10. DWI Drug Detection

There are three things the State must prove beyond a reasonable doubt in order for you to be found guilty of DWI - Drugs. That you were driving on a public way while under the influence of a controlled drug. The prosecutor will often have an expert (DRE Drug Recognition Expert, or someone from the crime lab) testify as to how he believed you were operating under the influence. The DRE should have followed the NHTSA guidelines and be a certified drug recognition expert who has used the 12 step process.

10.1 Overview

As previously discussed, in New Hampshire, to prove a DWI Drug case, the State must prove beyond a reasonable doubt the driver’s ability to operate a vehicle was impaired by a controlled drug. Many drugs are not controlled drugs.

Some police officers have training specifically related to drugs or DWI drugs. If the officer has only completed the SFT practitioner course, his main training on DWI detection of drugs is that VGN can be caused by drugs. His training would have indicated Field Sobriety Tests measure BAC and not drugs.

There are certain additional training programs offered to police to gain specialized knowledge in DWI Drug detection. Note, however, these programs are generally aimed at classifying a category of drugs, not specific drugs. Because the officer must prove a controlled drug, this can lead to reasonable doubt.

10.1.1 Various DWI Drug Detection Courses/ Training

There are numerous courses available for law enforcement officers who are seeking training in DWI Drug detection. Having completed the SFST training is generally a pre-requisite to the courses.

In order of least involved to most involved, some available courses are:

Introductionto drugged driving (Half day course)

Drugs that Impair driving (8 hours – This class is now a part of ARIDE)

Advanced Roadside Impaired Driving Enforcement (ARIDE) (16 hours – Includes the introduction to drugged driving course/materials)

Drug Recognition Expert (DRE) – (240 hour certification)

I have laid out this chapter by going through the courses and building on the information the officer receives in the less advanced classes. So, an officer who is a DRE will/should have all the information from the other courses. This is due to the layout of the courses building upon each other.  (There are some exceptions to this, and I have tried to note them).

Practice Note: If you are  charged with just DWI – Alcohol, and not DWI Drugs, this information can still be very useful if the officer has the drug training. Because alcohol is a drug, a CNS depressant, one would expect to see any observations made related to alcohol to also be present in CNS depressants. Further, the officer is typically given additional tools to use in these courses, such as additional FSTs. I always ask the officer why he did not do all of the other tests in order to make a more informed determination of guilt (or give the driver an extra opportunity to show he is not impaired).

10.5 Drug Recognition Expert Training (DRE)

This is the only program that can be completed that allows an officer to identify himself has a Drug Recognition Expert/ DRE (also referred to as a drug recognition evaluator). The first DRE program was approved by NHTSA in 1989. It is surprisingly similar to the version still used today. In my mind, the main difference is that the HGN was administered very differently back then, as it followed the same guidelines for the HGN used for DWI- alcohol at the time.

The certification process is approximately 240 hours total. Phase I of classroom time is 72 hours. Of that, 2 days are spent in a “pre-school” class, and the DRE course itself is7 days[1]. The officer must then do 160 hours of Field Certification (Phase II).

To maintain certification as a DRE, the officer must remain in law enforcement, attend an 8 hour recertification process, conduct 4 evaluations, and update his CV. The officer must be recertified every 2 years.

10.5.1 Pre-school Program

During this 2 day class, the officer gets an overview of the entire DRE program. The 7 categories of drugs are covered, the 12 step process is covered, and the officer is taught how to administer the tests. The manual for the preschool program is much easier to read and find things than the full 7 day counterpart.

10.5.2 7 Day DRE Course

In order for this book to not be an additional hundred pages, I am primarily using the overview of the program as described and used in Section 4 of the manual to describe the 12 step process. I will also attempt to add any important additional details. Please look at the corresponding chapter of the Student Manual for the full details on how the officer is supposed to administer the 12 steps.

10.5.2.1 12 Step Program Overview

“DRUG INFLUENCE EVALUATION CHECKLIST

1. Breath alcohol test

2. Interview of arresting officer

3. Preliminary examination and first pulse

(Note: Gloves must be worn from this point on.)

4. Eye examinations

5. Divided attention tests:

______ Romberg balance

______ Walk and turn

______ One leg stand

______ Finger to nose

6.Vital signs and second pulse

7.Dark room examinations and ingestion examination

8.Check for muscle tone

9.Check for injection sites and third pulse

10. Interrogation, statements, and other observations

11. Opinion of evaluator

12 Toxicological examination[1]”

10.5.2.3 Drug Categories

The drug categories are the same as used in the other manuals. The main difference is the “drug matrix” and categories include all of the expected symptoms the DRE uses. Ie. Blood pressure, muscle tone, pupil size. There also is a more exhaustive list of which drug falls into which category. Keep in mind, the officer can only detect categories of drugs, not specific drugs.

10.5.2.4 Specific Detection of Marijuana

This material is not in the DRE manual, but still comes from NHTSA:

“Interpretation of Blood Concentrations: It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. THC concentrations typically peak during the act of smoking, while peak 11-OH THC concentrations occur approximately 9-23 minutes after the start of smoking. Concentrations of both analytes decline rapidly and are often < 5 ng/mL at 3 hours. Significant THC concentrations (7 to 18 ng/mL) are noted following even a single puff or hit of a marijuana cigarette. Peak plasma THC concentrations ranged from 46-188 ng/mL in 6 subjects after they smoked 8.8 mg THC over 10 minutes. Chronic users can have mean plasma levels of THC-COOH of 45 ng/mL, 12 hours after use; corresponding THC levels are, however, less than 1 ng/mL. Following oral administration, THC concentrations peak at 1-3 hours and are lower than after smoking. Dronabinol and THC-COOH are present in equal concentrations in plasma and concentrations peak at approximately 2-4 hours after dosing.

It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. It is possible for a person to be affected by marijuana use with concentrations of THC in their blood below the limit of detection of the method[1].”

The cannabinoid 9-tetrahydrocannabinol (Δ9-THC) is generally accepted as the principal psychoactive ingredient in marijuana. Whereas, 11-nor-9-Carboxy-THC, also known as 11-nor-9-carboxy-delta-9-tetrahydrocannabinol, 11-COOH-THC, THC-COOH, and THC-11-oic acid, is the main secondary metabolite of THC which is formed in the body after Cannabis is consumed.

11-COOH-THC is not psychoactive itself, but has a long half-life in the body of up to several days (or even weeks in very heavy users).

[1]http://www.nhtsa.gov/People/injury/research/job185drugs/cannabis.htm

[1]DRE 7 Day Program Student Manual, HS172A R01/10 (2010) (hereafter referenced as DRE Manual) At Ch 4, pg 4.

[1]DRE Preschool Student Manual, HS172A R01/10 (2010), pg. 4