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THETRUCKER.COM<br />
b Klepper from page 16 b<br />
This is not the first time a DRE evaluation<br />
has been used. However, it is the first<br />
time I have run across one being used to<br />
evaluate a CMV driver.<br />
As background, the Drug Recognition<br />
Evaluation program was created by a couple<br />
of L.A. police officers who felt that medical<br />
doctors did not receive sufficient training in<br />
the signs of drug impairment for street drugs<br />
and therefore could not offer judgment about<br />
a suspect’s condition.<br />
In order to become qualified to perform a<br />
DRE, an officer must attend a two-day preliminary<br />
training course. Upon completion<br />
of the course, the office may take the sevenday<br />
DRE course. The course covers the 12<br />
steps of the DRE procedure and the seven<br />
categories of drugs covered in the manual.<br />
Due to limited space, I am not going to<br />
list all of the 12 steps of the evaluation or<br />
the seven categories covered (if you really<br />
want to know, shoot me an email.). However,<br />
the evaluation does include a breath<br />
alcohol test, eye exams, divided-attention<br />
tests, dark-room examination of pupils,<br />
muscle tone, potential injection sites, opinion<br />
of the evaluator and a toxicology examination.<br />
All of these test are conducted by<br />
an officer, not a medical professional, with<br />
nine days training.<br />
For what it is worth, most medical doctors<br />
believe that without formal medical training<br />
the person conducting the evaluation is not<br />
qualified to make the determination that a<br />
person is under the influence of drugs or alcohol.<br />
In addition, factors other than drug<br />
or alcohol use can impact the outcome of the<br />
tests being performed. I don’t think anyone<br />
would dispute that the stress of the evaluation<br />
environment would be enough to elevate a<br />
person’s heart rate, blood pressure, temperature<br />
and can even impact a person’s muscle<br />
tone (under stress muscles tend to be firmer).<br />
The point I am trying to make is the person<br />
conducting the drug recognition evaluation<br />
may lack the scientific and medical<br />
Perspective May 15-31, 2019 • 17<br />
training required for the DRE to be relevant<br />
and reliable enough to be admitted under<br />
Rule of Evidence 702. In fact, several state<br />
courts have case law concerning the admissibility<br />
of DRE evidence. These include<br />
Texas, Minnesota, Florida, Oregon and<br />
Washington.<br />
The rub of all of this is that if no citation<br />
was issued there is not a court of law in which<br />
a driver can challenge the validity of the evaluation.<br />
Instead, the only means available is<br />
to file a DataQ challenge. Needless to say,<br />
there is an absence of a neutral party making<br />
a decision on the matter. In my opinion, this<br />
creates a due process issue.<br />
Again, I am opposed to anyone operating<br />
any type of vehicle under the influence of<br />
drugs or alcohol; however, I am also a big believer<br />
in due process. While I think the DRE<br />
can have value I think that it is not reliable<br />
enough to be solely relied upon in the face of<br />
evidence to the contrary.<br />
Brad Klepper is president of Interstate<br />
Trucker Ltd., a law firm entirely dedicated<br />
to legal defense of the nation’s commercial<br />
drivers. Interstate Trucker represents truck<br />
drivers throughout the 48 states on both<br />
moving and nonmoving violations. Brad<br />
is also president of Driver’s Legal Plan,<br />
which allows member drivers access to his<br />
firm’s services at discounted rates. He is a<br />
lawyer that has focused on transportation<br />
law and the trucking industry in particular.<br />
He works to answer your legal questions<br />
about trucking and life over the road.<br />
For more information, contact him at<br />
(800) 333-DRIVE (3748) or interstatetrucker.com<br />
and driverslegtalplan.com. 8<br />
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