Defense attack on lack of injured in 173 Case Study

Recently, a Drug Recognition Expert officer was questioned in a deposition about aspects of the Los Angeles Field Validation Study, commonly referred to as the 173 Case Study. (Since this case is on-going, I will not divulge the specifics of the case.)

In this case, the defendant was injured, resulting in the DRE not being able to administer the complete 12 step evaluation. Nonethess, the DRE was able to form an opinion which was subsequently supported by toxicology. The defense challenged the DRE's testimony by pointing out that injured suspects were excluded from the 173 Case Study. In addition, the defense also pointed out that only blood was taken in the 173 Case Study. The prosecution expects the defense to attempt to have the DRE testimony excluded at trial, by arguing that the DRE evaluation was never intended to be performed on injured suspects.


In 1985, I was loaned to the LAPD's Traffic Coordination Section for the specific purpose of assisting in the development of the protocol (the steps) and the training of the officer-participants in this study. The Los Angeles Field Validation Study (later known as the 173 Case Study) was designed to assess the abilities of DREs, in a field (as opposed to laboratory setting) setting, using a step-by-step protocol, to determine if an individual was under the influence of drugs, and the specific category (s) of drug (s). The toxicological portion of study's design required blood draws. The sponsors of the study, primarily NHTSA, but also the National Institute on Drug Abuse, and researchers, decided to to use only blood as the toxicological confirmation specimen. (Ideally, if cost, time, and logistics weren't factors, we would also have taken urine, saliva, and even hair samples.) The sponsors and researchers also wanted to limit any interference with this purpose. Thus, we needed people who could perform the DRE evaluation without delay. Injured suspects obviously needed to have their injuries treated, often resulting in a delay, as well as compromised ability to perform some of the psycho-physical tasks. Also, as part of treatment for injuries, patients often are given other drugs.

No study can study everything. Although the 173 Case Study was limited in its scope, as all studies are, it was never intended to suggest that DRE assessments shouldn't be done on injured crash victims. Two additional points: First, the expertise of DRE comes from the trained officer, NOT the procedure (12 steps). The 12 steps are a tool to help the officer reach his/her opinion. Secondly, as I teach, testify, and have written, a DRE may be able to reach a supportable opinion of drug-influence even though the individual may not have been able to perform all parts of the evaluation. However, this NOT does entitle the officer to have a so-called lower standard of evidence to reach his/her opinion.

Finally, I suggest that all DREs reaquaint themselves with the 173 Case Study before they testify.