If you are charged in the Greater Toronto Area with driving under the influence (DUI) of drugs, the Crown can seek a conviction based on bodily fluid sampling, subjective evidence presented by a drug recognition expert (DRE), or both. Because bodily fluid sampling techniques, devices, and its presentation as evidence have not yet established the same level of historical reliability as that of blood alcohol concentration (BAD) devices, many drug impaired driving cases tend to hinge on DRE evidence.
This begs the question as to what gives the DRE's subjective evidence such sway in drug-related DUI cases? How can evidence presented by a DRE warrant more consideration in court than that of a regular police officer?
Well, first off know that police can lay impaired driving charges based solely on a standardized field sobriety test. If compelling enough, an office's sworn testimony about the test can be enough to result in a conviction. However, such subjective evidence is typically not strong enough to result in a conviction, so police tend to seek other evidence—such as breathalyzer readings—to bolster their case. In cases of drug impaired driving, police started bolstering their cases with drug recognition "experts" in the 1970s.
LAPD Launches Drug Evaluation and Classification Program
Because of difficulties getting convictions against drivers suspected of driving under the influence of drugs, the Los Angeles Police Department worked with medical professionals to develop what has become the International Drug Evaluation and Classification Program (DECP). Since its development in the 1970s, the program has since been accepted by all 50 states, Canada, the U.K., and Hong Kong. Police trained and certified under the DECP are acknowledged by courts a drug recognition experts, with their expertise accorded significant weight when presenting drug impaired driving evidence.
Under the program, officers undergo 152 hours of rigorous training to hone their skills in detecting signs of drug impairment. While standardized field sobriety testing provides the foundation for DECP training, targeting signs of "drug" impairment is the primary training focus.
12-Step Drug Evaluation Process Followed by DREs
If Ontario police determine through field sobriety testing that you may have been operating a motor vehicle while impaired by drugs, they can demand further evaluation by a DRE at the police station. Refusing to comply with this demand is considered the same as refusing to provide a blood alcohol concentration breath sample and will result in the related DUI charge, that comes with severe penalties if convicted.
Once at the police station, the DRE will carry out the following 12 steps:
- Interview the arresting officer to gain insights about the driver's suspected impairment.
- If warranted, determine whether suspected impairment is caused by alcohol. If alcohol-related testing provides evidence that BAC is over the legal limit, drug evaluation may not be necessary.
- Perform a preliminary examination to determine whether the suspect may have any medical conditions that could account for the apparent impairment. This involves asking a series of medical-related questions and examining the eyes for signs of drug-induced impairment.
- Conduct three eye tests—Horizontal Gaze Nystagmus, Vertical Gaze Nystagmus, and Lack of Convergence—that can indicate impairment by drugs.
- Conduct psychophysical tests to assess coordination and the suspect's ability to safely operate a motor vehicle. These tests include Rhomberg Balance, Walk and Turn, One-Leg Stand, and the Finger-to-Nose.
- Conduct testing of vital signs. The DRE takes precise measurements of the suspect's pulse rate, blood pressure, and body temperature.
- Conduct eye examinations by using a pupilometer to gauge the suspect's pupil size in three different lighting conditions.
- Inspect the suspect's arms for muscle tone.
- Inspect suspect's arms, hands, fingers, and neck for signs of recent or historic hypodermic needle injections.
- Question suspect about any specific evidence observed during the examination.
- Obtain a bodily fluid sample—blood or urine—as allowed by law, which is then sent to a laboratory for chemical analysis.
- Draft a report documenting conclusions of the evaluation, including their expert opinion about the impairment of the suspect and types of drugs responsible for the impairment.
DRE Evidence is Entirely Subjective
Other than any bodily fluid testing—which is not under the control of the DRE—all evidence collected by the DRE is entirely subjective. This means that all DRE evidence is wide open to a range of potential challenges. This helps raises a situation in which the DRE asserts an opinion as near fact, but the defence rebuts with a contradictory opinion that could also be fact. Every challenge raises the potential for casting doubt on the DRE's "opinions" and a conviction must be based on exceeding reasonable doubt.
However, much like murder trial evidence about cause of death will hold much more weight if provided by a pathologist rather than a non-expert police officer, the GRE's evidence carries significant weight in drug impaired driving cases. Thus, anyone charged with drug impaired driving should always seek out the services of experienced criminal trial DUI lawyers who are highly skilled at the art of cross examination and adept at raising doubt.
Given the subjective nature of most drug impaired driving cases, skilled criminal trial DUI lawyers also examine other avenues for securing favorable outcomes. In some cases, such lawyers can convince the Crown to withdraw or reduce charges by pointing out obvious weaknesses in their case. In other cases, they might target procedural mistakes or violations of the suspect's Charter Rights to secure a dismissal of charges. Defence lawyers also have strategies for negotiating favorable outcomes and are often successful in securing plea deals that mitigate penalties and the potential criminal record.
Consult with TorontoDUI for Your Drug-Impaired DUI Defence
With more than 15 years of successfully defending Greater Toronto Area defendants from all types of DUI charges, the criminal trial DUI lawyers at TorontoDUI have proven highly effective at securing favorable outcomes for their clients. If you or someone you know has been charged with a drug-impaired DUI or other DUI-related offence in the GTA, contact the highly skilled lawyers at TorontoDUI for a free consultation.