DREs frequently administer their tests when someone is arrested for  drunk driving, but passes a breath test. The DRE's testimony may  provide better evidence for the prosecution than toxicology reports.  Blood tests may not measure the quantity of drugs taken and, even if  they do, may not show a level high enough to prove impairment. Urine  tests do not accurately pinpoint when the drugs were ingested and may  not show the quantity. Therefore blood and urine tests alone may not be  sufficient to prove the person was affected by drugs when they were  driving. The DRE argues they can provide the link between the  toxicology report and the Driving Under the Influence charge. The DRE  offers testimony that the defendant failed the physical tests  administered by the DRE, showing that the defendant may be impaired by  the drugs in his system. Lawyers Weekly USA , "Growing New Practice  Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.  The DRE advises that their examination of the suspect is broken into 5  parts:   1. Coordination tests.  The suspect must perform the "walk and turn," "one leg stand," "finger  to nose," and "Romberg balance" test (where he must estimate when 30  seconds have passed while standing with his head tilted back and his  eyes closed). 

 2. Eye tests.  The DRE checks the suspect's pupil size under various lighting  conditions. He checks for "horizontal gaze nystagmus" where the eyes  twitch when looking off to the side and "vertical nystagmus" where the  eyes twitch when looking up. The DRE also checks to see if the eyes  cross normally when looking down at the nose.

 3. Vital signs.  The DRE measures the suspect's pulse, temperature and blood pressure.

 4. Muscle tone.  The DRE feels the suspects arm muscles to see if the are loose and  rubbery or tense.

 5. Visual inspection.  The DRE inspects the suspects mouth and nose for signs of drug  ingestion, the presence of drug debris and discoloration. The DRE   checks the suspect's arms for needle marks. Lawyers Weekly USA ,   "Growing New Practice Area for Drunk Driving Lawyers" dated September   20, 1999, p. 20.

 The DRE determines whether the results of the exam performed on the  suspect match symptoms associated with 7 drug classes. The drug classes  used are central nervous system (CNS) depressants, CNS stimulants,  hallucinogens, phencyclidine, narcotic analgesics, inhalants, and  cannabis. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 468. For example, a person on a  depressant should have normal pupils, but twitching eyes on the   nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and   slurred speech. Persons on cannabis should have dilated pupils, no eye   twitching, a high pulse rate and blood pressure, their eyes may not  cross normally when they look down their nose, and they may have  disorientation. The DRE also interviews the arresting officer, reviews  the breathalyzer results and asks the suspect if he has been using  drugs. Finally, the DRE concludes whether the suspect is behaviorally  impaired, if the impairment is drug-related, and the drug class or   combination of classes likely to be causing the impairment. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated   September 20, 1999, p. 20.

 Drug Recognition Experts are Not Recognized by New Jersey Courts  There is no decision from the New Jersey Supreme Court recognizing the  reliability of DRE testimony as proof of driving under the influence.  The written opinions which permit the admission of DRE testimony either  say the evidence is "non-scientific" or do not address this issue.  However, the recent U.S. Supreme Court case, Kumho Tire Co. v.  Carmichael, 119 S.Ct. 1167 (1999), extends the Daubert screening test    for expert testimony to "non-scientific" testimony. Therefore, if the N.J. Supreme Court adopts Kumho, the DRE's testimony would not qualify  as reliable evidence using the Daubert test. See Lawyers Weekly USA ,

 "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 20.

 Generally, the party offering results of a scientific test as evidence  is required to show that the scientific technique has gained general  acceptance within the scientific community. Romano v. Kimmelman, 96  N.J. 66 (1984); State v. Kelly, 97 N.J. 178 (1984); State v. Spann, 130  N.J. 484 (1993).  There are three ways to show general acceptance within  the scientific community of a particular procedure. (1) Testimony of  knowledgeable experts. (2) Authoritative scientific literature. (3)    Persuasive judicial decision.  Windmere, Inc. v. International Ins. Co.,   105 N.J. 373 (1987).  A proponent of scientific evidence must show that   the procedure or experiments are generally accepted in their field.    Frye v. United States, 293 F. 1013 (D.C. Cir., 1923).

 In pre-trial motions and at trial, defense lawyers can challenge the   accuracy of the evaluation and the DRE's qualifications to perform the  tests. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  Laboratory studies were done in 1996 and 1998. The 1996 studies were  undertaken to determine the validity of the variables of the Drug   Evaluation and Classification (DEC) evaluation in predicting whether  research volunteers had been administered ethanol, cocaine or marijuana  and to determine the accuracy of DREs in detecting whether subjects had  been dosed with ethanol, cocaine, or marijuana. Using discriminant  function analysis, it was found that 17-28 variables of the DEC  evaluation predicted the presence or absence of each of the three drugs  (ethanol, cocaine and marijuana) with a high degree of sensitivity and  specificity and low rates of false-positive and false-negative errors.  The five best predictive variables were nearly as accurate as the entire  subsets of 17-28 variables. When DREs concluded subjects were impaired  by ethanol or drugs or both, their predictions were consistent with  toxicological analysis in 51% of cases. When ethanol-only decisions,  which were guaranteed to be consistent with toxicology, were excluded,  DREs' predictions were consistent in 44% of cases. Journal of Analytical  Toxicology, "Laboratory Validation Study of Drug Evaluation and   Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20,   October 1996, p. 475. This study provides a list of the symptoms that  were found to be the best predictors of impairment by a particular class  of drug. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 470, 472, 474. If these symptoms  are not consistent with those found present in the client on the DRE  report, this may call into question the validity of the DRE's  conclusion.  Challenges to the DRE  Aside from challenging the accuracy of the DEC, the defense attorney  can challenge the DRE's qualifications. It may be argued that the DRE  is not a medical doctor and has only had a nine day course and is  therefore not qualified to make a subjective evaluation of the suspect's  physiological symptoms. A lawyer can inquire into what training the DRE   has been given in distinguishing the effects of drugs from those of  other medical conditions. It should be pointed out that only one and a  half pages of the 570 page DRE training manual covers medical conditions  that can be confused with drug impairment. The defense attorney should  get the DRE's training history to see how well he did in the course and  what continued training he has had. The attorney should also try to  find out what the DRE's track record is by requesting  a copy of the running log which DREs are supposed to keep. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 21.  The defense attorney can also try to explain the suspect's symptoms.    For example, high blood pressure, high pulse rate and muscle rigidity   can be caused by the stress of an arrest. Other symptoms may be caused  by mental conditions such as attention deficit disorder or mania or  delirium, or a medical condition such as diabetes, hypertension or an  abnormal movement disorder. There are many natural causes for  nystagmus. In cases involving accidents, symptoms may be due to a  concussion. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  By reading the DRE manual, the defense should be able to find potential  mistakes made by the DRE while conducting the test. The manual warns  that any deviation from the protocol affects the conclusion. So if the  DRE does not administer the evaluation under the conditions recommended  by the manual, this presents the defense with a good argument that the  results are not reliable. Lawyers Weekly USA , "Growing New Practice   Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21.  Other possible arguments may emerge by comparing the DRE's report with  the notes of the arresting officer. There may be inconsistencies.  Another potential argument is that, even if the DRE correctly determines  that the suspect was affected by drugs, that does not necessarily mean  the suspect's driving ability was impaired. Lawyers Weekly USA ,  "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 21.

 For more information, see Lawyers Weekly USA dated September 20,  1999. Copies of the above referenced 1996 and 1998 studies are  available by fax from Lawyers Weekly USA. The 1996 study is "Laboratory  Validation Study of Drug Evaluation and Classification Program: Ethanol,  Cocaine, and Marijuana," Lawyers Weekly USA No. 9916532 (16 pages). The  1998 study is "Laboratory Validation Study of Drug Evaluation and  Classification Program: Alprazolam, d-Amphetamine, Codeine, and  Marijuana," Lawyers Weekly USA No. 9916533 (12 pages).