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 testimony by a Drug Recognition Expert (DRE), you must gather the same materials that were used when the government constructed their case. Use those same materials to deconstruct and destroy the prosecution. 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 pleaded correctly. In some states, the prosecution must plead intoxicating liquor, cannabis, controlled substance, inhalant, or combination thereof. Check your state's requirements to see if you have a similar challenge. Faulty pleadings can also lead to other challenges such as demurrer or a b ill of particulars, so a careful reading may lead to an unexpected gift.

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 with 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.

Case	Name	Date	Opinion	Result	Witness
19-1234	Doe, John	3-12-19	Cannabis, CNS-Stimulant	Cannabis	Dep. Jones
19-1345	Doe, Jane	4-1-19	Depressant, Cannabis	Depressant Cannabis
19-1346	Smith, John	4-12-19	Cannabis	Cannabis
19-1347	White, Walter	4-18-19	CNS Stimulant, Depressant, cannabis	Stimulant, 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.

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.

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. Remember, the arresting officer's conversation with the DRE is one of the first steps in the 12-step process, and offers the police an opportunity to "get their stories straight.”

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.

Video

Use video to verify whether police complied with training with the FSTs. If the police do not perform their investigation in accordance 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 in the patrol car. If a second officer is present, they will often 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

These can be used to hold officers accountable for training received and will give you an idea of how active they are in DUI investigations. 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

These are potentially full of opportunities for cross examination. For example, let's say a police officer gives your client FSTs when your client has a physical infirmity. Check the pertinent police policy manual to see if officers should contemplate the need for alternative tests. Officers should be aware that those tests are available to perform when your client has limitations or the environmental conditions dictate.

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 prosecution 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 many states are certainly available for impeachment purposes. Oregon has favorable case law on the topic:

• 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. Some DREs put a red X over each box that was not present which can be used 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

Use this information via an expert. For example, when a client facing a cannabis DUI is stopped for speeding, experts can testify about the research demonstrating that someone under the influence of cannabis is more likely to be driving slowly than speeding. As such, speeding is inconsistent with the DREs opinion. With respect to IACP standards, some 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. 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.

Conclusion

DREs are often considered the "doctor” cops of the DUI world. Careful examination and exploitation of these documents will reveal the DREs for what they actually are: nothing but voodoo practitioners. By demanding the government provide you with the disclosure list above, you will be miles ahead of the prosecution when it comes time for trial.