Drug Enforcement Evaluation: Pseudoscience in DUI Cases Under Attack

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Arizona citizens and drivers have the right to expect that their fellow drivers are not impaired. When most people think of impairment and driving, they usually assume that alcohol is the culprit. There is a growing trend, however, of people taking powerful prescription medications that impair them. Law enforcement’s answer has been to emphasize enforcement, but determining if someone is impaired by prescription medications isn’t easy because it can be very difficult to determine if the medication is causing the problem or if the underlying medical condition is responsible.

The answer has been to develop what is known as the drug enforcement evaluation (DRE). It is performed by officers known as drug recognition experts (DREs). These officers go to a two-day DRE Preschool and a seven-day DRE School where they learn about different categories of drugs and their effects on the human body. They are then taught to administer a 12-step process to help them determine if the person with whom they’ve administered the test is impaired to operate a vehicle.



On paper, and in theory, this sounds like the perfect solution to enforcing allegations of drugged driving.

Unfortunately, the entire DRE program is based off pseudoscience. When one delves into the 12-step process to determine exactly what these tests are and how they are administered, the results cause even the least scientific among us to scratch their heads. Perhaps the most ridiculous of these steps asks the officer to touch the subject’s arm. The trained officer is then to record whether the person’s muscle tone was rigid, normal or flabby. In my experience, almost every human being on the planet, regardless of what they may or may not have consumed, will fall into one of those three categories.

There is a real need for law enforcement to have the tools needed to determine if someone is driving under the influence because of their prescription drugs. The Drug Enforcement Evaluation program in its current incantation is not the answer. It is the same as the officer simply telling the jury, “I think that guy was impaired.”


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Currently, this program is explained and relayed to jurors as a science when it is at best a pseudoscience. That is why the state of Maryland ruled that the Drug Enforcement Evaluation program in its current form doesn’t pass the Frye standard and was inadmissible. State of Maryland v. Charles David Brightful, et al, No. K-10-04- 259, Circuit Court for Carroll County, (MD March 5, 2012). It is also why it will be challenged in this state and the remaining 49 states over the next few years. Craig J. Rosenstein


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Craig Rosenstein

Craig is a well-respected trial defense attorney and has been lead counsel in nearly 100 jury trials taken to verdict. He would happily aid in a case. As a highly-regarded speaker at legal conferences across the nation, Mr. Rosenstein has spoken on different jury trial strategies and a taught other attorneys jury trial tactics. He has also been a faculty member at some of the country's most respected trial colleges.

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