Drug Category versus calling a specific drug question

In response to a discussion on the Impaired Driver forum.....

This discussion was initiated by an inquiry from one of the true mainstays of Drugged-driver prosecution, Susan Glass, the Traffic Safety Resource Prosecutor of Missouri.  Susan asked:

"Has anyone ever successfully tried a DWI-drugs case where the only evidence of the presence of a controlled substance in the defendant's blood was the testimony of a DRE that he was impaired?"

"I'm assisting on a case where the sole evidence of drug use is DRE testimony that the subject was impaired by cannabis and a CNS depressant. We have no toxicology, no admissions regarding drug use, and no other manifestations of use (i.e. odor, puncture or track marks, drugs/ paraphernalia in the car). We now have to convince the court that the DRE testimony alone is sufficient to sustain a conviction. Any case law on the issue would be much appreciated, thanks!"

Steve Talpins, also a mainstay, responded:

"Does your law require you to prove a specific drug or drugs? If so, I do not believe your case is provable without something allowing you to specify the substance (ie. odor, presence of cannabis, drug paraphernalia, toxicology, anything). DREs call categories, not specific substances. I'm cc'ing these guys and asking DREs to comment on this as well."

At that point I responded.  This is a very common issue.  In fact I have written on this in the past.  Here's my response:

In California DREs have historically identified the specific drug, rather than just the category. This has been the case in arrests and investigations for 11550 Health and Safety Code. This law, sometimes referred to as "internal possession," prohibits use and/or being under the influence of specified controlled substances, not just a category of drugs. This law has nothing to do with driving. Neither does it have anything to do with a "public place." Historically, it was designed to break the cycle of addiction. And also historically, California courts have ruled that someone can be prosecuted for 11550 H&S (e.g., "under the influence of cocaine") and for DUI-drugs, "under the influence of a CNS Stimulant." The determination by the officer that the specific drug is cocaine, rather than just a generic CNS Stimulant is based upon many factors,including signs of ingestion, knowledge of drug trends in the community, suspect's statements, drugs and paraphernalia possessed, etc. Usually (again historically), the officer's opinion states that the signs and symptoms exhibited by the suspect were consistent with cocaine (or the specific drug in question). Decision about prosecuting understandably awaits the toxicology report.

By the way, I discuss this when I'm asked to present on the history and development of DRE. There was already an expertise and acceptance of officers making under the influence of drugs arrests in Los Angeles prior to DRE. I believe that DRE became accepted in Los Angeles first because of this.


And yes, Susan, there have been many cases in which individuals have been convicted of DUI-drugs without supporting toxicology. There have also been cases in which convictions have resulted even though toxicology was negative. I can refer you to the, Los Angeles City Attorney's Office (Ellen Sarmiento or Dan Jeffries if you want specific information.

Steve then asked me if this was unique to California.  My response:

I think that Nevada, for one, has a similar law.

Yes, the officer must be able to articulate why he/she concludes that the person is under the influence of a specific drug, and not just a category. It's usually not that difficult. And frankly, there is almost always corroborating evidence in DRE cases, such as an admission, possession of the drug itself, paraphernalia that is usually used with one specific drug, methods of administration (Eg many fresh puncture wounds point to a short-acting drug such as cocaine), duration of effects (A four hour duration surely points to heroin much more than extremely short-acting fentanyl), and much more. Again, the officer must be able to convincingly articulate why he concludes that it is a specific drug. And that conclusion is based on a lot more than solely the presenting signs and symptoms. And if that conclusion is supported by toxicology (cocaine corroborated by benzoylecgonine for example), well, what's the defense!

As I think about this issue, I suspect that DREs world-wide,and not just California, would be able to identify the specific drug, and not just the category, with a high degree/percentage of corroboration. My guess - 80%.

I was in a south Florida supermarket the other day - Publix - when I saw a young lady - probably 25 but aged like she was 40, with pimples, stringy hair, grossly underweight, shabby clothes that were too big, bad teeth, jerky movements. CNS Stimulants certainly. I think it's reasonable to conclude that it wasn't just too many lattes that caused her appearance and behavior. I'd certainly suspect methamphetamine. In fact, this person looked at me while I looked at her, and high-tailed it out of the store without making a "purchase." I relate this little story to emphasize that DRE determinations are based on the totality of observations, and not solely the DRE procedure itself.