The following discussion is his opinion regarding the use of subjective evaluations, so called sobriety/indicator tests, employed by police agencies and administered by their officers to determine whether or not a driver has been operating a motor vehicle while he or she is under the influence of marijuana. Drug recognition evaluations are predicated on pure junk science and should not be permitted to be used as evidence in court by prosecutors to convict a person of operating a vehicle while under the influence of marijuana.
It is well known that when a motorist is pulled over by a police officer that suspects the driver may be under the influence of alcohol, a field sobriety test will be conducted and subsequently a “breathalyzer test.” The field sobriety test is a subjective test that provides the police officer with information the degree of driver impairment or “Driving While Under the Influence” of alcohol. (“DWI”). Other indicia at the time of the stop also assist the officer in determining if the driver is under the influence, such as open alcohol containers and the smell of alcohol on the driver’s breath.
A motorist that fails a properly conducted field-sobriety test can lead to that individual being convicted of DWI. However, it is also well known that the field-sobriety test is subject to unreliability because, for example, it cannot measure the amount of alcohol in the one’s bloodstream. The test that does test alcohol content is the breathalyzer test in New Jersey is the “Alcotest.”
The Alcotest measures the body’s blood alcohol content or “BAC.” A BAC of .08% or greater in New Jersey results in the driver being deemed as DWI. Of course, the Alcotest protocols must be rigorously followed in order for the results to be considered valid. If the test is rendered invalid, it cannot be used as evidence against the defendant in court. However, when properly administered, the Alcotest provides the municipal prosecutor with powerful objective scientifically reliable evidence to support a DWI conviction.
Unfortunately, there was a time when DWI was not taken as seriously by law enforcement as it should have been. However, the mounting number of deaths and serious bodily injury that was occurring on the Nation’s highways changed that. One of the organizations that have been a strong force in bringing attention to the carnage and mayhem that was happening on the roadways because of drunk drivers was “Mothers Against Drunk Driving” also known as “MADD.” With greater public awareness of the issue of DWI, states enacted tougher laws to combat incidents of DWI.
States have reacted to the need to protect public safety on the roads by enacting strong laws to deter and punish those that do choose to drink and drive. Nevertheless, such laws must be tempered with the accused’s Constitutional rights. A paramount Constitutional right that has to be protected is the due process of law requirement.
Out of the need to balance the competing interests, and after much litigation, scientifically reliable tests, such as the Alcotest, were developed to ensure that individuals were not improperly convicted of DWI. The results of a DWI conviction have devastating effects on an individual’s life both financially and emotionally. Where it is appropriate for an individual should suffer the results of his or her actions. On-the-other-hand, where the State does not prove its allegation, an innocent individual should not so suffer.
Today, State governments and their police agencies are acutely aware that drivers are operating motor vehicles under the influence of many substances other than alcohol. For example, it is more likely than not that more drivers are under the influence of marijuana when driving than ever before. That is because an increasing number of states are decriminalizing the use of marijuana for medical and recreational use.
One of the ways that States are addressing detecting drivers under the influence of marijuana is through the implementation of another form of what can arguably be called a field sobriety test. In New Jersey, that test is known as the “Drug Recognition Evaluation.” (DRE) Police officers are trained to follow DRE test protocols and then make a decision as to whether or not the driver is cognitively impaired by marijuana.
The Alcotest was developed to provide scientifically reliable and credible evidence in court to support a DWI conviction The Alcotest has undergone rigorous scrutiny and countless legal challenges with regard to its reliability. The result, although still subject to technical challenges, is widely accepted as a scientifically reliable and objective test to measure BAC. This is not the case as to the DRE, even though it has been in use for years.
The DRE is not an evaluation that is accepted as a scientifically reliable test of cognitive impairment nor the use of marijuana. The following quote is illustrative of the conundrum posed by the use of the DRE for purposes of determining driver impairment related to marijuana use:
Despite the increasingly legal use of cannabis in many states, cops still don't have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of the marijuana's components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired.
See, Marijuana DUIs Are Still Too Subjective Say Cops. Why No Breath Test?: Shots - Health News: NPR, July 30, 2017.
The unreliability of the DRE is becoming increasingly recognized by the Courts, for example recently in the State of Massachusetts, as follows: The state’s highest court on Tuesday limited which evidence can be used to prosecute drivers suspected of operating under the influence of marijuana, handing a victory to civil rights advocates in a closely watched case. Under a unanimous ruling by the Supreme Judicial Court, Massachusetts police officers can no longer cite their subjective on-scene observations or sobriety tests to conclude in court testimony that a driver was under the influence of marijuana.
See, Mass. high court says sobriety tests aren’t definitive evidence for pot use By Dan Adams, Boston Globe Staff, September 19, 2017.
The drug recognition evaluation can be conducted during the road-side stop, as appears to be the practice in Massachusetts, or at the police station, as is the practice in New Jersey. The point is wherever the test is conducted, it remains an inadequate evaluation and should not be allowed to be used as evidence as a reliable test to measure marijuana induced cognitive impairment.
In conclusion, it is not a stretch to imagine that States are aware that the DRE is neither scientifically reliable evidence presented by an expert (i.e., the police officer) of marijuana-cognitive impairment nor as a measurement of how much of the drug is in an individual’s blood stream at the time the individual was driving. If one accepts that premise, then one naturally should question the States’ motivation for defending the use of the DRE as something it is absolutely not. In his view, it is a gross infringement on individual liberty to permit the use of DREs (junk science) as reliable evidence to convict people of a charge of DWI, a conviction of significant magnitude.