Watch for the DRE

Years ago the National Highway Safety Administration developed a series of standardized tests called Standardized Field Sobriety Tests. These tests consist of the Horizontal Gaze Nystagmus, The Walk and Turn and the One Leg Stand. Conducted by a trained individual and in a laboratory setting they are far from perfect in determining whether a person is under the influence of alcohol.

The original purpose of the tests was not to determine if a person was too impaired to drive. The original purpose of these tests was to give a police officer at the roadside a guideline to help determine whether or not they should even bother to bring the driver to the station for a breath test. Through years of misapplication by lawyers and judges who really had their collective heads up their collective asses, the tests have become significant evidentiary tests in almost every alcohol related driving case.

Remember these are scientific tests. They have to be administered exactly as instructed or they are invalid. It is just like you remember in your high school chemistry or physics classes. You must follow the exact instructions or the results of your experiments weren’t valid. In the situation of administering these tests, the police officers have to remember exactly how to give the tests, give those precise instructions to the suspect driver, score the tests accurately and just as accurately record the results.

I am telling you that this almost never happens. These officers are trying to recite these instructions from memory while standing on the side of the road, watching a suspect who may or may not be intoxicated. The cop in question probably hasn’t been back to DWI school for five years. Any mistake has has ever made in giving the instructions is now incorporated into the way he gives the tests. Most of the time the officer will testify the the driver “failed” the tests. The tests are not “pass/fail” tests. On each test the officer is to record “clues”.

Believe me when I tell you that these filed sobriety tests are not good evidence of anything and should never even be admitted at a trial because they are more prejudicial than probative. But a bunch of lawyers through the years who have not understood what the tests are about have, with the help of a bunch of judges who didn’t get it either, developed an entire body of case law that allows these tests into evidence for purposes they were not originally intended. The original purpose of the tests was to help the officers decide whether the suspect driver had a chance of blowing more than .01 on the breathalyzer.

For those of you who think that blowing .08 or more on the breathalyzer makes you automatically guilty of driving under the influence of alcohol, you are wrong. Sadly many lawyers practicing in the State of Missouri believe that to be the law. It is not.

If you are eve on a jury for a DWI case be very suspect if they start giving evidence about Standardized Field Sobriety Tests. Chances are that evidence is being offered for the wrong purpose, by a prosecutor who does not even understand why he/she is offering it, and testified to by an officer who does not know or understand how to administer the tests, score the tests or interpret the test results, defended by a lawyer who does not know how to cross examine on the issues and admitted into evidence by a judge who is clueless as to the travesty taking place right there in the courtroom.

Now, hold on folks, if you think this is a mess, the powers that be have come up with a gimmick called Drug Recognition Evaluation (DRE). If you haven’t heard about it yet, you will. It is a series of tests administered by a “Drug Recognition Evaluator” (a cop who has been through some course at the police academy) that takes over an hour at the police station and has at least ten separate parts of the tests, some of which are divided into subparts. At the end of the test the evaluator gives a subjective opinion as to whether or not he/she thinks the suspect is under the influence of some drug.

The sad thing is this intrusion upon our liberties and privacy is going to be ignored because the government is going to tell us that it is in our best interests to allow this in an effort to remove impaired drivers from the roads.

That ladies and gentlemen is just a crock. Yet so many of you will say, “Oh no. We need to do this to make our roads safer.” Look around, we have been aggressively prosecuting alcohol related driving offenses for years. Has it stopped people from drinking and driving? No.

There may be ways to address the problem of impaired driving but infringing on our rights of privacy is not the solution. And allowing police officers to administer these tests which, even if administered correctly, yield very little of an evidentiary value is just wrong. We have laws against driving under the influence of alcohol or drugs. That conduct should be illegal. But we should also only punish people who actually violate the law.

When we lower the requirements for a person to be found guilty of any kind of law violation we are slowly eroding all of our rights. Please do not forget that these are your rights. I have spent over thirty years protecting your rights. One of the motivators I have is that they are my rights, too.