Now that laws concerning driving while under the influence of alcohol are firmly in place in every state in America, having survived many of the challenges to their constitutionality, lawmakers are now being pushed to address drivers who may be under the influence of drugs, prescription or otherwise. Already in Kansas there are many officers who have received training to become so-called "Drug Recognition Experts (DRE)".

Usually, a DRE officer will be called in when a driver appears intoxicated, but passes a breath test. DRE's are trained to follow a 12 step process to evaluate whether a driver may be under the influence of drugs. The DRE interviews the arresting officer, then contacts the arrested driver and makes observations to determine whether there may be a medical condition which would explain the driver's behavior. He then will measure the size of the driver's pupils, perform the Horizontal Gaze Nystagmus test, do field sobriety testing, and measure vital signs like blood pressure and pulse. Next is a "darkroom examination" in which an instrument called a "pupilometer" is used to measure the size of the driver's pupils under various lighting conditions. The officer then moves the person's arms to check their muscle tone and to look for "track marks" where drugs may have been injected. The DRE will interview the suspect, render and opinion and, if they believe it is warranted, request a blood (LINK) or urine test (LINK).

DRE is a relatively new phenomenon in Kansas DUI law. There will be many challenges to its use to convict people of the crime of DUI. Police officers are not medical doctors and frankly do not possess the training or skill to accurately interpret medical conditions, take vital signs and determine muscle rigidity and the causes thereof. There are literally hundreds of explanations for why a person's blood pressure, pulse or eyes may appear the way that they do which have nothing to do with the consumption of drugs. There may be drugs, including those that have been prescribed, that cause these conditions, but do not impair the user to the point that he or she cannot safely operate a car. There are questions as to whether this type of pseudo-science is even admissible in court as an "expert opinion". One of the primary "tests" involved in the DRE battery is the Horizontal Gaze Nystagmus (HGN) test. This test is not even admissible in court in the state of Kansas because it is considered so unreliable. The attorneys at our law firm have received training in confronting DRE evidence and are prepared to face this new challenge to our clients.

Drugs, or the metabolites thereof, may remain in a person's blood or urine for days or even weeks after their use. Long after the intoxicating effect of the drug has worn off, remnants of its use may still be detected by forensic testing. Thus, a driver might test positive for marijuana but not be under the influence of it while driving days later. Also, forensic toxicologists disagree on what level of drug presence causes or indicates impairment. Because of the difficulty in proving that a person was driving under the influence of drugs based on DRE testimony and forensic testing, legislators are moving to "Zero Tolerance" laws which conveniently ignore the fact that a positive drug test does not mean a person drove a car while impaired. Under these laws, any detectable level of drug metabolite in a person's blood or urine renders the driver guilty automatically of DUI. Eleven states have already enacted such laws.

The area of drugged driving is a gathering storm which promises to sweep up many safe and innocent drivers in its wrath. To read more about the troublesome subject of driving under the influence of drugs and drug testing, read "You are Going Directly to Jail", by Paul Armentano, a lawyer for NORML.

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