What is a DRE and Why It is Important?

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If you are charged with a marijuana DWI, the State’s manner of proof is far different – and frankly harder – than a standard alcohol-related DWI. The primary reason is that the State is forced to prove actual impairment and cannot rely simply on a scientific test to tell us that the person is impaired. The BCA experts will even admit – the mere presence of THC in a person does not correlate to impairment. There is no .08 threshold like in alcohol where a person can be scientifically determined to be impaired. So, the State must prove impairment by the person’s driving and personal conduct. This is where a drug recognition evaluation (DRE) comes into play. This blog will explain: What is a DRE and why is important?

What is a DRE?

A DRE is a drug recognition evaluation that is essentially a series of field sobriety-type tests that, when run properly by a drug recognition expert, will lead to not only a determination if a person is impaired, but that the person is impaired by a specific type of drug. The DRE consists of a twelve-step process and must be completed by a drug recognition expert. This last part is important because most police officers are not qualified drug recognition experts. To become one, it is a lengthy training period and requires numerous hours and classes. And because most police departments have few – if any – drug recognition experts, it is imperative to understand the lack of one and the lack of a DRE can have on the State’s DWI case.

The twelve steps are broken into taking vital signs, observations, and divided attention tests. After running a driver through all twelve steps, the drug recognition expert will – or at least should – be able to identify the class of drug that is causing the alleged impairment out of the seven classes of drugs (e.g. stimulant, depressant, cannabis).

Related specifically to marijuana/cannabis, there are common indicia of impairment that an officer can detect: dilated pupils, odor of marijuana, marijuana debris in a person’s mouth, bloodshot eyes, body tremors, possible paranoia, and confusion or disorientation. Another common indicator of impairment is an elevated heart rate. Finally, certain field tests will show cannabis-related impairment and some don’t. For instance, the HGN test – the first field sobriety test conducted in all DWIs – will not show cannabis-impairment, even if the person were to be impaired. Instead, the LOC test (Lack of Convergence) is the eye test that relates to cannabis-impairment. The other two standard field tests – walk-and-turn and one-legged-stand – are primarily intended to detect alcohol impairment. Instead of those two, the DRE will have the driver submit to a modified Romberg test, which, again, will relate directly to possible marijuana-impairment.

Why is a DRE Important?

Now that we have answered the question – what is a DRE – why does it matter? Why is it important? The DRE results are the best and most direct evidence to prove impairment caused by marijuana. Every other typical piece of evidence in a DWI is not necessarily on point.

Most critically, the blood test results have no bearing on actual impairment. The BCA agent will admit this on the stand. No matter the blood test results and the detected amount of THC found in a person’s system, the BCA agent cannot use the blood test result to assess possible impairment. There are many reasons why this is the case. Every person’s metabolism processes THC differently. How the person ingests the THC makes a difference and so, too, does the THC concentration. And, perhaps most importantly, THC can remain in a person’s system for days. Point being, marijuana smoked a day before the DWI arrest will show up in the blood test results. Obviously, that marijuana from the day before will not cause the driver to be impaired the day after.

Because of this, the twelve-step DRE process is critical to determine marijuana impairment. And without it being performed, the State is going to have a very hard time proving beyond a reasonable doubt that a person is impaired by marijuana when driving. For example, Mr. Gempeler’s recent client was acquitted of all DWI-marijuana charges after the jury deliberated for 30-45 minutes. The reason – he did a masterful job demonstrating that the DWI investigation – without a DRE – simply cannot prove marijuana-impairment. 

If you are charged with a marijuana DWI, you need a seasoned DWI defense attorney who understands how to attack these cases and to hold the State to its burden of proof. We have that experience and success to prove it.