The Drug Recognition Expert Analysis

As a criminal defense attorney, it is seldom that I have the opportunity to give people legal advice before they take some kind of action. Generally, if you’re calling me it is because in some way the wheels are already off the bus a bit and you need some guidance as to how to mitigate damages.

At the same time, there are a couple areas where I am able to give advice. And one I am absolutely steadfast about is not participating in the drug recognition expert analysis.

So first let’s talk about what this whole DRE thing is all about.

So, generally what happens is somebody is pulled over for some kind of traffic infraction. They are processed for DWI in the traditional fashion, but alcohol is clearly not the issue, or at the very least not the entire issue, and law enforcement wants to make a determination as what is in this person’s system that is making them act the way they are.

Well, there’s only one way to get that done, and it’s certainly not roadside. They need to get this person to a different place, and that’s why they already have to place you under arrest.

So they place you under arrest, take you, generally, to a law enforcement building, sometimes to the hospital, but generally to a law enforcement building, and go through the protocol of advising your right to a blood draw, whether that’s at the hospital, or even at the sheriff’s department at some point.

But then they ask you, “Would you like to participate in our test?” They go through a pretty exhaustive exam about you from head to toe, from your cognitive end, from your physical end, from your emotional end. Then they say what is impairing you and take you to a magistrate and set a bond. Even prescription drugs more than illicit drugs have become the standard bearer with respect to what is causing people to get themselves in trouble.

Here’s why I don’t want anybody participating in the DRE. The first reason is, there’s really no return on investment. The DRE analysis is done post arrest, so effectively this is after law enforcement has already deemed probable cause to exist. You’re not doing yourself any favors. You’re certainly not helping yourself out.

There are times where I want somebody to participate in an investigation. Classic one is field sobriety test. If you get pulled over and the officer asks you to do some tests, you kind of have no choice, because if you refuse them, yeah, you may think you’re not giving them certain evidence, but if you’re trying to avoid arrest, that’s the only thing that you can do.

You read all over the place about the rights that you have and the rights that you don’t have, especially about DWI. It’s kind of interesting, the old culture of “You have the right to refuse to blow.” Well, sure you do. But generally they find a way around that with a warrant. Unequivocally, you have the right to refuse the DRE. Refuse the examination. Do it politely. There’s no reason to get contrarian. But refuse the DRE.

This is after you’ve already been placed in cuffs. This is after your liberty has already been taken, and is done just piling on to see what more they can get against you.

Secondly, law enforcement is one of the most important parts of our society, and I cannot pay more homage to all the guys and gals wearing gray, blue, and brown. It doesn’t change the fact that they have a job to do, and it is certainly not taking a bunch of people in, doing an analysis, and then saying, “We were wrong for taking this person off the street.”

No, they want to validate. They are playing to win, just like everybody else is. Because of that, you have to understand that these tests that are created by them are what they are using to take away people’s liberty. Again, these are done after you’re already under arrest. Certainly, this has nothing to do with calling out the veracity of individuals. But it is amazing. I cannot tell you how many times, that is not hyperbole, I cannot tell you how many timesI have spoken to an officer before the blood result has come back, and he or she has said, “Dollars to donuts, this is what your guy or gal was on, and this is why.”

Then the blood comes back, and it is from a class of narcotic, or a class of controlled substance that is completely different, and the answer from that officer is, “Oh, well, let me tell you why that actually makes sense.”

If they are writing the test rules, and it is a test that they cannot fail, why are you even participating?

Third and last, I work with all very, very talented law enforcement officers. I cannot tell you that there is one police officer, one sheriff, one state trooper, that I roll my eyes and say, “Hey, this guy or gal just doesn’t know what they’re doing.” They all do.

I also don’t mind telling you that the ones, by and large, that have participated in DRE training are the best of the best. So we are not talking about buffoons who, lo and behold, are going to do something that’s actually going to serve as a defense to you at some point. It’s never going to happen. This is only going to hurt you, and it will never help you.

I don’t mind saying also, I know I said last, but this kind of goes into the whole theme of things. The DRE analysis, after your liberty has already been taken, is actually a bit invasive.

They take your vitals. They take you to a dark room to check your pupils. They check you for needle injection sites all around your body. This is not the most comfortable thing in the world, and when you know that it can never help you, it begs the question,
why even participate?

Thank you for your time.