Nine Ways to Attack a Drug Recognition Evaluator On Cross-Examination
Driving under the influence of drugs is the new frontier in impaired driving regulation. Your clients may be examined by a Drug Recognition Evaluator (DRE) who will be a key prosecution witness. In this excerpt from Innovative DUI Trial Tools, author Bruce Kapsack shows you the nine major areas on which to attack a DRE during cross examination with examples to demonstrate the point.
Missing Signs
This line of questioning focuses on the fact the client did not have all the expected signs of the drug category the DRE identified in his or her expert opinion.
Example:
Q: You were taught that elevated pulse is a sign of CNS Stimulant influence?
A: Yes.
Q: Mr. Smith did not have an elevated pulse?
A: No.
Do not ask more about the missing sign. If you do, you invite the officer to explain WHY the sign might be missing. Instead save it for your closing.
Normal Signs
This line of questioning focuses on the fact the client’s signs were normal, and therefore not consistent with the drug category in question.
Example:
Q: You were taught the normal range of blood pressure in DRE training, weren’t you?
A: Yes.
Q: That normal range is 120-140 Systolic?
A: Yes.
Q: 70-90 Diastolic?
A: Yes.
Q: What was Mr. Smith’s systolic and diastolic blood pressure?
A: 128 over 80.
Q: 128 over 80 is within normal ranges?
A: Yes.
Q: Narcotic Analgesics lower the blood pressure?
A: Yes.
Alternative Explanations
Perhaps the most understandable technique for a jury, the alternative explanation line of inquiry focuses on everyday rationales for symptoms. These alternative explanations can deal with sleep fatigue, stress, a traffic accident, medical conditions, etc.
Example:
Q: An elevated pulse rate can be caused by things other than drugs?
A: Yes.
Q: Excitement may cause it?
A: Yes.
Q: Stress?
A: Yes.
Q: Being involved in a traffic accident can be stressful?
A: Yes.
Q: Being involved in a traffic accident may cause elevated pulse?
A: Yes.
Q: Fear can elevate pulse?
A: Yes.
Q: False accusations?
A: Yes.
Do not then sum it up, such as “Well, being accused and evaluated by you after this accident may have caused my client to be fearful and stressed therefore elevating his pulse rate?”. A smart cop will say “Not if he had nothing to worry about.” Instead, point out to the jury that many of them probably had an elevated pulse rate when they were first called to sit in the jury box for the initial voir dire because of fear of answering questions and anxiety about what might happen.
Client’s Normal
“Average” or “normal” accounts for very few people. You can remind the jury of this, by showing them that the officer has no concept of what normal or average really means.
Example:
Q: You were taught the normal range for pulse in DRE training?
A: Yes.
Q: You agree that not all people fall in that normal range?
A: Yes.
Q: There are people with pulse rates above normal who are not on drugs?
A: Yes.
Q: People below normal who are not on drugs?
A: Yes.
Q: Do you know what the range of pulse rates is to capture one standard deviation from average, or about 68% of the population?
A: No.
Q: Do you know what the range is to capture about 95%, or two standard deviations?
A: No.
Q: What about to get to three deviations or 99% or so of the population?
A: No idea.
Q: A person’s pulse changes over time?
A: Yes.
Q: You don’t know what Mr. Smith’s normal pulse rate is?
A: No.
Q: It could be in your so-called normal range?
A: Yes.
Q: But his “normal” could be outside the “normal range?”
A: Yes.
Q: In fact it could be higher or lower than your “normal range” and yet he could be one of the second deviation people, in other words, just part of the 95% of us, but not part of the 68%?
A: Huh?
Doctor Cop/Just a Cop
This is best set up in opening or voir dire by asking a juror, especially someone who works in construction, if he uses a plumber to do the electrician’s job or vice versa. E.g., “Juror 5, if I told you I had a worker to do the plumbing but he was trained by an electrician, would that work for you? Why not?”
Example:
Q: The instructors at your DRE school weren’t doctors?
A: No.
Q: They weren’t nurses either?
A: No.
Q: Pharmacologists?
A: No.
Q: Paramedics?
A: No.
Q: They were police officers?
A: Yes.
Q: You’re not a doctor?
A: No.
Q: A toxicologist?
A: No.
Q: A pharmacologist?
A: No.
Q: You don’t have a degree in chemistry?
A: No.
Q: You’re a police officer?
A: Yes.
You then point out in closing that no one would want to place what is essentially a medical diagnosis in the hands of someone who was taught how to take a pulse, measure pupil size, obtain blood pressure and evaluate outward symptoms by a cop at the police academy. Similarly, no one would want a nurse to handle a hostage situation if he or she were trained by another nurse. This is especially valuable if you are using a doctor as your expert.
The Unknown
This attack challenges the DRE’s expertise by requiring the officer to state he or she does not know how a drug causes a sign or symptom, but was told only that it should be there by a cop-trained cop.
Example:
Q: You don’t know how CNS Stimulants dilate the pupils?
A: No.
Q: You don’t know why?
A: No.
Q: So you don’t know the difference between stimulant dilation and other forms of dilation?
A: No.
The Guessing Game
Officers use pupil dilation, pulse rate, and blood pressure to identify a drug. These vital signs require years of training to cross reference with a possible cause. The jury needs to hear this. (These questions are predicated on discovery of the DRE’s record of arrests which the DRE is required to keep to be evaluated and certified).
Example:
Q: Your opinion in a DRE case is subjective?
A: It is based on the information I obtained.
Q: You’ve made these assessments in DRE cases in the past?
A: Yes.
Q: Sometimes toxicology didn’t find the drug category you predicted?
A: Yes.
Q: In fact, sometimes toxicology didn’t find any drug?
A: Yes.
Q: So, sometimes your opinion is not correct?
A: Yes.
Q: Sometimes you guessed wrong?
A: Yes.
Q: In fact when you first stopped my client, you thought he was under the influence of alcohol?
A: Possibly.
Q: You asked if he had been drinking?
A: Yes.
Q: But he tested zero for alcohol?
A: Yes.
Once more don’t ask follow up because the officer will say that’s why he went to drugs. Argue later to the jury that the cop thought alcohol and was wrong. He may be wrong here as well.
Training Comparison
If you are confronted with a non-DRE trained officer, you might want to run through how intense DRE training is to show the complete lack of experience the beat cop has. Another line of inquiry is to compare the completeness of the training an officer receives to carry a gun versus DRE training. Get the officer to describe how much training he or she needed to get to use a gun, which was taught by cops who use them, versus the training for DRE, taught by non professionals.
Lack of Scientific Understanding
It may be worthwhile, either at the start or finish of your cross-examination, to show the jury that the officer really isn’t much more than a parrot when it comes to understanding the science. An open- minded judge may allow you to use this as a voir dire of the officer to preclude DRE testimony from coming before the jury.
Example:
Q: You never read the actual data in the study beyond what’s in DRE manual?
A: No.
Q: You don’t know how many people were tested in the study?
A: No.
Q: You don’t know how many people were tested on the drug in question in your case?
A: No.
Q: You don’t know in how many cases officers incorrectly indicated the drug in question in your case?
A: No.
Q: You don’t know the protocols used in the research to define “correct calls?”
A: No.
Q: You don’t know specifically who (what scientist if any) conducted the study?
A: No.
Q: You don’t know to what blood concentration positive subjects in the research were dosed?
A: No.
Q: You don’t know how many control subjects were involved in the research?
A: No.
Q: You don’t know how many control subjects were falsely identified as positive?
A: No.
Q: You don’t know how many control subjects were incorrectly classified as the drug class involved in your case?
A: No.
Q: In other words, you know nothing about the research subjects, the controls, false positives, correct guess rate, levels of dosage or any aspect of the methodology?
A: No I don’t.
About the Author
Bruce Steven Kapsack is the senior partner of Kapsack & Bair, LLP an AV rated firm practicing exclusively in DUI/DWI defense. Mr. Kapsack pioneered many DUI defense strategies currently used by California attorneys as well as law firms throughout the country. He is the first attorney in California to take and pass the American Bar Association’s Board Certification exam for DUI Specialization.
Innovative DUI Trial Tools provides creative evidence, forms, arguments, and cross-examination questions ready to implement in your next case.
