New Jersey’s driving while intoxicated (DWI) statute does not limit the offense to alcohol. It also includes any “narcotic, hallucinogenic or habit-producing drug” that might impair one’s ability to drive. The statute makes proving impairment by alcohol rather easier for the state by identifying a specific level of blood alcohol content (BAC)—0.08 percent or above—that creates a legal presumption of intoxication. In cases in which police suspect impairment by something other than alcohol, or in which the BAC is below the legal limit, but they still suspect intoxication of some sort, they may bring in a “drug recognition expert” (DRE) to evaluate the suspect. DREs receive training in identifying signs of impairment by various drugs, but both their methodology and the scientific validity of their evaluations remain questionable. In fact, it is junk science that is less than 50% reliable — less reliable than a flip of a coin.
Prosecutors must prove that a defendant in a DWI case was legally impaired. Proving that the defendant’s BAC was at least 0.08 percent, based on a breath, blood, or urine test, typically satisfies this requirement. This evidence is not always available, or prosecutors may allege that a defendant with BAC of less than 0.08 percent was nevertheless legally impaired. The testimony of the arresting officer might support this claim, such as if the officer witnessed slurred speech or other signs indicating intoxication. The mere fact that a driver was not operating their vehicle safely, however, is not enough for a DWI charge, since reckless driving is a distinct offense. DREs serve to provide additional support for the allegation that a driver was impaired. It is critical that the opinion of the DRE be challenged, as any opinion based on the DRE protocol is not based on scientifically validated testing.
The Los Angeles Police Department established the first DRE program in the 1970s, after numerous DWI suspects had a low BAC but still seemed impaired to police. The National Highway Traffic Safety Administration (NHTSA) later expanded the program to other states. The International Association of Chiefs of Police (IACP) has operated a nationwide program since 1989. Police officers receive training and certification through the IACP in the recognition of seven categories of drugs. New Jersey has over 400 certified DREs.
DREs use a 12-step process to evaluate DWI suspects. This test draws on the Standardized Field Sobriety Tests (SFSTs) identified by the NHTSA, but it goes much further than that. The first three steps of the test involve reviewing BAC test results, interviewing the arresting officer, and conducting a preliminary evaluation of the suspect. Steps 4 and 5 involve administering all three SFSTs, as well as two additional tests of highly questionable reliability: the Romberg balance test and the finger-to-nose test. Steps 6 through 10 involve checking vital signs, examining the suspect’s pupils and muscle tone, looking for injection sites, and observing the suspect’s demeanor. Step 11 involves an overall analysis of the first 10 steps, and the final step involves toxicology reports.
HGN, Horizontal Gaze Nystagmus, is one of the 12 required steps for a DRE to be able to form an opinion under the protocol. HGN is not even admissible in New Jersey courts, as it has not been held to be scientifically reliable to predict intoxication, since there are 40 other causes of nystagmus, in addition to alcohol intoxication. Further, there are no validated studies linking drug impairment to HGN. Without the provability of HGN, the DRE’s opinion must fail, especially since the entire process has not been scientifically validated.
The IACP notes, perhaps rather defensively, that “nothing in or about the DRE protocol is new or novel.” The organization claims scientific validation of its protocol, but studies have contradicted its reliability, and New Jersey courts have not addressed the issue in a published court opinion. DRE conclusions are ultimately highly subjective and subject to challenge in court. The use of the term “expert” has a very specific legal meaning in the context of trial evidence in New Jersey and other jurisdictions.
If you are facing charges of drug DWI in a New Jersey municipal court, DWI attorney Evan Levow can guide you through the court process, help you understand your rights, and prepare a strong defense for your case. You can contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
Appellate Court Ruling on Blood Testing for Drugs Likely to Affect New Jersey DWI Cases, New Jersey DWI Attorney Blog, August 22, 2017
New Jersey, Other States Review Standards for “Drugged Driving” as Medical Marijuana Laws Take Effect, New Jersey DWI Attorney Blog, March 13, 2016
New Jersey Court Reviews State Law Regarding Use of Drug Recognition Evaluators in DWI Cases, New Jersey DWI Attorney Blog, February 26, 2016