Drug Recognition Process in Georgia

The hope of the police is that these DEC evaluations can be used in court to identify impairment from drugs even if the person refuses all blood and urine testing. Absent a blood or urine test or an admission of recent drug use, “opinion” testimony must be based upon something more than a wild guess or speculation. Ironically, NHTSA designed the DEC Program for post-arrest investigation, to be done in a carefully controlled environment (as opposed to “field” evaluation).

Numerous “task force” officers across America have taken IACP-approved DEC classes to enable them to identify a subject impaired by drugs. IACP is the acronym for International Association of Chiefs of Police. Sometimes referred to as “DREs” or “DRTs” (drug recognition experts or drug recognition technicians), these officers utilize a series of simple evaluations and observations to help them identify individuals impaired by drugs.

Interestingly, even the IACP recognizes the limitations of the DEC program. For example, the agency recognizes that DEC-trained officers cannot identify exactly what drug (or drugs) a person is “on.” Only one of the seven broad “categories” listed might be identified, if the person has been fully trained and certified. IACP has emphasized the need for an analytical chemical test (such as a GC-MS test) to confirm the officer’s “suspicions” about drug use. This is because anything less than a chemical test is just “an educated GUESS”. The law does not support guesswork in criminal trials, because the State must prove guilt BEYOND A REASONABLE DOUBT.

The DEC process includes an alcohol screening evaluation on a roadside screening device such as an Alco-Sensor. It also includes administering the NHTSA standardized field sobriety tests.

The 12 components of the DEC process include:

1. A breath alcohol screening test to determine an estimated BAC level;
2. Interviewing the arresting officer, to see what was seen or heard in earlier contact;
3. The preliminary examination, including questions to determine pre-existing injury, or the existence of a health or mental condition that may mimic drug use;
4. Eye examination, using both horizontal and vertical nystagmus tests, plus checking to see if the eyes converge properly;
5. Divided attention tests, including walk and turn, one-leg stand, finger to nose and the Romberg balance test;
6. Vital signs examination, checking pulse rate, blood pressure and temperature;
7. Dark room examination, including measurement of pupil size, reaction of the eyes to light and tell-tale evidence of ingestion of drugs by nose or by mouth;
8. Examination of muscle tone — Depending on the type of drug used, muscles can be rigid or flaccid. Examination is performed from the bicep to the wrist;
9. Looking for injection sites, (i.e., needle marks or “tracks”) on the arms, neck, legs, etc.;
10. Questioning the suspect — After giving all the required “constitutional and statutory” advisements, ask the subject questions concerning the drug or drugs suspected to be involved;
11. The opinion of the DEC evaluator is used to summarize the “findings” and to fill out reports designed to document the observed facts which support the officer’s conclusions; and
12. A toxicological examination (blood test) to provide scientific, admissible evidence to substantiate the DEC evaluator’s conclusions. (This assumes that a person submits to the test offered, where an option to NOT do so exists.)

A properly equipped DEC officer will have these items with him or her:

1. blood pressure kit;
2. an electronic aneroid thermometer;
3. a pupillometer (to measure the size of the subject’s pupils);
4. a preliminary alcohol screening device, such as an Alco-Sensor; and
5. access to a dark room.

The DEC protocol teaches officers to not only look for either contraband (illegal) or controlled substances (i.e., those drugs which cannot be purchased without a prescription), but to take note of over-the-counter medications that the subject has ingested which may have caused or contributed to the suspect’s impairment. Certain allergy and cold medicines have been determined by the American Medical Association and FDA to be particularly unsafe for persons who are driving. These include Benadryl, Allerdryl, Contac Severe Cold Formula, Vicks Nyquil, Trifed, Phenergan and others.

Although the use of DEC evaluations by “DRE” officers requires extensive training, this is a wave of the future. Decisions in several states have upheld DEC evaluations by DRE officers, utilizing both a Daubert analysis and a Frye analysis of admissibility. Daubert and Frye are well-known federal cases that have carved out the rules of when and after what type of judicial review scientific evidence can be admitted at a trial.

About 45 of the 50 states follow one standard or the other. See State v. Klawitter, 518 N.W.2d 577 (Minn. 1994) [using a Daubert analysis] and People v. Quinn, 580 N.Y.S.2d 818 (Suffolk County Dist. Ct. 1991), rev’d and remanded on other grounds, 607 N.Y.S.2d 534 (Sup. Ct. App. Term 1993) [using a Frye analysis]. See State v. Sampson, 6 P.3d 543 (Or.App. 2000) for a fascinating analysis of prior DEC admissibility in various states.

As with other “pro-prosecution” types of “scientific” evidence, expect courts to overrule objections to DEC evaluations based on highly discretionary trial court review of “proper” evidence. The need of the State to “make our highways safe” will likely outweigh the “voodoo” nature of the DEC “opinion” evidence. The best hope for the defense is that a fair-minded judge will look at the highly irregular nature of this evidence and declare “the State has not laid a proper foundation for this scientific evidence.Therefore, this evidence is excluded.”