banner of Priorities and Strategies for Improving the Investigation, Use of Toxicology Results, and Prosecution of Drug-Impaired Driving Cases

Issue #1:  What are the major problems encountered in processing a drug-impaired driving case through the criminal justice system?

3.  There is often poor documentation of the signs and symptoms of drug intoxication that are needed to make a convincing case in court.

Generating a suspicion of drug impairment is only the first step in developing a DUID case that can withstand legal challenges. Ideally, drivers suspected of driving under the influence are subjected to a variety of tests that document the effects of the intoxicants. The behavioral effects of alcohol on driving is well characterized in the literature. For instance, in the case of alcohol, subjects are generally given rudimentary psychomotor tests, including the NHTSA-recommended standardized field sobriety test (SFST) panel,5 This panel documents impairment in the divided attention skills necessary for safe driving, as well as evidence of central nervous system depression. Given the wealth of evidence on the subject, officers have also become well versed in documenting other evidence of alcohol use such as bloodshot eyes, odor of alcohol on the breath, slurred speech, difficulties in extracting the driver’s license, and problems with balance.. moreover, the effects of alcohol impairment on driving are generally well understood by both judges and juries.

As collecting evidence of impairment is the first step in the adjudication process irrespective of whether alcohol or drugs are involved, officers need to be thoroughly trained in the use of the validated field sobriety test battery. Many officers do not follow the validated SFST approach, which jeopardizes the ability to effectively prosecute the case. Agencies need to be encouraged to train and certify law enforcement officers in SFST methodologies and to periodically refresh and update that training as it applies to all intoxicants.

In the case of drug-impaired driving, officers may not recognize the significance of many signs associated with drug use, and most are not trained to collect other evidence, such as pulse and blood pressure, muscle tone, sensitivity of the eyes to changes in light, and other indications of drug use (licit or illicit drugs), which go beyond casual observation.

Recent data from Washington State6 suggests that as many as 40 percent of alcohol-impaired drivers may be additionally impaired by drug use. As a first step, this panel recommends that agencies should send a DRE-qualified officer to investigate all serious-injury crashes, vehicular assaults, and vehicular homicides. Using DREs in this way to proactively investigate drug use by drivers, rather than simply assessing and documenting overt drug impairment observed by less expert officers, will assist in raising the profile of the DUID issue.

The Drug Recognition Expert program, established with support of NHTSA in 1988 and managed by the International Association of Chiefs of Police (IACP), is a structured program of assessment of suspected impaired individuals that systematically collects and documents these and other symptoms of drug and impairment, and provides a framework for the interpretation of this evidence, indicating the class or classes of drugs most likely to be responsible. In doing so it establishes the necessary probable cause for collection of a biological sample for toxicological testing, completing the major elements needed for a robust DUID prosecution.

In light of these considerations, the panel recommends that:

  • Law enforcement agencies should be encouraged to adopt the DRE program, and to use it in conjunction with toxicological testing to develop sound DUID cases for prosecution.
  • NHTSA and other federal agencies with an interest in drug enforcement and control should also continue to support work on the Standardized Field Sobriety Test methodology to refine and further validate it for documenting drug and alcohol impairment.

4.  Existing DRE programs are underused, understaffed, and not well coordinated.

The DRE program is the most effective tool currently available to law enforcement officers for the documentation of behavior and impairment in drug-impaired drivers. To date, the DRE program exists in 45 States, and in many of these States it is not adequately supported with training, administrative or toxicological resources. DREs also need to use their skills regularly to maintain proficiency, to receive training concerning changes in the program, and stay informed about emerging patterns of drug use in their communities. They also need the opportunity to testify regularly otherwise they lose confidence in their abilities to practice what they learned in training.

DRE utilization can be increased by use of State traffic safety funds for enforcement emphasis programs. Paying for salaries for multi-agency emphasis operations and for overtime for interagency collaborations promotes the use of DREs, and the DREs act as ambassadors for the program, spreading the word about the extent of drug-impaired driving and helping to make it a public safety priority.

In practice, many agencies see the DRE training school as the beginning and end of the DRE’s training. Agency managers looking after their agency’s bottom line do not view DRE officers as a shared resource between jurisdictions. This limits DRE availability, and reduces the officer’s opportunity to maintain proficiency. Many law enforcement officers do not know how to find out if a DRE is available, do not understand the DRE process or program, and do not request DRE involvement in their cases. Other law enforcement officers often view the DRE as coming in and “taking away their case.” Additionally, poor coordination between agencies often means that officers on duty, at night, do not know how to find out if a DRE is available.

In light of these considerations, the panel recommends that:

  • The Technical Advisory Panel (TAP) of the Highway Safety Committee of IACP that oversees the DRE program needs to develop some “best practices” recommendations to maximize the use of existing DRE officers, and for the management of State programs. IACP should also develop evidence showing outcome measures for the implementation of DRE and what value it brings to the successful prosecution of DUID cases.
  • DRE coordinators need to market their program to local law enforcement agencies through roll-call training, participation in basic law enforcement academies, meeting with accident reconstruction technicians and traffic detectives, creating newsletters, attending traffic safety conferences, and breath testing or other impaired-driver training. In addition, there also needs to be an emphasis on the specific role of the DRE program. One important aim of this program is to assist the arresting officer rather than coming in and taking over their case.
  • State Highway Traffic Safety Offices need to be educated about the DUID problem, and encouraged to support and fund DRE programs.
  • Within a State, agencies participating in DRE programs should develop a mechanism for sharing DRE resources, using uniform criteria for calling out a DRE, and using centralized law enforcement communications systems for inter-agency deployment of available DRE resources.
  • NHTSA should pursue means to support and enhance existing DRE programs, or should provide incentives to the States to support and expand their own programs. It is essential to the future success of the DRE program that it is seen as a routine tool for law enforcement, and a valuable part of every DUID arrest through effective prosecution and adjudication.

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5 Stuster J., Development of a Standardized Field Sobriety Test Training Management System. 2001. DOT HS 809 400. National Highway Traffic Safety Administration, Washington, DC.

6 Changes in Drug and Alcohol Use in Fatally Injured Drivers in Washington State 1992-2002. Schwilke, E.S., Dos Santos, I., and Logan, B.K.. J Forensic Sciences 2005.