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Drug Recognition Experts can allege you’re driving high when sober

Drug Recognition Experts can allege you’re driving high when sober

drug recognition expert

It’s not just the grainy dash cam video that make “The Drug Whisperer” look like scenes out of a horror film. Getting arrested for a DUI under the claim you have marijuana in your system by a drug recognition expert, testing negative, and having to still fight the charges is a nightmare.

It happened in the United States and it could happen in Canada.

“The Drug Whisperer” arrested at least five people with no traces of marijuana for DUIs

Earlier in 2017, 11Alive News chief investigator Brendan Keefe discovered drivers were being arrested for driving stoned despite drug tests showing no signs of impairment. Keefe’s story followed arrests made by Cobb County Police Officer Tracy Carroll, who is trained as a Drug Recognition Expert and recognized as one of the highest rated officers on the department’s DUI task force.

Three of Carroll’s arrests were jailed, but their blood tests showed no presence of marijuana. They all had to spend several gruelling months fighting before the charges were dropped. All three are now suing the department over wrongful arrest. False DUI arrests can have severe consequences for the victims — one of them, a waitress, had her alcohol server’s permit revoked because of the arrest. It cost thousands of dollars for her to prove her innocence.

But these were not the only arrests for marijuana impairment the Cobb County Police Department made. In November 2017, Keefe published an unreacted copy of the drug recognition log for Officer Carroll revealing two more drug arrests. Unsurprisingly, the tests for the people in those arrests also came back negative.

“Internal Affairs investigations show Cobb County Police consistently question negative lab results – not its drug recognition experts,” Keefe wrote in his story.

Assuming guilt despite no scientific evidence of impairment and relying on Carroll’s evidence when he did not even complete the 12 steps required as part of his DRE training ignores the value of innocent until proven guilty. Furthermore, it puts the victims in the impossible position of having to prove their innocence.

Canadian police officers are receiving similar training

Carroll’s received certification from the International Association of Chiefs of Police. The certification requires a 160-hour training program. Canadian police officers receive similar drug recognition expert training to what led to the false arrests by “the Drug Whisperer.”  Ottawa introduced a 12-part evaluation for drug impairments in 2008, which is identical to the 12 steps Officer Carroll was supposed to use.

The steps include:

  1. A breath test to rule out alcohol as the case of impariment
  2. Interview of the arresting officer
  3. Preliminary examination, which includes one of three pulse checks
  4. Eye examination (including horizontal and vertical gaze nystagmus
  5. Divided attention tests (balance and finger to nose tests)
  6. Clinical indicators examination (blood pressure test, temperature, and second pulse test
  7. Darkroom examination of pupil sizes
  8. Muscle tone examinations
  9. Search for and examination of injection sites
  10. Statements and interview of the subject
  11. Opinion of the Drug Recognition Expert
  12. Toxicological sample (urine, saliva, or blood) that must support the officer’s claim and show impairment

Currently, approximately 600 officers received this training as of the month of September. Even more officers will be trained with the same program in preparation for Canada’s marijuana legalization expected in July 2018. Police forces are training their officers as drug recognition experts, including in Ontario where half of the training is completed in Jacksonville, Florida, to the tune of $2,500.

Drug recognition experts are now considered experts by the courts

The Supreme Court of Canada ruled trained drug recognition experts can be treated as experts in drugged-driving cases in March 2017. Now drug recognition experts can be seen as having “expertise beyond the knowledge and experience of a trial judge under the system set out in law.”

Forthcoming legislation will establish blood drug concentrations despite a scientific consensus that blood testing for THC not definitively proving impairment. The federal government’s regulations for blood drug impairment establish limits for DRE’s toxicological samples. They begin with a maximum $1,000 fine for driving between 2-5 nanograms of THC per millilitre of blood. Additionally, 5 ng of THC per mL of blood or 2.5 ng of THC per mL of blood and 50 milligrams of alcohol per 100 mL of blood would be liable to punishments under section 255(1) of the Criminal Code. 

Our lawyers understand the drug recognition expert training program. In December 2017, Acumen Law Corporation hosted an advanced class in drug recognition and impaired by drugs attended by lawyers, Kyla Lee and Paul Doroshenko. Our team learned about the training program from Lance Platt, a PHD Drug Recognition Expert from Texas.

If you are accused by a police officer of driving while impaired by drugs, give us a call for a free consultation

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