New Jersey’s Use of “Drug Recognition Experts” in DWI Cases Could Raise Constitutional Concerns

The Fourth Amendment’s prohibition on unreasonable searches and seizures applies in all New Jersey driving while intoxicated (DWI) investigations and prosecutions. Defendants can raise Fourth Amendment challenges to numerous aspects of a DWI prosecution, such as a lack of reasonable suspicion before stopping their vehicle, or a lack of probable cause to initiate a DWI investigation. In cases in which police suspect an intoxicating substance other than alcohol, they may make use of a Drug Recognition Evaluator (DRE), who has received training in identifying signs of impairment by various drugs. A lawsuit filed last year challenges the use of DREs on Fourth Amendment grounds. While the case is pending in another state, it could affect future New Jersey DWI cases.

A private organization, the International Association of Chiefs of Police (IACP), operates the system for training and certifying DREs in cooperation with the National Highway Traffic Safety Administration (NHTSA). New Jersey has more than 400 police officers participating in the program. DREs use a 12-step process to assess whether a DWI suspect is under the influence of drugs. The IACP claims that this process is supported by scientific research, although this is subject to dispute. Part of the process, for example, involves field sobriety tests that are not part of the standard battery of tests approved by the NHTSA. A variety of medical conditions, physical impairments, and other factors could influence an individual’s performance on the various tests administered by a DRE as part of the 12-step process. A DRE’s expertise, for evidentiary purposes in court, usually does not extend beyond their specific training as a DRE.

The lawsuit mentioned above, Ebner v. Cobb County, involves three plaintiffs who, according to their complaint, were arrested, subjected to forced blood draws, and held for several hours “simply because a police officer had a hunch, based on deeply flawed drug-recognition training, that they might have been smoking marijuana.” None of them were under the influence of marijuana at the time of their arrests, they claim, and toxicology tests reportedly showed no traces of marijuana or its metabolites. They were all charged with DWI, but all charges were eventually dropped.

Each plaintiff encountered the same police officer, who serves as a DRE in Cobb County, Georgia. The officer is named as a defendant along with the county. One plaintiff alleges that the officer, who had pulled her over for making an illegal turn, based his suspicion of marijuana use solely on “his alleged observation that she had watery eyes late at night.” The second plaintiff alleges that the officer’s sole basis for suspecting marijuana impairment was “bloodshot eyes late at night.” The third plaintiff does not identify a specific reason for involving the officer in his traffic stop. Each plaintiff alleges that the officer “performed a watered-down version of the [12-step] test” before placing them under arrest.

The lawsuit alleges that the officer used “an ad hoc smattering of tests” that lacked “rigorous methodology and were without the foundational underpinning necessary to amount to legal justification to arrest.” The plaintiffs claim that, because of this alleged arbitrariness and lack of scientific support, their arrests violated their Fourth Amendment rights.

If you are facing charges of DWI or DUID in a New Jersey municipal court, DWI lawyer Evan Levow can advocate for your rights and guide you through the court process. You can contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to see how our experienced and knowledgeable team can help you.

More Blog Posts:

BAC of 0.08 Percent or Higher Not Always Necessary to Prove DWI, New Jersey Court Rules, New Jersey DWI Attorney Blog, November 8, 2016

Courts Address the Forcible Collection of Samples for Chemical Testing in DWI Cases, New Jersey DWI Attorney Blog, October 23, 2016

New Jersey Court Reviews State Law Regarding Use of Drug Recognition Evaluators in DWI Cases, New Jersey DWI Attorney Blog, February 26, 2016

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