Maryland court finds DRE to be unreliable

In 1979 two sergeants with the Los Angeles Police Department cooked up the Drug Recognition and Classification Program (DEC). The National Highway Traffic Safety Administration (NHTSA) climbed on board the bus and developed a standardized curriculum. The International Association of Chiefs of Police became the national certifying agency in 1990.

Police officers without formal scientific training sign up for a 72-hour (clock hours, not semester hours) course in which they learn about seven categories of drugs and are taught to administer a 12-step test (how tastefully ironic) to drivers suspected of being under the influence of drugs. Should they pass a test with a score of at least 80% they are certified as drug recognition experts (DRE).

And, in courtrooms across this country, police officers with no more knowledge than that are allowed to give expert opinions about what drug a motorist was under the influence of while driving. Jurors who have been trained since childhood to trust the police then take this testimony back into the deliberation room with them when deciding whether or not the government proved its case beyond all reasonable doubt.

It happens because judges are scared of their role as gatekeeper of what the jury hears and sees. Too many of the men (and women) in black dresses are fearful of their prospects for re-election should they actually enforce the Constitution and the rules of evidence.

Judge Michael Galloway of the Circuit Court for Carroll County, Maryland, wasn't afraid.

He was asked to determine whether such testimony was admissible in a DWI prosecution. He said it was not.

The state presented six expert witnesses who all claimed that the DRE program was valid, only one of whom was a licensed physician.

Dr. Karl Citek, an optometrist, did not attend medical school. He said he was an adjunct faculty member at the Institute of Police Technology and Management where he taught a three-day class on the medical and science background behind the DRE program. By his own word he stated that the officer conducting the DRE is "making a diagnosis of whether the person is impaired by a drug or medical condition." He also testified that the program does not provide for a set number of indicators that a DRE needs to observe to reach an opinion.

Ms. Michelle Spirk, a chemist with the Arizona Department of Public Safety, had been "heavily involved in the DRE program" for many years. She was only qualified to testify as to the possible effects of a drug and could not testify as to its effect on driving.

Mr. William Tower III, a law enforcement liaison with NHTSA, noted that officers entering the DRE program were not required to have had any prior medical training and that by taking the course and passing the test with a score of at least 80%, any officer could become a DRE. He claimed that the DEC program was designed so that officers could conduct a "systematic and standardized" evaluation to determine whether a person was under the influence of a drug. Then he went on to say that the opinion reached by the DRE would still be valid even if he didn't complete all twelve of the steps in the protocol.

Mr. Tower testified that even if no drugs at all are found in the subject's blood, the DRE is "not going to change [their] opinion after you get the blood. Mr. Tower stated that the reason there would be no change in the officer's opinion is that "you are limited on what the lab can test for." - State of Maryland v. Consolidated Cases

Officer William Morrison, coordinator of the Montgomery County Police Department's Chemical Test Unit, testified that the DRE is "specifically making a medical diagnosis during the examination by ruling out medical conditions during the examination." This from an officer with no medical training or background. He went on to say that he wasn't concerned about the individual indicators because he looked at the "totality of everything" in reaching his opinion.

Dr. Zenon Zuk told the court he had last read the DRE manual fifteen years ago - but that didn't prevent him from testifying on behalf of the protocol fifteen times. Interestingly enough, Dr. Zuk also works with the Western Branch of the U.S. Immigration Service sedating deportees with drugs. No one asked if he had a framed portrait of Dr. Joseph Mengele on his desk. His interest in the DRE program began with his fascination with Tharp's Equation. For those not up on their junk science, Tharp's Equation states that you can predict a person's alcohol concentration by subtracting the angle of onset of horizontal gaze nystagmus from 50 degrees. Just try finding that in a medical textbook or journal.

The defense experts were Dr. Fran Gengo, Dr. Neal Adams and Dr. Jeffrey Janofsky. Dr. Gengo is pharmacologist who has published 65 peer-reviewed articles, three of which dealt with drug-impaired driving. Dr. Adams is the chair of Ophthalmology at the Texas Tech Medical School. Dr. Janofsky is a professor of psychiatry at Johns Hopkins University School of Medicine.

Dr. Gengo testified that the DRE protocol uses tools used by the police in a "novel and unreliable way." He also testified that drugs can have a myriad of effects on an individual that aren't addressed in the DRE manual.

"[T]he data has spoken for itself that [the DRE protocol] cannot reliably discern impairment from non-impairment and cannot reliably identify the medication allegedly causing the impairment." -- Dr. Fran Gengo

Dr. Adams testified that there was no validity to Tharp's Equation. He also had problems with the DRE matrix because it focused more on the category of drugs rather than the relative weight of the drugs and because police officers don't have the judgment nor experience that doctors have in making medical diagnoses. He listed a series of questions regarding nystagmus that are unaddressed in the DRE protocol.

"Medical judgment is using items that may be in a matrix and placing our own experience, our own understanding of the medical literature, placing the knowledge that we have gained into that matrix, understanding the relative weights of different items in that matrix and coming out with a judgment. So that even if we were using this matrix in its totality without anything else, there is an element of judgment that we as physicians would incorporate to assist us. And that is not present; that is, it is a very important component of the matrix that is not present in this matrix. And that is what I was trying to get at is how we as physicians interpret these." - Dr. Neal Adams

Dr. Janofsky was concerned that the DRE protocol had never been validated in any peer-reviewed scientific journal. He testified that the DRE protocol was neither a diagnostic test nor a standardized protocol because it required clinical medical judgment for someone to come to a valid conclusion. Finally, Dr. Janofsky testified that there is a difference between the presence of a drug and evidence of impairment by that drug.

In its review of case law from other states regarding the DRE, the court found instances in which DRE testimony had been permitted because it wasn't scientific evidence. The state argued that the DRE's opinion was formed on the basis of his knowledge and experience. Judge Galloway didn't bite at that apple.

The state wants to have it both ways. It wants to present the evidence as if it's the result of a scientific process but it doesn't want to have to meet the burden established by Daubert for the admissibility of scientific evidence. Prosecutors know that if they can have a police officer color up a protocol that lacks any scientific validity with some words and phrases that convey it as being valid and accepted, then a jury will eat it up like candy.

In the end, Judge Galloway found that the DRE protocol was a novel technique that was not generally accepted in the scientific community. He also found that, even if the DRE protocol wasn't scientific evidence, that a DRE "is not sufficiently qualified to render an opinion, that the testimony is not relevant, and the probative value of the evidence is substantially outweighed by its prejudicial effect."

Unlike many judges who are unwilling to upset the apple cart, Judge Galloway was swayed more by his concern over a defendant's right to due process than judicial efficiency.

DREOrderExcludingDREMarylandMarch52012