Shifting your paradigm about the Drug Recognition Expert

Posted on March 13, 2022 in Uncategorized


By Neil Halttunen

I speak to many attorneys about DWI cases and especially about cases involving drug impairment and Drug Recognition Experts (DRE). It has been my experience that far too many defense attorneys have inadvertently drunk the proverbial Kool-aid when it comes to the DRE and are nervous about going to trial when a DRE is involved. I have heard comments from very experienced, and highly regarded, attorneys that they do not believe that their client has a strong defense because the DRE has rendered an opinion that their client was under the influence. While it is understandable that an attorney may believe that a DRE brings a lot to the table, I personally believe that the DRE program is really just one of the most successful disinformation campaigns that has been launched by the National Highway Traffic Safety Administration. It just takes a shift in your own paradigm to discover that the DRE can be one of the best defense witnesses that you can find.

I say that the DRE is a great defense witness because you can use all of the information from the DRE manual to your benefit, and more importantly, to your client's benefit at trial. By exposing the DRE as an over inflated "expert" you not only detract from his or her opinion but you can show the jury that the DRE program is not even close to an exact science and that the jury cannot be sure of your client's guilt. When I go to trial in a drug DWI case, I am far more worried when there was no DRE involved because there are far less materials for me to talk about on my client's behalf.

For example, there are many great quotes to use that you can pull from the DRE manual. Consider, for example, "Cannabis also produces a distortion of the user's perception of time, an increased heart rate (often over 100 beats per minute), and reddening of the eyes." Now ask yourselves how many of your marijuana (cannabis) DWI cases that (1) involved a DRE who claimed that (2) your client's pulse was somewhere in the 90 beats per minute range? You can be sure that the DRE will testify because your client's pulse was approximately 90 beats per minute, that pulse rate exceeds the DRE average, which supports the DRE's opinion. You can then use a quote like the one listed above on cross to undermine that opinion.

No other area of law enforcement (except maybe drug dogs) keep a rolling log of their cases that allows you to expose their past performance to your benefit. Too many lawyers are unaware of the rolling log, and don't ask for it during discovery. It is a gold mine! Seize this opportunity and discuss the difference between "DRE math" and the math used by the entire rest of the world. What I mean by that is when the DRE claims a 90 plus percent accuracy rate, you can use the rolling log to show their actual ability.

You can also use the DRE matrix as a powerful demonstrative. During cross-examination, hand the DRE a clean copy of the matrix and have the DRE mark everything that was not present using a red pen. Pretty soon the majority of the matrix is red and you can submit that marked up matrix as an exhibit at trial for the jury to take back into deliberations with them. In other words, give the jury their own checklist of what is wrong with the State's case.

At the end of the day, the DRE gives you, as the defense attorney, more ammo to use to your client's benefit than they actually bring to the table for the prosecutor. You simply have to shift the way you see the DRE and set your case up to take the power from the State, and convert the DRE into your witness.

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