Potential changes in the DEC/DRE program are discussed
I have blogged before on the Drug Evaluation and Classification (DEC) Program (aka the Drug Recognition Expert Pr0gram):
- What is the relevant scientific community for the Drug Recognition Expert?
- A Pharmacologist and a DRE
- Score one for Science: The DRE program is found to be unreliable and not admissible
- Court Rules that DRE Protocol is Inadmissible as Evidence
- The Problem with Drug Recognition Expert and Why it is Designed for Failure
- Attorney McShane to Present at the ACS National Meeting in Anaheim
- Nearly 70 percent of Americans are on Prescription Drugs
For the second year in a row, I attended the SOFT/AAFS Drugs & Driving Committee meeting at the annual American Academy of Forensic Science meeting held in Seattle, WA. I wanted to thank the committee and its members for allowing criminal defense attorneys to attend the meeting. It is a hallmark of science to be open. Being open means allowing all stakeholders in the criminal justice system to attend the meetings. Criminal defense attorneys are stakeholders as we are the very last step in the quality assurance chain in the criminal justice system. Whatever preconceived notions that my colleagues might have about SOFT/AAFS Drugs & Driving Committee meeting, they are decidedly unfounded in my opinion.
In the meeting, there was an update of the DEC/DRE program offered by Chuck Hayes of the International Association of the Chiefs of Police that lead to quite a bit of discussion and deserves some blog space here and some thought.
1. The IACP’s DEC/DRE Technical Advisory Panel (TAP) will not be implementing a new drug category that will place the various new designer drugs (i.e., synthetic cannabinoids, synthetic cathinones, and synthetic hallucinogens) into additional categories. Instead, the DEC/DRE will put the synthetic cannabinoids into the cannabis category, the synthetic cathinones will be placed into the stimulant category, and the synthetic hallucinogens were not discussed. It is a curious choice as the largely anecdotal reports from poison control centers report that alleged users of synthetic cathinones experience a high stimulant effect followed by depressant effect. However, it was acknowledged that this decision to not expand the 7 drug categories was subject to later review.
2. West Virginia became the last of the 50 states to have a DEC/DRE program this year. The state of Virginia has one active DRE officer. The state of Delaware has only 3. There is a announced effort to put more ARIDE and DRE trained officers on the street.
3. The NHTSA goal of synchronicity to make all of the statements in the various NHTSA impairment curriculum have consistent language is complete.
4. In the future DEC/DRE instruction guides, the sections involving physiology and narcotic analgesics will be re-written. The TAP committee will help in the re-write.
5. There will be a revision in the DEC/DRE program that will allow the traditional 12th step (the collection of a chemical test) to happen earlier. There is even a push to move the collection of a chemical test first. From a legal point-of-view, nothing I can see prohibits that re-arrangement from happening, the person undergoing the DRE evaluation is already under arrest. As probable cause cannot be justified from data or information gathered post-arrest, there is no reason that the toxicological collection cannot be first. From a practical point-of-view, by moving it first, it may discourage people from completing the DRE. However, from a scientific point-of-view, this re-arrangement makes great sense to me. The crime is impairment due to drugs at the time of driving. Knowing that non-ethanol results cannot be subjected to retrograde extrapolation legitimately, it is essential that the collection of the biological sample be taken as soon as possible to the time of driving. The more time that goes by, the less relevant the analytical chemistry result becomes. In addition, as we know from the pharmacokinetic study of some drugs, there is a really rapid elimination of certain pharmacodynamically active drugs in the blood such as the case of delta-9-tetrahydrocannabinol as seen below. As we can see below, in a relatively short amount of time (about a half hour), the delta-9-tetrahydrocannabinol will be very much lower. If you want to punish impaired driving, not simply drug use, then this change makes total sense.
6. The most interesting discussion in the meeting concerned the DEC/DRE evaluator and the drug category determination by the officers. There was some discussion about how in some cases and in some states that according to the National Sobriety Testing Resource Center (NSTRC) and the Drug Recognition Expert Data System data, the “correct” DRE call as to just drug category as determined by the results of the analytical chemistry (in blood or urine) was poor. It appears based upon comments that the DEC/DRE TAP wanted to discus the continued value of having DEC/DRE officers make a particular call as to impairment BY A CERTAIN DRUG CATEGORY. It seems as if the argument to remove that step is one that recognizes that just as an analytical chemistry result alone cannot determine impairment, then neither can a DEC/DRE evaluation. The “call” of impairment should be a combination of the two. This would transform the DEC/DRE officer into a symptomology recorder and mere collector of evidence that would later be interpreted in combination with the analytical chemistry result by someone who is more rigorously trained in pharmacology such as a toxicologist. From a scientific point-of-view, I agree with this. Quite frankly, I never understood why the well-intentioned, but under-trained officer’s opinion as to impairment BY A CERTAIN DRUG CATEGORY is ever relevant at all. I think that DEC/DRE officers should be constrained to perform that investigative function of evidence gatherer and record observations. Currently, all the drug category call does is provide inappropriate expert opinion evidence (that should be reserved to a classically trained expert who knows pharmacology) and provide needless cross-examination fodder on the distracting issue over the accuracy of the officer’s opinion of drug category as opposed to the key issue of impairment. Without any doubt, there is no support for this change by IACP. None at all. These silly stats appear to be way too personal for the DEC/DRE to part with.
So, in conclusion, it seems as if there are some potential changes coming to the IACP’s DEC/DRE program. Some good, some bad. Only time will tell what will happen.