The Courtroom as a Classroom.

I'd like to elaborate a bit on how and why I believe it's useful think of the courtroom as a classroom.

The Expert Witness is a teacher.

In this "courtroom as classroom" analogy, the expert witness, such as a DRE, is the teacher. Good teachers, whether in an actual classroom or on the witness stand, share much in common. They are knowledgeable about their subject matters. At the same time, however, they don't claim to know everything. They'll also admit when they are wrong. Good teachers don't come across as arrogant. Rather, they may seem somewhat humble. They may even appear a bit nervous. After all, testifying in court is a form of public speaking. The good teacher is enthusiastic about his/her subject matter, and enjoys explaining the intricacies of the topic. The good teacher knows how to pronounce and spell the technical terms of his/her expertise. The good teacher explains rather than dictates, making the complicated seem somewhat simple. The good teacher in the courtroom also shows respect and a bit of deference to the others, even to the court reporter.

The Jury members are the students.

The expert witness teaches the jurors, the courtroom's "students." But unlike students in a college course, or a law enforcement course such as DRE, the courtroom's students didn't sign up for the course! They were ordered to put their work aside, their families, and their other interests to attend this "course." Furthermore, the students may be ordered not to talk about the "class," may not be allowed to "take notes," and may not even know how long the "class" will last! For all of this inconvenience, they receive a very small amount of compensation to cover some of the travel costs. We should be thankful that most members of our society take jury duty seriously. Likewise, we should never disparage a jury by remarking that they were "too stupid" to get off jury duty.

The best prosecutors ask questions from the jury's point of view.

In my experience, the best prosecutors ask questions that the members of the jury would like to ask. It's almost as if the jury members chose one person to ask questions on their behalf, a "designated juror." These prosecutors ask the expert witness to explain procedures, such as the SFST's. They ask the expert witness why they do certain procedures in a specified way. They also talk like a regular citizen, and avoid "copese." An example of a "copese" question is: "Subsequent to activating your overhead emergency lights, did you effect a traffic stop?"

The defense attorney tries to testify.

During the cross examination of an expert witness, such as a DRE, the defense attorney basically testifies, and asks the witness to agree or disagree. To do this, the defense attorney asks leading questions, that usually require a yes or no answer. A simple, but recurring, question that DRE's often encounter is "You're not a medical doctor, are you?" A simple question requiring a "yes" or "no." Defense attorneys also frequently start a question - again, an attempt to testify - by saying "It's fair to say..." I alert whenever I hear a question that starts with the "fair to say" phrase. Because almost always, it's NOT "fair to say." Usually it's a gross oversimplification of a complicated issue. And I have often answered, "No sir, it's not fair to say."

A couple guidelines:
Answer "Yes" or "No" if you can. Ask to "explain" if you must. But never answer "Yes, but..." The good defense attorney will stop you by thanking you for answering the question. Hopefully, the prosecutor will ask you to explain on redirect.

The judge is the referee.

The role of the judge is similar to the role of a sports referee. The judge makes sure that the rules of law are followed, that everyone gets a fair chance to present his/her version of the case, and that the proceeding stays on schedule.

HGN and Driving Impairment

Maryland vs. Brightful et al.

In pondering how to address the questions and issues raised by Judge Galloway in the recent Maryland DRE case (Maryland vs. Brightful et al), I came to the realization that Judge Galloway didn't identify any new issues. I have been asked questions about these very issues in past cases and hearings, including "Frye," "Daubert," and similar hearings. Thus, I will try to comment as I have (and will) in court. Of course, witnesses aren't allowed to give a speech in court; rather witnesses answer questions. But sometimes, the questions are so broad that they require a fairly lengthy narrative.



To illustrate, my two favorite questions - questions I have actually been asked - required lengthy answers. Question 1: "What are the drugs of abuse and what are their effects?" Anticipating an objection by the defense ("Objection, calls for a narrative"), I paused before answering. When no objection was raised, I asked the judge if I could use write on the court's whiteboard. "Go right ahead" said the Judge. I put on a mini-DRE course! Took about an hour. Question 2: "What procedure do you use to determine if an individual is under the influence of drugs?" Again, with the judge's permission, I wrote out the 12 step procedure, explaining step by step. Even explained the so-called "normal ranges" of pupil size and vital signs. Again, I put on a mini-DRE course.



(As an aside, my least favorite question was asked by a defense attorney, again in a DRE admissibility hearing: "Now these 7 categories of drugs you just talked about...is this a list of the drugs you personally have abused?" When the prosecutor didn't object but giggled instead, I tuned to the judge and very politely said, "Your honor, can I object?" The judge replied, "No, but I will." Obviously, the defense attorney insulted me in an attempt to goad me into losing my cool. It didn't work.)



In court, the expert witness, such as a DRE, is a teacher. And the best teachers, whether in college, the police academy, or DRE school, make the complicated simple and understandable. They explain rather than dictate. (The best teachers also know how to pronounce and spell the words of their profession!)



The issue of HGN and driving impairment was brought up in the Maryland case. In my opinion, HGN, in the person who doesn't have it naturally (I've seen 2 people with HGN unrelated to alcohol or drug use.), is a temporary dysfunction of the person's visual tracking system. As we know, the sober person's eyes normally track smoothly from side to side without any visible jerking. But how does this relate to driving? This is how I generally have explained it in court.

In order to properly conduct the Horizontal Gaze Nystagmus test, the subject is admonished to not move his/her head while following the stimulus as it moves from side to side. Although it varies from person to person, in my experience, most people at a .15 BAC are not able to deviate their eyes and keep their head fixed. Their eyes move and their head follows. In order to compensate for this, we may have the person hold his/her chin with the hands, put the back of his/her head against a wall, or even hold a flashlight under the person's chin to keep it from moving. Usually, these measures are unsuccessful. The person just can't move the eyes without moving his/her head. As the alcohol level goes up, the angle at which the person moves his head, in effect to catch up with the eyes, occurs earlier.

In everyday conversation, people move their eyes about 45 degrees. Imagine two officers talking to a citizen. The citizen doesn't move his/her head like a bobble-head doll, or an infant for that matter, from one officer to the other. The citizen moves his eyes. Beyond 45 degrees, however, the person moves his head. If the person can't deviate the eyes 45 degrees before moving the head, there's a good chance that person is under the influence of alcohol or other nystagmus-causing drug. And SFST practitioners know the significance of the 45 degree angle.

Obviously, a person needs to see in order to drive. Furthermore, a driver needs to be able to keep the vehicle in the proper lane while being aware of hazards, other vehicles, exits, etc. that may intrude on the roadway. The driver (at least the sober one) continually moves his/her eyes and head from side to side while maintaining proper lane position, speed, distance from other vehicles and more. Truly, driving is a divided attention task.

The alcohol and/or drug-impaired driver has a decreased ability to divide and shift attention from one thing to other. We certainly assess this impaired divided attention when we administer the Standardized Field Sobriety Tests, including HGN. As I discussed a few paragraphs ago, a person with HGN has a decreased ability to keep his/her head facing forward while looking (gazing) to the side. As a result, the person turns his/her head. In effect, the person looks to the side. If the person is driving, and his/her attention is distracted from the road by, for instance, a police officer conducting an enforcement stop, the driver will look to the side. After all, that's why police cars have high visibility lighting - to get someone's attention.

It's a basic principle of motorcycle operator training that you should "look where you want to go." The converse of this is that you will "go where you are looking." So, to avoid a road hazard, motorcycle riders are taught to look for the safe route around the road hazard. Again, look where you want to go, not at what you are trying to avoid. This principle applies to cars, trucks, and even bicycles. This principle also applies to sober as well as impaired drivers.

Sober drivers, however, are usually able to maintain proper lane position while quickly looking to the side. In fact, the sober driver may not move his/her head, but just the eyes. On the other hand the impaired driver - the driver with alcohol and/or drug induced HGN - may not be able to move the eyes to the side while keeping the head straight. The impaired driver may turn his/her head to the side, and drive in that direction. Again, the impaired driver may "go" where he/she is looking. And too frequently, this results in the impaired driver driving into an existing crash investigation, or a police vehicle with lights flashing. You go where you look.

Breathalyzer for Drugs? Not possible!

The January 30, 2012 USA Today contained a short article in which Sens. Schumer of New York and Pryor of Arkansas suggest increasing funding to develop a breathalyzer type device to test for drugs. Here's my letter to the USA Today in response.

Dear Editor:

No Breathalyzer for drugs

The holy grail of drugged-driving enforcement is, as Sens. Charles Schumer of New York and Mark Pryor of Arkansas stated, a "...breathalyzer-like technology..." to identify individuals who drive under the influence of non-alcohol drugs.

For many reasons, it's extremely unlikely that such a device will ever be available.  Breathalyzer-type instruments test only for alcohol. The impairing drugs of abuse, however, are many. They include illicit drugs like PCP, marijuana, LSD, and heroin, along with legitimate pharmaceuticals like the benzodiazepines (Valium, Xanax, and others), opiates (Oxycodone, hydrocodone, and others), and even non-drugs such as paint and other volatile solvents that are "huffed." And if that doesn't complicate the issue enough, drug users are poly-drug users. This means that they use more than one drug at the same time. Often, one of the drugs is alcohol. It's also important to realize that there many non-drug causes of driving impairment. These non-drug causes include fatigue, dementia, and a host of medical conditions ranging from stroke to uncontrolled diabetes. 

The key to effective drugged-driving enforcement is the well-trained police officer who can recognize and document impairment from any cause. The Drug Evaluation and Classification Program, supported by the National Highway Traffic Safety Administration and the International Association of Chiefs of Police, trains selected officers to become Drug Recognition Experts (DRE's).  These officers, approximately 7000 in the U.S. and Canada, use a step-by-step procedure to determine if a driver is impaired, and that the impairment is due to drugs rather than a medical condition. This program and procedure, which was created by Los Angeles Police Department officers in the 1980's, has been scientifically validated, and has been accepted in many courts throughout the United States. 

I welcome any efforts to expand the availability of DRE officers. These officers are truly the front-line in combating drug-impaired driving. 

Thomas E. Page
Drug Recognition Expert Emeritus
Retired, Los Angeles Police Department

Symposium on Marijuana "reform" at Wayne State University

This past Friday, January 27, 2012, I attended the National and State Marijuana Reform Symposium hosted by Wayne State University's (Detroit) School of Law. Predictably, and not surprisingly, in my estimation all of the presenters (with one exception) and most of the attendees (200 plus) were in favor of the decriminalization and legalization of marijuana. Without going into detail, a couple of the speakers mocked former first lady Nancy Reagan's "Just say no" advice to those who try to avoid using drugs. A number of the speakers blamed "cops, prosecutors, and judges" for our country's drug problem. One speaker, a pharmacy professor AND lawyer, actually told the audience to "Just say Yes to drugs." Nonetheless, there was one speaker who had a contrary (refreshing?) point of view. That speaker was Kevin Sabet, Ph.D. Kevin Sabet is a drug policy consultant. He served as a senior adviser to the White House Office of National Drug Control Policy from 2009 to 2011. He currently is a professor at the University of Florida's School of Medicine. I had the good fortune to introduce myself and to chat with Dr. Sabet. He was aware and supportive of the DRE approach to drugged-driving.

Here are a few of the points that Dr. Sabet made during his presentation. As an aside, many of Dr. Sabet's comments were met with derisive catcalls and comments from the other speakers and the audience. I clapped!

No modern nation has legalized marijuana. Pointed out that legalization is an extreme solution to the drug problem. Contrary to popular belief, Dr. Sabet said that it's very rare for people to be imprisoned for simple marijuana possession.

Dr. Sabet said that Alcohol and tobacco are in fact frightening examples of what can happen with legalization.

Legalization will increase use of marijuana. For many, the fact that marijuana is illegal helps to discourage (and prevent in some cases) use.

Legalization wouldn't eliminate the black market. Raising taxes will increase the likelihood of a black market.

Increased revenue from taxing marijuana wouldn't be offset by the increase in social and economic costs. In fact, Dr. Sabet pointed out that so-called "Vice taxes" rarely offset cost. Again, Dr. Sabet used the costs associated with legalized alcohol as a "frightening" example.

Dr. Sabet said that there are many ways to reduce incarceration rates (and associated costs) without legalizing drugs. He used the example of drug (and sobriety) courts, and other programs that focus on both compassion AND accountability as alternatives to legalization.

Finally, Dr. Sabet said that that although marijuana isn't as dangerous as smoking cocaine or heroin, it still is a harmful substance. (In my opinion, the costs to our society are greater with marijuana, simply because of its prevalence.)

Penn State and Jerry Sandusky: flashback to Hollywood Blvd.

As I watched the Bob Costas' interview of Jerry Sandusky (Penn State) , I had a flashback to an arrest I made in about 83 or 84 in Hollywood. I was walking a foot beat (most fun I've ever had in my life!) on Hollywood Blvd. when a young boy of about 10 pointed to a guy in an arcade and told me that the guy had touched his genitals. My partner and I went into the arcade, and after a brief struggle arrested the guy. Back at the station I interviewed our arrestee at length. He said, "You know what they do to people like me in prison." Of course, I pursued that line of thought - as in "What kind of person are you?" But the arrestee clammed up and refused to talk.

When I reported to work the next day, I was met by the legendary LAPD Lt. Higbie and his OIS team. It seems my pervert-arrestee hung himself - successfully - in the Hollywood Jail. (Investigators later found the typical stash of photos of little boys in the decedent's hotel room.)

Jerry Sandusky sounded just like my arrestee. Flat affect, little emotion, monotone, not fully admitting, but not fully denying either. If Sandusky were in jail, and I were the Watch Commander, I'd definitely make sure he was on suicide watch.

Legalize Marijuana article: My response

The November 2, 2011 edition of Detroit's Metro Times contained an article by Larry Gabriel titled "Top Cop Changes his Mind." (http://metrotimes.com/mmj/top-cop-changes-his-mind-1.1226308) In the article, former Detroit Police Chief Ike McKinnon was quoted as saying marijuana should be legalized. In response to this article, I emailed the following letter to the Metro Times.

Dear Editor:

Former Detroit Police Chief Ike McKinnon said "I can't think of anybody who has died from marijuana." I also can't think of a case where somebody died from an overdose of LSD. The problem with marijuana, and LSD for that matter, is its effect on thinking and behavior. And it's this behavioral toxicity, such as impaired ability to pay attention while driving, that's the real problem with marijuana. The only reason marijuana is used in the first place is because it has a primary effect on the brain, the central nervous system. After all, people don't use marijuana because they like to have bloodshot eyes. The CNS effects include impaired attention, impaired depth perception, amotivation, and more. Knowing these effects, I certainly do not want my doctor, dentist, police officer, child-care worker or professor to use marijuana.

And frankly, to suggest that almost all the "problems and violence" associated with drug use result from the laws is indicative of pharmacological ignorance. Stimulants, such as cocaine and methamphetamine mimic the body's activation of the Sympathetic nervous system. It's this system that's responsible for the body's fight or flight response. In fact, they are correctly termed "sympathomimetics." These drugs cause the user to feel that they are in danger. But the user is responding to the drug, and not the environment. And people who feel threatened, feel paranoid, are dangerous and often violent. PCP ("angel dust") has similar effects.

Like Ike McKinnon, I also am a retired police officer. I also know and respect Dr. Michael Whitty. (In the interest of full disclosure, Mike Whitty was one of my U of D professors many years ago.) But when it comes to drug legalization, including that of marijuana, Professors McKinnon and Whitty are wrong.

Thomas E. Page, M.A.
Drug Recognition Expert Emeritus

Guard against Anchoring and Confirmation Biases

I just came across two interesting articles that deal with bias in forming opinions and beliefs. It's a basic tenet of DRE training that an opinion should not be reached until the evaluation has been completed. Further, the DRE's opinion must be based on the totality of the the evaluation (and of the entire investigation for that matter).

The October 15, 2011 issue of Bottom Line/Personal contained a front page article about misdiagnoses in medicine. It struck me that DRE's face many of the same issues and challenges that medical doctors do in reaching opinions. According to the article, "Doctors routinely take a mental shortcut known as 'anchoring.' They quickly latch onto an idea about what's causing your symptoms." "Anchoring" is definitely something that DRE's have to guard against. For example, anchoring may be caused by what the arrestee says he/she has taken (true or not), what the arresting officer believes the person is under the influence of, or the substances and paraphernalia that were in the arrestee's possession. Guard against "anchoring" by asking yourself whether something else, including a medical condition, may be causing the signs and symptoms. Continually challenge yourself by asking yourself if there are alternative explanations. (As an aside, the article says that in US autopsy studies, "doctors misdiagnosed illnesses between 20% and 40% of the time.")

The July issue of Scientific American contained a column by Michael Shermer titled "The Believing Brain." Shermer wrote that "anchoring bias" occurs when one relies too heavily on one piece of information to make a decision. A DRE who decides that a person is under the influence of, say cannabis, because the person had bloodshot eyes, is an example of "anchoring bias." Shermer also writes about another type of relevant bias called "confirmation bias," in which one seeks and finds "confirming evidence in support of already existing beliefs and ignoring or reinterpreting disconfirming evidence." Sort of like reaching an opinion first, and then gathering evidence to support the opinion.

The best defense against bias in your DRE opinions is to continually remind yourself that there could be alternative explanations for each sign and symptom, and to not reach a final opinion until the entire evaluation has been completed.