Discovery Requests in Drug Recognition Expert Cases

Posted on January 26, 2024 in Uncategorized


By Neil Halttunen

In order to be successful in a case involving a Drug Recognition Expert (DRE), you must gather the same materials that were used when the state to constructed their case. Use those same materials to deconstruct and get good results for your client. A lot of materials go into a DRE case; your mastery of those materials will go a long way in making you successful in defending drug DUIIs. Below is a list of materials that should be gathered for every drug DUII case that is headed to trial.

  • Charging Instrument
  • Curriculum Vitae and Rolling Log of the DRE
  • Police Reports/Computer Aided Dispatch Printouts/DRE face sheet
  • Video
  • Medical Records
  • Police Academy Training Records
  • Police Department Policy Manuals
  • Administrative rules
  • SFST Manual
  • DRE Manual
  • DRE Matrix
  • Treatises and Studies
  • IACP Standards for DRE Certification
  • Lab Reports

Charging Instrument

Check the charging instrument and make sure it is plead correctly. In Oregon, the State must plead intoxicating liquor, cannabis, controlled substance, inhalant, or combination thereof. ORS 813.010 and so evidence of intoxicants that are not specifically plead are not relevant here. Check your state’s requirements to see if you have a similar defense. Faulty pleadings can also lead to other challenges such as demurrer so a careful reading may lead to an unexpected gift from the state.

Curriculum Vitae

This is just a resume focused on DRE activities. It can alert you to how active the DRE is in keeping current with their craft and to get a sense of how up to date a DRE is on professional reading. Sometimes you can catch a DRE cribbing another DRE’s resume and make them look foolish and incompetent. Police love to borrow each other’s work and are often sloppy when they take it as their own. Pay close attention for past medical training especially if you are going to cross about the lack of a medical background.

Rolling Log

Every time a DRE conducts an evaluation, they must log it. The log will tell you what drug categories they called and what drug categories were confirmed. 2018 DRE Manual, Session 30, Page 12. You can get this through a discovery request. As you can see in the chart below you simply compare the DRE opinion in a particular case and the lab result and cross the DRE on their actual accuracy versus claimed accuracy. Use case# 19-1234 as an example. The DRE opined 2 drug categories were impairing John Doe. In fact, only one drug was found so the DRE was wrong. A DRE will say this was a correct call because one drug was found.

19-1234Doe, John3-12-19Cannabis, CNS-StimulantCannabisDep. Jones
19-1345Doe, Jane4-1-19Depressant, CannabisDepressant Cannabis
19-1346Smith, John4-12-19CannabisCannabis
19-1347White, Walter4-18-19CNS Stimulant, Depressant, cannabisStimulant, Cannabis

The Rolling Log should be used to cross the DRE on their actual accuracy rate which is generally lower than what they will claim. A DRE only needs a 75% accuracy rate to pass field certification. 2018 DRE Manual, Session 30, Page 10. The DRE will count their opinion as accurate if they correctly call one drug category.

Example-DRE calls Cannabis, Stimulant, and Depressant.

     Only Cannabis is confirmed in urine.
     DRE will count as a confirmation.
     You can cross based on their actual accuracy rate.

The DRE is also required to keep their rolling log updated. If you see a rolling log that is missing a lot of lab results, consider a motion to compel discovery to require that the rolling log be updated. However, remember that a person who is the subject of an evaluation enters diversion, their urine may never be tested. This policy distorts the accuracy rates in Oregon.

Police and CAD Reports

Use these reports to compare what the arresting officer reported versus what the DRE is saying. Mine the facts and indicators from the report and run them through the matrix to see if the opinion is actually supported. You will get the occasional nugget from CAD reports also. Keep an eye out for templates and you can back track in the rolling log to see where the template came from if needed. For example, if the report you are reading about your client uses the wrong name. Look in the rolling log at previous evaluations and see if you are able to find that name. If so, demand that report and cross based on wrong information being inserted in your client’s report. Compare the DRE report to arresting officers report looking for inconsistencies and to see if facts are being accurately and fairly reported.

DRE Face Sheet

This is the handwritten report that the DRE writes on during the evaluation process. Compare the face sheet to the narrative looking for inconsistencies that you can point out. You can highlight the lack of attention to detail.


Use video to verify whether police complied with training with the FSTs. If the police do not perform their investigation in accord with NHTSA standards, this can be used during cross and/or motions to suppress/exclude. Check to see if the video contradicts police reports, and if it does, discredit the whole investigation.

Be sure to keep watching the video after your client is arrested and placed on the patrol car. If a second officer is present, they will often times walk away from your client and have a casual conversation about your client and make statements you can use to your advantage. For example, we have found officers expressing their own doubt about whether they should have been arresting the client because the officer was unsure if there was enough impairment.

Medical Records

Medical records can be used to challenge both the weight of the FSTs and whether the officer should have given the tests at all. Medical records can also be used to explain clinical indicators such as increased pulse or blood pressure.

Police Academy Training Records

Can use these to hold officer accountable for training received and will give you an idea of how active they are in DUII. The attendance of an FST class is also important to be able to lay the foundation for cross based on the FST/DRE manual. Depending on your state, these records may show the officer’s score in the class.

Police Department Policy Manuals

For example, when a police officer gives your client FSTs when your client has a physical infirmity and you want to point this out to a jury. Below is an excerpt from a police policy manual which shows that police departments contemplate the need for alternative tests so the officers should be aware that those tests are available to perform when your client has limitations or the environmental conditions dictate.

504.4 FIELD TESTS (Ashland Police)

Oregon Revised Statues identify the primary Standardized Field Sobriety Tests (SFSTs) and any approved alternate tests for officers to use when investigating violations of DUII laws.

Administrative Rules

Your state may publish administrative rules and compliance with those rules may be a pre-requisite to admission of things like the breath test. Make sure the state has complied with those foundational requirements.

SFST Manual and DRE Manual

Use their training against them when they do not comply with protocols. NHTSA manuals are admissible evidence in Oregon and likely in your jurisdiction for the same reason; impeachment. Below is an Oregon example. Your state likely has a counterpart, if not use this case as persuasive authority.

  • NHTSA manual is not hearsay because it is used for impeachment
  • OEC 706 does not require the witness officer be personally familiar with the manual. Another witness (2nd officer or expert) can lay foundation
  • NHTSA manual is relevant to defense

State v. Morgan, 251 Or App 99 (2012)

DRE Matrix

The DRE matrix can be used as a powerful visual aid at trial. I have had DREs put a red X over each box that was not present and used that to push back on the “totality of the circumstances” claim by the DRE. By giving the jury the visual, it will show a lack of impairment in many cases.

Treatises and Studies-IACP Standards for DRE Certification

I typically use this information via an expert. For example, when a client facing a cannabis DUII is stopped for speeding, I have an expert testify about the research demonstrating that someone under the influence of cannabis is more likely to be driving slow than speeding therefore the speeding is inconsistent with the DREs opinion. With respect to IACP standards, I have had experts testify about the low scores needed to pass the DRE school and certifications.

Lab Reports

This section is largely driven by the state where you practice. For example, Oregon is a urine state and that urine is generally tested as the state police crime lab. The lab report the State gives you is not the end of the story. You can request lab notes which will come in chart form that tells what drugs were found in the specimen but were not confirmed. This can be important because a client taking multiple medications may be taking a non-controlled substance (in addition to a controlled substance) that could explain the symptoms and that can create reasonable doubt when the State cannot prove which substance is causing the impairment.

Get an expert involved to review the lab notes and to assist you with your discovery request. Consider a Motion for Independent Testing when there is reason to question the results.

I wish each and every one of you the best of luck in your trials moving forward. I hope this blog was helpful in that pursuit in some way.

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