The holidays are here, and with the holidays in Fresno come many things.  First, family gatherings, celebrations, and in many cases, also the consumption of alcoholic beverages.  Second, weather will change dramatically, with the onset of the seasonal fog, longer nights, even rain on occasion.  The fog makes driving much more difficult.  Longer nights add to accidents by reducing the field of vision for the driver to the area illuminated by the headlamps of the automobile, street lights, or other natural and artificial light.  The rain, especially after a long absence of a precipitation, can cause the roads to become slippery and unsafe.  Cold temperature can cause ice to form on the roads, or the ever deadly black ice which can be invisible to the driver, and cause a loss of traction and hydroplane type situation. Depression often comes with the holiday season, money is tight, added expenditures, the upcoming tax season, gifts to buy, and along with this added stress comes all too often comes depression.  This too can have a negative effect on the safety of our roads and highways.

One of the leading contributing factors to depression and stress, is a criminal arrest.  During the holidays DUI checkpoints are set up, to bring awareness to the pervasive problem of driving while impaired, and these checkpoints often include arresting people for violating the state's laws forbidding a person to operate a motor vehicle while under the influence, or impaired by alcohol or other substances.

Can I get a DUI for driving after I smoke Medical Marijuana?

This is a common question.  People with legitimate medical needs for marijuana may receive a recommendation to use medical marijuana.  This was a major peace of legislature that was billed to the public as the Compassionate Care Act, or medical marijuana law in California.

All too often I have clients enter my office, a look of bewilderment on their face, and a medical marijuana care in their hand.  The story usually includes getting pulled over.  Next the officer smelled marijuana in the vehicle, and asked the client if they have been smoking marijuana.  Next, the clients both informs the officer that they have been smoking marijuana, but assures him it is legal because the client has a medical marijuana card allowing him/her to smoke marijuana for medical reasons, and has indeed done so.  The officer quickly switches to information gathering questions such as asking to see the clients medical marijuana card.

After ascertaining that the client does have a medical marijuana card, and checking its validity, the officer will many times inquire if the client has any marijuana on them or in the vehicle.  If so, the officer will check to see if the client is complying with the terms.  If so, the next step is a DUI investigation.

The officer will ask when the last time the client smoked marijuana. Once the client answers, they have usually incriminated themselves, or at least caused the DUI investigation to continue with the officer gathering evidence that will likely be used against them in court after they are arrested and charged with DUI.  Usually the client is completely unaware that they have already said enough that they will likely be arrested and charged.  Usually the client believes that his honesty, medical marijuana recommendation, and the usually correct belief that he/she is not impaired will be satisfy the officers curiosity and result in the officer telling them to have a good day and releasing them to continue with their day.

It is usually at this point the officer asks the client to step out of the vehicle and perform a few tests.  Many times this involves the standard Field Sobriety Tests that were created to detect the presence of alcohol, a much different chemical than Marijuana its active ingredient TCH.  The three common field sobriety tests are the One Leg Stand, Walk and Turn, and Horizontal Gaze Nystagmus tests.  Each has standard clues the officer is supposed to look for, but most officers write in whatever observations they make that lead them to the conclusion that person is impaired, rarely noting any positive behavior that would lead to an opposite conclusion.  However, some officers are trained to conduct Drug Recognition Examinations.  They are referred to as DRE tests, which is a much longer process.

Often times a decision to arrest will be made, and a DRE will conduct an evaluation of whether or not your are impaired.  This is a lengthy procedure, and one you are not required to participate in.  Often times, this is more of an evidence gathering session than an evaluation, which will be used to help try and convict you in court  This lengthy procedure is described below:

The DRE Process:

The three determinations of a DRE.  Although a DRE may initiate an arrest for a DUI-Drugs, the usual case is for a different officer, the arresting officer to request the expertise and assistance of the DRE after making a DUI arrest.  The DRE should be requested to conduct an evaluation for drug influence when the suspect's signs of impairmentare not consistent with the arrestee's BAC.  Simply stated, the arrestee may appear more intoxicated than the BAC would imply.  Some agencies such as the LAPD, mandate a drug influence evaluation by a DRE whenever an individual is arrested for DUI and produces a BAC below teh statutory per se level (.08% in California).  In addition, an evaluation is mandated whenever the arrestee's degree and/or type of impairment is not consistent with the arrestee's BAC.  A DRE is responsible for making three determinations:

(1) The arrestee's impairment is not consistent with the BAC:

(2) The individual is under the influence of drugs, and not suffering from a medical condition that requires immediate attention: and

(3) The individuals is under the influence of a specific category (or categories) of drugs.

The ruling in or out of medical conditions (second determination) is critical.  There are many medical conditions, such as stroke, epilepsy, multiple sclerosis, uncontrolled diabetes, and others that produce effects that mimic drug impairment.  The DRE needs to be able to quickly and accurately assess the arrestee for the presence of these conditions.  It is a frequent occurrence for DRE's to determine that the arrestee, who was appropriately arrested, is actually in need of urgent medical care, and is not under he influence of drugs.  Only after ruling out these medical conditions does a DRE proceed with an evaluation to determine what category of drug the person is under the influence of.

A systematic and standardized 12 step process In order to reach an opinion that the indivduals is under the influence of a specific category (or Categories) of a drugs. DRE's utilize a 12 step, systematic and standardized process. The DRE will not reach a final opinion until the entire evaluatin has been completed. The process is standardized in that all DRE's, regardless of agency, utilize the same procedure, in the same order, on all suspects. It is systematic in that it logically proceeds from a BAC, through an assessment of signs of impairment, to toxicological analysis for the presence of drugs. This procedure is root in standard medical procedures that are used to reach a diagnoosis of illness or injury.

The 12 steps are:

Step One: The Breath (or Blood) Alcohol Concentration

Step Two: Interview of the Arresting Officer

Step Three: Preliminary Examination (includes the first of three pulses)

Step Four: Eye Examinations

Step Five: Divided Attention Tests

Step Six: Vital Signs Examinations (includes the second of three pulses)

Step Seven: Darkroom examinations of pupil size (includes an examination of the nasal and oral cavities)

Step Eight: Muscle Tone

Step Nine: Examination of Injection Sites (includes the third pulse)

Step Ten: Statements, Interrogation

Step Eleven: Opinion

Step Twelve: Toxicology: Obtaining a specimen and subsequent analysis

Step One: BAC This step often precedes the involvement of the DRE. If the arresting officer has determined that the BAC is consistent with both the type and degree of impairment, no DRE is called. On the other hand, if the BAC is not consistent with the degree and/or type of impairment, a DRE should be requested.

Step Two: Interview of the Arresting Officer Based on the results in Step One, the arresting officer requests the assistance of a DRE. The DRE will discuss the circumstances of the arrest with the arresting officer, and will inquire as to the suspect's condition at the time of the arrest, whether the arrestee had been involved in a traffic collision, any statements the suspect had made, whether or not the suspect had drugs in his or her possession, and any other relevant matters. This step is analogous to the interview an emergency room physician conducts when an unconscious individual is brought by ambulance to the hospital. The physician will of course inquire of the ambulance attendants as to how long the person has been in that state, if the person has come in and out of consciousness, and so forth.

Step Three: Preliminary Examination This step is commonly referred to as a "fork in the road." The purpose of this step is to determine if there is sufficient reason to suspect drug influence. As was mentioned earlier, there are often serious medical conditions that may mimic drug influence. Therefore, an extremely important part of this step is the determination that it is in fact a drug, rather than a medical condition, that is inducing the observed impairment. In order to make this critical determination, the DRE will make general observations of the arrestee's condition, inquire of the arrestee as to any health problems, and conduct a pupil size and eye tracking examination. Pupils of different size and/or differences in the tracking movements of the eyes often provide evidence of serious, life-threatening, medical conditions. In addition, the DRE takes the first of three pulses in this step. Based on what the DRE detects in this phase, a number of outcomes are possible. The DRE may find no signs of drug influence, and may return the arrestee to the arresting officer for routine processing. The DRE may see evidence of a medical condition, and may obtain a medical assessment. Or the DRE may proceed with a full DRE evaluation. Even though the DRE may have decided to proceed with the drug evaluation, if the DRE at any time finds evidence of a serious medical condition, the DRE will cease the evaluation and obtain the medical assessment.

Step Four: Eye examination During this step, the DRE conducts three separate eye movement examinations. They are: horizontal gaze nystagmus, vertical gaze nystagmus, and an eye convergence examination. The Standardized Field Sobriety Testing (SFST) research found that horizontal gaze nystagmus (HGN) was the best predictor of an individual's alcohol level. Although there are many different types of nystagmus, some of which are caused by pathology, the HGN examined for by DREs is rarely confused with nystagmus caused by other physiological conditions. Simply, nystagmus refers to an involuntary, but visible jerking of the eye balls. Horizontal gaze nystagmus refers to the visible jerking of the eyeballs as the eyes move side to side while gazing at an object. The DRE uses a pencil or pen held in front of the suspect's eyes, and moves the object horizontally in front of the individual while the individual moves his or her eyes attempting to follow the object. In addition to alcohol, other Central Nervous System Depressants, Inhalants, and PCP induce this visible jerking. During the vertical gaze nystagmus (VGN) examination, the suspect is directed to follow an object that is moved up and down. Importantly, any drug that induces HGN may also cause, if the dose is sufficient, VGN. There are no drugs, however, that may cause VGN without first causing HGN. Certain medical conditions, such as brain stem damage, may however cause VGN but not HGN. During the convergence examination, the DRE, again using a pencil or pen, directs the suspect to look at the object while the DRE places the object at the bridge of the suspect's nose. The suspect will attempt to "cross" his or her eyes while looking at the object. CNS Depressants, Inhalants, PCP, and Cannabis impair the ability of the individual to converge (or cross) the eyes.

Step Five: Divided Attention Testing To a degree, this step repeats some of the tests that were given to the suspect at the time of the arrest. The setting now, however, is a controlled environment, a police station, rather than at roadside. The DRE administers the following tests in the following order: Romberg Balance Test, a Walk and Turn Test, the One-Leg Stand Test, and a Finger-to-Nose Test. These tests are divided attention tests, requiring the individual to balance and coordinate body movements, remember instructions, and perform more than one task at once. Frequently, the individual's performance on these tests during the DRE evaluation will be markedly different from the suspect's performance in the field. There are many explanations for this variance: the drug(s) may have worn off during the intermittent time period; the individual may have used multiple drugs, and a different drug may now be dominant. The officer will document the performance of the suspect, and will then continue to Step Six.

Step Six: Vital Signs Examination The DRE takes three vital signs: blood pressure, using a sphygmomanometer and stethoscope, body temperature utilizing an oral thermometer, and pulse. This is the second of three pulses, the first having been taken in the preliminary examination. Of course, if the arrestee's vital signs are dangerously high or low, the DRE will immediately obtain a medical assessment. DREs are trained to accurately take these vital signs, and to compare the results with medically-accepted normal ranges. Certain drugs elevate specific vital signs, other drugs depress the vitals, and other drugs may have no effect on certain vital signs.

Step Seven: Darkroom Examination The eyes have been called "the window to the soul." They are certainly a "window" to the inner body. The pupils enlarge in response to darkness, fear and excitement, as well as in response to certain drugs. They also constrict in response to bright light, as well as in response to certain drugs. The DRE uses a pupillometer to estimate the arrestee's pupil sizes in four different light levels: room light, near total darkness, indirect artificial light, and direct light. The DRE also examines the individual's nasal and oral cavities for evidence of drug use.

Step Eight: Muscle Tone Certain drugs cause the skeletal muscles to become rigid, whereas other types of drugs, such as alcohol, cause muscle flaccidity. The arrestee's muscle tone is evaluated throughout the examination, through observations of the arrestee's movements. During this step, however, the DRE gently moves the arrestee's arms to determine muscle tone.

Step Nine: Injection Sites Examinations Many drug users inject drugs intravenously. Rarely, however, do medical procedures involve injecting drugs into an artery or vein. For example, insulin-dependent diabetics do not inject into blood vessels. During this step, the DRE examines the individual for injection sites. Although the drug user may inject anywhere on the body, the more frequently used areas are the arms, neck, and ankles. Importantly, the presence of injections, even recent ones, are indicators of use, rather than drug influence. Their presence, however, may provide evidence of frequency of use, and the type of drug abused. A third pulse is also taken.

Step Ten: Statements, Interview The DRE now conducts a structured interrogation of the suspect. In the United States, if the suspect has not been advised of his or her constitutional rights (Miranda warnings) previously, the DRE will do so at this point. The DRE will question the person about the use of specific drugs. Frequently, the arrestee will make self-serving denials of drug use, but may admit or even confess drug use and impairment by drugs while driving to the DRE. Arrestees often state that they were using a prescribed drug. The DRE may ask the arrestee about any warnings given to the arrestee by the prescribing physician or pharmacist regarding operating a motor vehicle while taking the drug.

Step Eleven: Opinion The DRE now forms an opinion as to drug influence, and the category(s) of drug(s) causing the impairment. This opinion is not a guess nor is it a hunch. Rather, it is an informed opinion that is based on the totality of the evaluation. Although opinions by nature are subjective, the DRE opinion is based, in part, on objective criteria. It is a primary dictum of DRE training that when in doubt, the DRE shall always find "in favor of freedom" of the suspect. As written, a typical DRE opinion is: "In my opinion, the arrestee is under the influence of a Central Nervous System Stimulant, and cannot safely operate a vehicle."

Step Twelve: Toxicology: Specimen and Subsequent Analysis The fact that this step is the twelfth or last should not be construed to mean that it is the least important part of the evaluation. In fact, toxicological corroboration of drug use is usually necessary for successful prosecution. During this step, the DRE obtains a urine and/or blood specimen from the suspect, which is then analyzed for the presence of certain drugs by a toxicological laboratory. Under the implied consent laws that DRE states have, an individual is required to provide blood or urine to the police when requested. This blood or urine sample is required even though the suspect may have already provided a breath test. Typically, a week or more will elapse until the laboratory reports their results. The decision to prosecute the individual will usually be delayed until these results have been obtained. It is critical to understand the laboratory's role in a non-alcohol drug case. In a drug influence case, the laboratory's role is usually not to determine if the individual was impaired, but is to determine use of a specific substance. For example, the DRE has determined the arrestee is under the influence of a Central Nervous System Stimulant. The laboratory analyzes for specific drugs, such as cocaine, amphetamines, and others. The laboratory report, assuming it corroborates the opinion of the DRE, will identify a specific stimulant the person used. In court, the consistency between the DRE's opinion and the laboratory analysis is critical in demonstrating the accuracy of the DRE. The Tools of the Trade: DRE equipment A DRE utilizes the following equipment in conducting a drug influence evaluation: Pupillometer: a small, approximately 3 inch by 5 inch card (approximately 7 to 12 cm), that is usually plastic, that displays dark circles ranging in half-millimeter gradations from 1.0 millimeters to 9.0 millimeters. Sphygmomanometer: a manual, aneroid blood pressure cuff consisting of a pumping bulb, a screw valve, an analog gauge, and a bladder. Stethoscope: single or double diaphragm, double tubed. Thermometer: oral, digital, with disposable covers. Penlight: low power, medical style. Magnifying light: generally five to ten magnification power, similar to those used by stamp collectors and model builders. Pen or Pencil: used as a stylus to conduct eye movement examinations. Evidence containers: for blood or urine. Protective gloves, latex and/or rubber. In addition, DREs may utilize a specialized, short distance, instant camera to take photos of injection marks, nasal and oral cavities, and of other evidence. DREs may also utilize various type of breath testing equipment, including preliminary breath testers. Part Four: DRE Training and Certification Drug Recognition Expert (DRE) training is probably the most rigorous academic training that any law enforcement officer can undertake. Only selected experienced officers are allowed to enroll in the course. In order to attend DRE training, the candidate is typically nominated in writing by the officer's commanding officer. Some agencies, such as the Los Angeles Police Department, require the candidate to submit a formal application form, while other agencies may require the candidate to appear for an oral interview. The criteria for selection include a demonstrated aptitude and interest in DUI enforcement and/or narcotics enforcement. Candidates must also have demonstrated an ability to conduct thorough crime scene investigations, and to testify clearly and convincingly in court. The International Association of Chiefs of Police (IACP) is the regulating and certifying body for the Drug Recognition Expert program. The IACP establishes minimum standards for all phases of DRE training, including recertification. DRE training and eventual certification by the IACP consists of the following criteria:

1. Standardized Field Sobriety Test (SFST) training

2. Preliminary training

3. DRE School

4. Classroom Examination

5. Minimum number of evaluations

6. Minimum number of drug categories observed

7. Toxicological corroboration

8 ."rolling" log reviewed

9.Certication fianl examination

10.Endorsement by an instructor

11. Endorsement by a second instructor

12.Certification by the International Association of Chiefs of Police.

Criterion One: Standardized Field Sobriety Test (SFST) Training Although there are a number of formats for this first phase of DRE training, the usual format consists of two days of training in the proper administration and interpretation of the standardized field sobriety test battery. This segment is primarily skill-oriented. Students practice administering the SFST on volunteers who consume alcohol. In order to complete this phase, students must successfully pass both a written examination and a proficiency test. SFST training is a "stand-alone" course, in that most officers who complete SFST training never continue into DRE training. This phase of the training may also include an introductory overview of the drugs that impair driving.

Criterion Two: DRE Preliminary Training Following the SFST training, officers that will continue with DRE training must successfully complete a two day DRE preliminary training course. This course expands upon the officers' SFST skills, provides an overview of the DRE procedures, and provides an overview of the effects of the drugs of abuse. In this segment, officers are also taught to properly administer the vital signs examinations that are conducted in a DRE evaluation. Some agencies combine the SFST and DRE preliminary training into a unified four-day course. The LAPD also conducts an accelerated ten-day format that combines SFST training, DRE Preliminary Training, and the DRE course itself into one unified ten-day training event.

Criterion Three: DRE School This segment of the training consists of seven classroom days of intensive training. There are 31 separate segments to the course. Some of the specific segments are: the physiology of the drugs of abuse, the development and effectiveness of the DRE procedures, vital signs examinations, eye examinations, courtroom testimony, and drug combinations. Each of the seven categories of drugs are covered in depth. Commonly abused substances, methods of administration, and the duration of effects are extensively covered. Students view video-tapes of individuals under the influence of the various categories, and participate in many interpretative exercises. Students also practice the administration of the DRE procedure while under the direct supervision of DRE instructors. Students are tested throughout this phase. Under the guidelines established for DRE training by the International Association of Chiefs of Police, students cannot "test-out" of any of the segments of the course, and must make-up any missed classes.

Criterion Four: DRE School Examination At the conclusion of the DRE school, students take a comprehensive written objective examination. Eighty percent is the minimum passing score.

Criterion Five: Minimum number of evaluations This stage begins the certification phase of DRE training. Much like an internship, the student must demonstrate his or her proficiency in properly conducting and interpreting DRE evaluations that are given to actual suspects. The minimum national standards require the DRE student to conduct 12 full drug evaluations. Many agencies, including the LAPD, require 15 evaluations. Some of the required evaluations may include medical rule-outs, and evaluations in which no drug influence was determined by the DRE student. All of the evaluations during this phase must be conducted under the direct supervision of a DRE instructor.

Criterion Six: Minimum number of drug categories observed Student DREs must evaluate individuals who are under the influence of at least three of the seven categories of drugs. (The LAPD and many other agencies require four drug categories.) The student DRE must correctly conduct the evaluations, and must reach appropriate conclusions. All three drug categories must be supported by toxicology.

Criterion Seven: Toxicological corroboration During certification, student DREs must submit a minimum of nine physical specimens, blood or urine, to a laboratory for analysis. The laboratory analysis is compared to the student DRE's opinion as to the type of drug influencing the individual. The student must achieve a 75% laboratory confirmation rate. This means that at least 75% of the samples submitted to the laboratory must result in the laboratory finding a drug belonging to the category the student DRE identified. A 75% standard does not mean that the student can be wrong 25% of the time. A student's opinion must always be supported by the individual's presenting signs and symptoms. It does allow, however, for those instances in which the laboratory is not able to detect the type of drug the student DRE had identified.

Criterion Eight: "Rolling" log reviewed All DREs must maintain a log of all the evaluations, including toxicological results, they have conducted. This log is then submitted to a DRE instructor for review. This log is critical in establishing the DRE's expertise in court, as in documenting DRE experience for recertification.

Criterion Nine: Resume reviewed Each DRE must maintain an up-to-date resume. This resume should list the training the DRE has received, additional readings, court qualifications, formal education, publications, and other relevant experiences. As is the case with the "rolling" log, the primary purpose of the resume is to enhance the credibility and consistency of the DRE when testifying in court. This resume must be presented for review by a DRE instructor. A copy of the resume is maintained by an agency's DRE coordinator.

Criterion Ten: Certification Final Examination This comprehensive written examination is given when the student DRE is approaching the conclusion of certification training. This examination, which typically takes from between three and six hours, requires the student DRE to articulate the signs and symptoms of the various drugs, including numerous drug combinations. The examination is scored on a pass-fail basis by a DRE instructor. This examination is similar in concept to examinations given in graduate school that require the student to demonstrate knowledge of all aspects of drug effects.

Criterion Eleven: Endorsement by an instructor The student DRE is required to secure in writing the recommendation of a DRE instructor stating that the student should be awarded certification. Only DRE instructors that have actually supervised the student DRE may endorse the student.

Criterion Twelve: Endorsement by a second instructor This step requires the written endorsement of a second DRE instructor.

Criterion Thirteen: Certification by the International Association of Chiefs of Police. Once criteria one through twelve have been completed, the student DRE submits all the required documentation to the agency's DRE coordinator. After reviewing the completed package, the agency coordinator approves and submits certification documents to the International Association of Chiefs of Police (IACP) through a state coordinator. A tracking number is assigned to the DRE, and certificates are issued to the new DRE by the IACP. Certification is for a two year period. Recertification and Continuing Education In order to maintain certification, the DRE must attend a minimum of eight hours of continuing education training each two years. Many agencies require a minimum of eight hours of continuing education annually. Typically, the continuing education includes reviewing and practicing the DRE procedures, case law, toxicological issues, and an update on new drugs and drug use trends. The DRE must also have conducted a minimum of four drug influence evaluations during this period, one of which is directly supervised by a DRE instructor. The IACP has also adopted continuing education requirements for DRE instructors. Conclusion The Drug Recognition Expert Program grew out of the need that law enforcement recognized: a need to better identify, apprehend, and prosecute the drug-impaired driver. From its humble beginnings in Los Angeles, law enforcement agencies in 33 American states have adopted the DRE Program.

Following this extensive and intrusive invasion into your liberty, you will often be charged with a crime of driving while impaired.  Officers, who have been trained to write reports, full and accurate reports, will submit a report regarding your arrest that focused exclusively on the reasons why you were arrested, the negative observations, and covers each element necessary to gain a conviction.

When you arrive in court, you will be up against a prosecutor who is well trained and educated, and seeking a conviction.  An officer who has been trained on how to effectively testify, to convince a jury of your guilty.  He has been trained by the government, on what he needs to say, or should say, to gain a conviction.  His training, knowledge, skill, and education will surely focus on the extensive training as a DRE. Another government expert who tested the biological sample, trained by the government on how to testify, what articles and studies lean toward impairment, and often times far outside accepted science, but willing to testify that impairment is present when the signs the officers wrote in his report and testified in court to are present.  Often, the slanted testimony of the officer and the expert combine with the prosecutions zealous attempts to garner a conviction, and end up in a miscarriage of justice.

If you have been arrested or charged with a DUI or other criminal offense contact Fresno DUI and Criminal Defense Attorney Jonathan Rooker to assist you with your case.