Drug Recognition Expert’s Opinion Not Always Admissible

Officers who have special training to detect whether a DUI driver is impaired by drugs are known as  “Drug Recognition Experts” or “DREs.” Washington State has a growing number of officers who have received this training and DUI officers in Seattle and King County are emphasizing the detection and arrest of drivers who are suspected of being DUI because of drugs. This is especially true since the passage of I-502, the marijuana legalization law.

Our courts have been clear that the testimony of a DRE officer at trial is admissible only after it is proved that the officer has complied with all of the required “twelve steps” of the DRE protocol. Courts strictly construe this requirement because in any DUI trial, juries tend to give more weight to the testimony of experts. Washington courts holding DUI trials sometimes must look outside the jurisdiction when a question of law is not clearly settled in our state. On the question “Can a police officer with dui drug DRE training testify as an expert despite never having personally examined the accused?” the Kentucky Court of Appeals has recently provided an answer. In that case the prosecution was allowed to present the testimony of a Drug Recognition Expert DUI officer that the accused could have been under the influence of certain drugs, but this opinion was based only upon the officer’s review of medical records and not any personal examination. The court noted that whenever a DRE officer’s opinion was previously allowed by a DUI trial court, the DRE expert had personally examined the accused and had complied with each of the required twelve steps of the DRE protocol. The court stated that “the protocol itself requires an officer’s personal observation, physical testing and examination of the subject.” Therefore, it was error to admit the expert opinion of the drug recognition expert without these requirements having first been satisfied. The Kentucky case, Burton v. Commonwealth, is found at 300 S.W.3d 126. The decision was published in February 2010.

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