
Officers will often exaggerate your poor performance on these tests, so it’s crucial that your drug defense attorney knows how to evaluate the tests as well.
Moreover, an effective cross-examination of the DRE’s observations and impressions is important to uncover potential issues with the investigation.
How Reliable Is The Test?
The short answer is, reliable enough for prosecution if done correctly.