Legal Articles

Drug Recognition Evaluations

J. Bradley Klepper
Attorney at Law

Drug Recognition Evaluations
Let’s be totally upfront about this. I am vehemently opposed to anyone operating any type of vehicle under the influence of drugs or alcohol. I really can’t express how strongly I feel about this. Having a license is a privilege – not a right.

I am also a big believer in the Constitution and due process. The Fourteenth Amendment to the US Constitution says, in essence, that the States shall not deprive a person of life, liberty or property without due process of law. This means that the government must follow fair procedures before depriving a person of life, liberty or property. In other words, everyone gets an opportunity to be heard and a decision made by a neutral party.

All this brings me to the reason I am writing this article. On April 20th of this year (coincidence with the “4/20 holiday”?), several states began conducting drug recognition evaluations at various locations. In short, drivers were taken out of their vehicles and a DRE was conducted. Numerous drivers were cited under 392.4(a) and were placed out of service based solely on the opinion of the person conducting the DRE and in spite of evidence to the contrary.

Not surprisingly, I received a call from a carrier the following day. One of their drivers had been placed out of service following a DRE. Here is where it gets interesting.

The driver had pulled into a weight station when he was motioned to enter the scale house. The driver exited the vehicle with his paperwork and license. Upon entering the scale house a female officer took the driver to administer a series of tests, including field sobriety tests and tests of his vital signs. In the course of this the officer took him to a darkened bathroom to perform pupil response tests. The officer used a sphygmomanometer to test his blood pressure, and had him roll up his shirt sleeves and pant legs to inspect his arms and legs for sign of drug injections. NO INJECTION SITES WERE FOUND.

The driver did not like to be touched, and the invasive personal nature of the testing made him uncomfortable, so he requested a breath or blood test instead. The officer performed a breathalyzer, which read 0.0 or NEGATIVE. The officer took a urine sample, and tested it at the scene. It also came back NEGATIVE.
A K-9 unit was led aroun

d the truck and DID NOT ALERT. The officer kept asking the driver if he was on drugs (which the driver denied) and performing various tests. The entire process took between 1-3 hours and despite the negative breathalyzer, urine test, lack of drug injection sites and failure of a K-9 Unit to alert to his truck the driver was placed out of service for 24 hours for an alleged violation 392.4(a). The out of service was solely based on the opinion of the officer conducting the Drug Recognition Evaluation.

When the carrier learned of the alleged 392.4(a) violation they reached out to enforcement seeking some explanation as all the tests had come back NEGATIVE for the presence of drugs. The carrier was informed by enforcement that they were sending off a second urine sample for testing but regardless of the results of that test they were standing by the opinion of the officer conducting the DRE that the driver was impaired by drugs/alcohol and would not be removing the alleged violation.

This is not the first time a DRE evaluation has been used. However, it is the first time I have run across one being used to evaluate a CMV driver.

As background, the Drug Recognition Evaluation (“DRE”) program was created by a couple of L.A. Police officers who felt that medical doctors did not receive sufficient training in the sign of drug impairment for street drugs and therefore could not offer judgment about a suspect’s condition.

In order to become qualified to perform a DRE an officer must attend a 2 day Preliminary Training Course. Upon completion of the course the office may take the 7 day DRE course. The course covers the 12 steps of the DRE procedure and the seven categories of drugs covered in the manual.

Due to limited space, I am not going to list all of the 12 steps of the evaluation or the seven categories covered (if you really want to know, shoot me an email.). However, the evaluation does include a breath alcohol test, eye exams, divided attention tests, dark room examination of pupils, muscle tone, potential injection sites, opinion of the evaluator and a toxicology examination. All of these test are conducted by an officer, not a medical professional, with 9 days training.

For what it is worth, most medical doctors believe that without formal medical training the person conducting the evaluation is not qualified to make the determination that a person is under the influence of drugs or alcohol. In addition, factors other than drug or alcohol use can impact the outcome of the tests being performed. I don’t think anyone would dispute that the stress of the evaluation environment would be enough to elevate a person’s heart rate, blood pressure, temperature and can even impact a person’s muscle tone (under stress muscles tend to be firmer).

The point I am trying to make is the person conducting the Drug Recognition Evaluation may lack the scientific and medical training required for the DRE to be relevant and reliable enough to be admitted under Rule of Evidence 702. In fact, several state courts have case law concerning the admissibility of DRE evidence. These include Texas, Minnesota, Florida, Oregon and Washington.

The rub of all of this is that if no citation was issued there is not court of law in which a driver can challenge the validity of the evaluation. Instead, the only means available is to file a DataQ challenge. Needless to say, there is an absence of a neutral party making a decision on the matter. In my opinion, this creates a due process issue.

Again, I am opposed to anyone operating any type of vehicle under the influence of drugs or alcohol; however, I am also a big believer in due process. While I think the DRE can have value I think that it is not reliable enough to be solely relied upon in the face of evidence to the contrary.

J. Bradley Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers.Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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