If you have been arrested and have a pending charge for DWI in North Carolina, the Government will need to prove beyond a reasonable doubt that you were under the influence of an impairing substance at a time relevant to your driving. This substance does not need to be alcohol! If you’ve been charged with a DWI for a substance other than alcohol, our Raleigh Drug DWI Attorneys can help.
Anything you consume or ingest that can appreciably, or noticeably, impair your normal faculties can make it unlawful for you to operate a motor vehicle on the public roadways.
If you have taken prescription medication or have unlawfully consumed an illegal substance prior to driving your car, you can be charged with Driving While Impaired in North Carolina.
It is generally more difficult for the Government to create a strong case against you if they are alleging that you a guilty of DWI after taking drugs. (Although it will be easier for them to create a case against you if on the night of your arrest, they conduct a blood draw and find that you have taken a Schedule One drug like Ecstacy, LSD, or Heroin.) If the alleged drug is some sort of prescribed medication or other less harmful drug like marijuana, then the Government will face a variety of challenges in their attempt to prove you guilty beyond a reasonable doubt.
One of their challenges derives from the fact that drugs can stay in the system for weeks at a time. Therefore, proving beyond a reasonable doubt that your impaired driving stems from the evidence of a drug in your system poses a timeline dilemma. When did you ingest the drug? Was it impairing you on the night of your arrest, or had you taken it weeks earlier?
DRUG RECOGNITION EXPERTS
To help create their case against you, North Carolina Law Enforcement Departments train and employ officers called ‘Drug Recognition Experts.’ They are often called to the arrest scene when the investigating officer has determined that you are impaired on a substance other than alcohol. Drug Recognition Experts (DRE’s) are police officers that are specially trained to determine whether you are under the influence of an impairing substance other than alcohol. They are trained to put the DWI suspect through a series of unique tests for impairment.
DRUG RECOGNITION EXPERT TRAINING
A DRE goes through advanced training coordinated by The International Association of Chiefs of Police (IACP) in conjunction with the National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation. This training program is called the International Drug Evaluation and Classification (DEC) Program.
The training for a DRE can only be undertaken after the officer has completed basic training and is certified in the NHTSA standardized field sobriety testing. The DEC program involves three phases.
- Phase One: The 16-hour DRE Pre-school includes an overview of the DRE evaluation procedures, the seven drug categories, eye examinations and proficiency in conducting the SFSTs.
- Phase Two: The 56-hour DRE School includes an overview of the drug evaluation procedures, expanded sessions on each drug category, drug combinations, examination of vital signs, case preparation, courtroom testimony, and Curriculum Vitae (C.V.) preparation. At the conclusion of the 7-days of training, the officer must successfully complete a written examination before moving to the third and final phase of training.
- Phase Three: The officer must complete a minimum of 12 drug evaluations under the supervision of a trained DRE instructor, and lasts approximately 40-60 hours. Of those 12 evaluations, the officer must identify an individual under the influence of at least three of the seven drug categories and obtain a minimum 75% toxicological corroboration rate. The officer must then pass a final knowledge examination and be approved by two DRE instructors before being certified as a certified DRE.
At the end of the training program, a DRE is supposed to be able to identify:
- Whether someone is impaired, and;
- Whether that impairment is from a physical defect or from drug consumption, and;
- The classification or identification of the particular drug.
DRE SOBRIETY TESTING
DRE’s follow a twelve step process when putting a suspect through an evaluation for drug impairment. After ruling out whether or not the arrestee is simply suffering from a medical condition, the DRE will move on to their analysis.
- Breath Alcohol Test
- The arresting officer reviews the subject’s Breath Alcohol Concentration (BAC) test results and determines whether the subject’s apparent impairment is consistent with the subject’s BAC. If the subject’s impairment is consistent with the BAC, the officer will not call a DRE. If the impairment is not explained by the BAC, the officer requests a DRE evaluation.
- Interview of the Arresting Officer
- The DRE commences his or her investigation by reviewing the BAC test results and discussing the circumstances of the arrest with the arresting officer(s). The DRE asks about the subject’s behavior, appearance, and driving pattern. The DRE also asks whether the subject made any statements and whether the arresting offi- cer(s) found any other relevant evidence, like a small pipe or a baggie.
- Preliminary Examination and First Pulse
- The DRE conducts a preliminary examination, in large part to ascertain whether the subject may be suffering from an injury or other condition unrelated to drugs. Accordingly, the DRE asks the subject a series of stan- dard questions relating to the subject’s health and recent ingestion of food, alcohol and drugs, including pre- scribed medications.The DRE observes the subject’s attitude, coordination, speech, breath and face.The DRE also determines whether the subject’s pupils are of equal size and whether the subject’s eyes can follow a moving stimulus and track equally. If there is greater than 0.05 millimeters difference in the subject’s eyes, he or she may be suffering from a neurological disorder, disease or brain injury. The DRE also looks for HGN and takes the subject’s pulse for the first of three times (see below).The DRE takes each subject’s pulse three times to account for nervousness, check for consistency and determine if the subject is getting worse or better. If the DRE believes that the subject may be suffering from a significant medical condition, he or she must seek help immediately. If the DRE believes that the subject’s condition is drug related, the evaluation continues.
- Eye Examination
- The DRE examines the subject for Horizontal Gaze Nystagmus (HGN), Vertical Gaze Nystagmus (VGN) and a lack of ocular convergence. A subject lacks convergence if his or her eyes are unable to converge toward the bridge of his nose when a stimulus is moved in. Depressants, inhalants, and phencyclidine (PCP), the so-called DIP drugs, may cause HGN. In addition, the DIP drugs may cause VGN when taken in higher doses. The DIP drugs, as well as cannabis (marijuana), may also cause a lack of convergence.
- Divided Attention Psycho-physical Tests
- The DRE administers four psychophysical tests: the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests. The DRE can accurately determine whether a subject’s psychomotor and/or divided attention skills are impaired by administering these tests.
- Vital Signs and Second Pulse
- The DRE takes the subject’s blood pressure, temperature and pulse. Some drug categories may elevate the vital signs. Others may lower them. Vital signs thus provide much valuable evidence of the presence and influence of a variety of drugs.
- Dark Room Examinations
- The DRE estimates the subject’s pupil sizes under three different lighting conditions with a pupilometer to determine whether the pupils are dilated, constricted, or normal. Some drugs increase pupil size. Others may decrease pupil size. The DRE also checks for the eyes’ reaction to light. Certain drugs may slow the eyes’ reaction to light. Finally, the DRE examines the subject’s nasal and oral cavities for signs of ingestion.
- Examination for Muscle Tone
- The DRE examines the subject’s skeletal muscle tone. Certain categories of drugs may cause the muscles to become rigid. Other categories may cause the muscles to become very loose and flaccid.
- Check for Injection Sites and Third Pulse
- The DRE examines the subject for injection sites, which may indicate recent use of certain types of drugs. The DRE also takes the subject’s pulse for the third and final time.
- Subject’s Statements and Other Observations
- The DRE typically reads Miranda, if he or she has not done so previously, and asks the subject a series of questions regarding the subject’s drug use.
- Analysis and Opinions of the Evaluator
- Based on the totality of the evaluation, the DRE forms an opinion as to whether the subject is impaired. If the DRE determines that the subject is impaired, the DRE indicates what category or categories of drugs may have contributed to the subject’s impairment. The DRE bases these conclusions on his or her training and experience and the Drug Symptomatology Matrix. The Matrix’s value should not be overstated. The Matrix is a tool, nothing more. DREs rely heavily on their general training and experience.
- Toxicological Examination
- The DRE requests a urine, blood and/or saliva sample from the subject and sends the sample to the toxicology lab for analysis.
DRE’s IN THE COURTROOM
North Carolina law makes it very easy for the Government to qualify a DRE as an expert for the purposes of testifying against a drug DWI defendant at trial. Usually, the Government would need to show that if specialized knowledge would assist the jury in understanding a fact at issue – then a witness would be qualified as an expert based on his knowledge, skill, experience, training, or education, and may testify if:
- The testimony is based upon sufficient facts or data.
- The testimony is the product of reliable principles and methods.
- The witness has applied the principles and methods reliably to the facts of the case.
Unfortunately for Drug DWI Defendants in North Carolina, this analysis does not apply to Drug Recognition Expert testimony. A DRE will be qualified as an expert by a showing in court that the officer has received training and holds a current DRE certification issued by the State Department of Health and Human Services. That’s all it takes! If the Government has demonstrated the officer has received his DRE certificate, then they may give expert testimony as to whether a Drug DWI Defendant was under the influence of one or more impairing substances, and the category of such impairing substance or substances. The normal analysis as to expert testimony does not apply, and as a result, it is much easier for the Government to lay the proper foundation to have a DRE testify as an expert against you. An experienced North Carolina drug DWI attorney can navigate this confusing situation.
Unfortunately, in 2006, the North Carolina legislature codified an across the board determination that any officer who has successfully completed the DRE training will be able to testify as an expert at trial. North Carolina General Statute Rule 702 makes DRE techniques and analysis an accepted forensic science. All it takes is a simple google search to find a litany of medical articles disputing this fact. So what to do?
THE ARREST PHASE
Remember – under the law in North Carolina, driving is a privilege that is exercised by impliedly consenting to a breath or blood draw if lawfully arrested under suspicion of a DWI. You will be sanctioned by the Department of Motor Vehicles if you refuse to agree to blood or breath testing at the station after a lawful DWI arrest. However, you are not required or compelled to participate in any other form of sobriety testing on the night of your arrest. You are not required to answer any questions at all. You have a right to remain silent as the Government attempts to build their case against you, and you should always exercise that right and wait until you speak to your drug DWI lawyer. No one needs to know how much you had to drink earlier in the evening, or whether you have consumed any drugs. Be polite and let any officer involved, whether it’s a DRE or not, that you are declining to participate in any questioning or testing. The legislature may have made it as easy as possible for the Government to prosecute you in court, but you can level the playing field by giving them as little to testify about as possible.
HIRING AN ATTORNEY
Unfortunately, most people reading this have already been arrested for DWI or Drug DWI. You may have participated in testing with a DRE or answered incriminating questions on the night of your arrest. Don’t despair. Hiring an attorney that has experience with both DWI and Drug DWI charges will put you in the best possible position to challenge the Government at trial and hold them to their burden of beyond a reasonable doubt. If you don’t have an advocate protecting your rights during the criminal process, the Government will have an easier time meeting their objective of successfully prosecuting you in front of a judge or jury.
The Scharff Law Firm has spent the last decade preparing Drug DWI defenses and will be able to guide you through the process from beginning to end. We’ll make sure you understand the best and worst case scenarios and help you prepare your defense. Contact our office and schedule a free consultation with our Raleigh Drug DWI defense attorney Jesse Scharff. We’ll spend the time it takes to get to know you, and the facts of your particular situation. There’s always a light at the end of the tunnel, and we can help you find it.