Editor's Comment: The Illusion of Making Something of Nothing - By Sarah Roland

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Tuesday, November 6th, 2018

Reconstruction is the act of reconstructing. To reconstruct is to establish or assemble again.

We’ve all heard of crime scene reconstruction and accident reconstruction. Most of us have probably even called upon experts in those respective fields to assist in the defense of a case. Reconstruction necessarily presupposes that there is something to reconstruct—that something existed or happened previously that no longer exists. Reconstruction takes the known variables and recreates what occurred or existed before. So (aside from false memories and memory reconstruction, which is a whole discussion unto itself reserved for the experts), can something that never occurred be reconstructed? Common sense and basic logic tell us the answer is no.

So, it was to my amazement recently to experience firsthand (along with my brother and trial partner, George Roland) and learn of other similar attempts throughout the state to reconstruct something that never existed in the first place—a drug recognition evaluation where none had ever been done and the component parts to a DRE that were likewise nonexistent.

Q: So, you’re reconstructing something that did not exist in the first place? It’s because there was no DRE done that night that you’re coming in and doing the DRE reconstruction?
A: Yes, that’s correct.

This is apparently happening in cases where an alcohol analysis yields a result sig­nificantly less than the legal limit and there is some evidence of drug use. Perhaps this is because drugged driving has become more commonplace and the reality. Whatever the reason, we must be able to combat this troubling trend.

Some basic knowledge about the DRE and expert is important. First, do not assume that the officer is a drug recognition expert. Make sure to test the officer’s experience and qualifications. Advanced Roadside Impaired Driving Enforcement (ARIDE) certification is not equivalent to DRE certification. ARIDE is billed as a training option bridging the gap between SFST and DRE. DRE Basic Certification is a total of 152 hours comprised of three phases: (1) expert preschool; (2) expert DRE school; and (3) DRE field certification. That an officer is qualified as a DRE or that a trial court may accept a DRE as a legitimate field of expertise does not mean the specific DRE technique was properly applied on the occasion in question. The drug evaluation process is comprised of the following 12 different steps that must be administered correctly:

1.   The Breath Alcohol Test
        The DRE will need to know the result of the suspect’s breath alcohol test, if taken. This is important to the DRE because he must determine whether or not alcohol accounts for the observed impairment. Normally, if the suspect’s blood alcohol level is above the state’s limit for DUI (.08% in most states), a DRE drug evaluation is not conducted.

2.   The Interview of the Arresting Officer
        If the DRE did not make the arrest, he will need to interview the arresting officer prior to the evaluation. This allows the DRE to gain an insight on the suspect’s driving, conduct at roadside, and their performance of the Standardized Field Sobriety Tests (SFSTs).

3.   The Preliminary Examination
        During this step, the DRE will perform a preliminary examination checking for any evidence of a medical complication that would warrant terminating the evaluation and requesting medical assistance. The suspect is asked a series of questions, and the DRE conducts a series of eye examinations that assist in making the decision whether the suspect is under the influence of drugs and/or alcohol or if the impairment may be medically related. If drug impairment is suspected, the DRE proceeds with the evaluation.

4.   Examination of the Eyes
        In this step, the DRE administers three tests of the suspect’s eyes: (1) Horizontal Gaze Nystagmus (HGN), (2) Vertical Gaze Nystagmus (VGN), and (3) Lack of Convergence (LOC).

5.   Divided Attention Psychophysical Tests
        The DRE conducts a series of psychophysical tests that assists in determining the suspect’s condition and if he/she is able to operate a vehicle safely. The DRE administers four divided attention psychophysical tests: (1) the Rhomberg Balance, (2) Walk and Turn, (3) One Leg Stand, and (4) Finger to Nose.

6.   Examination of Vital Signs
        The sixth step requires the DRE to make precise measurements of the suspect’s pulse rate, blood pressure, and body temperature. The suspect’s pulse rate is measured three different times during the evaluation. During this step of the evaluation, the DRE will use medical instruments, including a stethoscope, a sphygmomanometer (blood pressure cuff), and a digital thermometer.

7.   Dark Room Examinations
        During this step in the evaluation process, the DRE will take the suspect into a separate room where the DRE can obtain an estimate of the suspect’s pupil size in three different lighting conditions. The DRE uses a device called a pupilometer and a penlight to conduct the measurements in room light, near total darkness, and direct light.

8.   Examination for Muscle Tone
        During this step, the DRE inspects the suspect’s arm muscles, checking for muscle tone.

9.   Examination for Injection Sites
        Many drug abusers inject drugs. So immediately after checking muscle tone, the DRE then carefully inspects the suspect’s arms, hands, fingers, and neck for evidence of recent or past hypodermic needle injections.

10.  Suspect’s Statements and Other Observations
        In this step of the evaluation, the DRE questions the suspect about specific evidence and observations made during the evaluation.

11.  Opinions of the Evaluator
        In this step, the DRE documents his/her conclusions rendering an expert opinion about the condition of the suspect and the category(s) of drugs causing the impairment.

12.  The Toxicological Examination
        The final step in the evaluation process is to obtain a blood or urine specimen, which is sent to the laboratory for chemical analysis. The lab analyzes the specimen and reports the findings to the DRE and/or the arresting officer.

Available at http://www.cjcenter.org/idi/DRE/basic.html.

In order to reconstruct a DRE, the component parts must have existed. If the DRE was not on scene or part of the initial investigation or if a DRE was never done, testimony from or about a DRE at trial should not be admissible. Again, this only makes logical and common sense. If the DRE expert at trial has only watched the recording, then there are a number of steps in the DRE process that the expert has not done, meaning that the technique was not properly applied on the occasion in question. Further, this discussion presupposes that the State is somehow able to make it over the initial hurdle of convincing the trial court that a DRE, which was never performed or existed initially, can somehow be reconstructed—that something can be made of nothing.

Bottom line: Request notice of experts in every case and have preliminary hearings under Article VII of the Rules of Evi­dence every time. The law entitles us to such hearings upon request.

We must be constantly on alert. We must be vigilant on the front lines in courtrooms keeping bad (or even nonexistent) science out of the courtroom.