Mens Rea: The quickest way to become a doctor

A new wave of police investigative tactics that will be promoted as valid scientific testimony in front of judges and juries is here. This new form of investigation will mean specially trained police officers will soon try to testify about the medications that you take and how they impair you to the point that your act of operating a vehicle while on your medications is criminal.

The Michigan State Police (MSP) began training officers to become ''Drug Recognition Examiners'' or ''Drug Recognition Evaluators'' (DREs) in 2011. The MSP web-site brags that ''specialized training will improve law enforcement detection of impaired drivers.'' (April 27, 2011 - ''Michigan Hosts State's First Drug Recognition Expert Course; Specialized Training Will Improve Law Enforcement Detection of Impaired Drivers.'')

What the press release did not say is the truth behind the studies of the effectiveness of the DRE in predicting the drugs on board and their impairment.

The DRE is a 12-step process. The 10th step is the only step that is effective for the DRE officer: the interview of the driver and the driver's statement about what he or she has been taking. The other steps involve examination of the suspected driver's medical status including blood pressure, pulse and a visual exam along with the Field Sobriety Test (FST) examination. Keep in mind that Standardized FSTs have only been allowed to predict the PRESENCE of ALCOHOL, People v Berger, 217 Mich App 213 (2003).

Already the DRE has been excluded as a violation of the expert testimony rule in the State of Maryland. In the consolidated cases of Maryland v Brightful, (K-10-40259, March 5, 2012), Maryland Circuit Court Judge Michael Galloway found that the DRE protocol does not pass the Frye-Reed test for the admission of expert testimony.

The Frye test examines in part, whether proposed scientific testimony is based on novel scientific knowledge or technique or whether it is generally accepted in the scientific community, Frye v United States, 293 F 1013 (D.C. Cir, 1923).

Judge Galloway provided a thorough description of the DRE protocol in the opinion starting at page 29 and he summarized the testimony of three experts called by the defense: Dr. Gengo, Dr. Adams and Dr. Janofsky. The experts each testified on 3 distinct issues, but the thrust of their common conclusion was that no scientific discipline recognizes that the DRE protocol could predict impairment or even the presence of a particular drug in a scientifically reliable manner. (The opinion can be found in full at the Nichols law firm website:

Judge Galloway wrote that DRE is a new and novel technique because ''it purports to create a protocol for police officers to render a medical diagnosis'' (Brightful at 34). Judge Galloway then concluded that because it is new and novel, DRE must be subject to the Frye-Reed test and it fails because the DRE is not generally accepted in the relevant scientific community, which the judge found was neurologists, pharmacologists, ophthalmologists, toxicologist, behavioral research psychologists, forensic experts and medical doctors (Brightful at 36). The judge then granted the defendants' motion in the consolidated cases and excluded the DRE evaluation and opinion from all the cases.

It is worth noting that the team of defense attorneys included a public defender. It is further worth noting that the judge or attorney who is faced with a DRE case has resources including consultants, such as Lance Platt, PhD, Dr. Platt was the lead instructor at the DRE school in Detroit, Michigan April 12-14, 2012, sponsored by the Michigan Association of OWI Attorneys (MIAOWIA). The ultimate problem with DRE is that it will mislead the jury into thinking that a police officer can render a medical opinion that is not based on validated studies with a known error rate that is acceptable in the scientific community.

Mike Nichols is an attorney in East Lansing who focuses his practice on defending those charged with operating while intoxicated by alcohol or other drugs. He is an associate member of the American Academy of Forensic Sciences, the Michigan delegate and a sustaining member of the National College for DUI Defense, the Secretary and a founding member of the Michigan Association of OWI Attorneys and author of the Michigan OWI Handbook by West Publishing. mnichols

Published: Thu, May 24, 2012


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