Ed. Note: This is a guest post by Roswell, Georgia, lawyer Charles Landrum, who has contributed some seriously good thoughts in his comments here and, as the post shows, has some serious thoughts about the potential damage from an ill-advised suit that could well end up establishing a seriously bad precedent.
DRE: a “drug recognition expert.” A name-drop giving cops magical powers to detect drugs that don’t exist and drug use that didn’t happen, like when the arrestee is impaired…because he is having an ischemic stroke. See, e.g., Love v. Tift County, Georgia. Unfortunately, there is a strong appeal to refer to cops as “experts.”
In Steed v. State, the Court of Appeals pointed out the cop’s training despite it being irrelevant to the run-of-the-mill lay observations giving rise to probable cause:
Miller, who, in addition to his regular training, had taken extensive additional training to be recognized as a drug recognition expert and traffic accident reconstruction expert, recognized the odor of alcohol coming from Steed and noticed that his eyes were watery and bloodshot.
In Stewart v. State, the court gratuitously states, “Additionally, he had attended a drug recognition expert course.” Bolster away. And in State v. Domenge-Delhoyo, an implied-consent case, the Georgia Court of Appeals drops an unnecessary footnote:
This officer testified that he was also trained as a drug recognition expert with regard to “how drugs interact with the body.”
None of these cases turned on an officer’s mad skillz at determining “how drugs interact with the body,” so why include the reference to DRE at all? The most egregious example is Littlejohn v. State, a burglary case in which the Court of Appeals describes the items stolen as:
including a computer, a printer, a PlayStation II videogame system, several guns, a digital camera, a video camera, a crossbow, a chainsaw, two weed eaters, a small motorcycle, and a drug recognition expert (‘DRE’) bag that the male victim had obtained during his law enforcement training as a POST-certified City of Macon police officer. (Emphasis added.)
We don’t get any further explanation as to whether the “several guns” belonged to the victim personally or why it matters that they came from the Macon PD, but we are told in no uncertain terms that the victim was a POST-certified DRE. Even though it is wholly irrelevant to the crime committed.
As our host has covered before, Cobb County, Georgia Officer Tracy Carroll carries a DRE card, er, diploma, and he doesn’t hesitate to play it. Allegedly having wrongfully arrested three different individuals on suspicion of drugs that didn’t exist and drug use that didn’t happen, Officer Carroll now faces a lawsuit courtesy of the ACLU of Georgia. The press release is here. The complaint is here.
However, if the ACLU is opposed to DRE and would like to see it eliminated, this is not a wise move. Each of these cases involves the “easy” question of whether probable cause existed when it turned out there were no drugs involved. At all. Whether Qualified Immunity “saves” Officer Carroll from liability remains to be seen. The ACLU should save its efforts for the hard cases.
More importantly, the ACLU is taking a dangerous approach. In each instance, the ACLU alleges that Officer Carroll “performed a watered-down version of the [DRE] test… .” The complaint almost legitimizes DRE as if it were a proper process and that Officer Carroll merely failed to follow all 12 steps:
Cobb County Police Department’s officially promulgated policies or unofficial customs or practices have caused or contributed to these violations. Such customs include recklessly bestowing “Drug Recognition Expert” status to officers without proper training and oversight on when to conduct the 12-Step DRE Protocol and how to conduct it.
So the issue is “proper training”? 240 hours wasn’t enough? An eight-hour recertification every two years isn’t enough? Or are these medical tests—unable to distinguish drug use from an ischemic stroke—that cops shouldn’t be performing at all?
The ACLU includes one paragraph to attack the underlying problem of DRE itself:
In addition, the DRE Protocol is itself riddled with flaws, based on discredited studies, and irresponsibly entrusts police officers with performing essentially medical or scientific tests.”
Yet this is the weakest part of the complaint. There are no studies cited, crediting or discrediting DRE. The ACLU doesn’t even bother to identify the 12 steps or point out flaws in any of them. If you want to win against improper field testing, don’t start with the labels, start with the conduct. In Bravo v. State, the Georgia Court of Appeals used the name but tossed the test:
After the trial court denied Bravo’s motion in limine, Nash testified that “to [hi]s knowledge[, the HGN test] is reliable in approximating [a person’s BAC].” Nash, who had approximately 930 hours in traffic enforcement training, attended the Drug Recognition Expert (“DRE”) program, and had performed the HGN test “a couple thousand times,” explained that he received training regarding the correlation between the HGN and vertical nystagmus tests and a person’s BAC. According to Nash, the DRE issued a “matrix card” which contained various “reference material” regarding the procedure. Nash also testified that the National Highway Traffic Safety Administration (“NHTSA”) conducted studies in 1977, 1983, 1986, and 1987 regarding the accuracy rate for estimating a person’s BAC based on HGN tests, and the 1987 study revealed that the method was 96 percent accurate. On cross-examination, however, Nash explained that the 1977 study evaluated the accuracy of using the HGN test and other field sobriety tests to determine whether a person’s BAC was 0.10 grams or higher.
Pretermitting whether we can consider Nash’s testimony given after the motion in limine was denied in deciding whether the trial court abused its discretion in so ruling, his testimony falls short of establishing that the method at issue has reached a scientific stage of verifiable certainty.
Prove that the methods are unscientific and it doesn’t matter whether the witness uses Dr. DRE as a stage name. Instead, by not attacking the methods, the ACLU’s approach has the possibility of creating a result where the court could find the plaintiffs’ rights were violated because a “watered-down version” of the test was used, without deciding whether the DRE test implemented “properly” is constitutional. If the ACLU wants to do away with DRE entirely, it should have picked a case where the DRE methods were followed to the letter and allege that they still should be found unconstitutional.
The judge isn’t going to give the ACLU a “big” win where a “small” win will do. If the ACLU wins at all. See, e.g., Love v. Tift … oh, never mind.
Don’t win the battle and lose the war. If the Court rules as stated above, some prosecutor down the road will cite this case, saying that “watered-down versions” are improper, so the regular version must be proper. Quotation and citation neatly edited, of course.
Voilà! Court-approved DRE…thanks to the ACLU.