The vast majority of DWI charges in North Carolina involve alcohol, but an increasing number of these cases involve other impairing substances. People are being charged with DWI based on proof of recent use of marijuana before a traffic stop or for having been on prescription medication in their possession. The Government’s burden is still the same, to prove beyond a reasonable doubt that someone was under the influence of an impairing substance at a time relevant to driving a vehicle. Because judges and juries are less informed about how certain substances can effect a person’s mental and physical capabilities, this burden can sometimes be raised or lowered in drug DWI cases. Hiring a Raleigh or Wake County DWI lawyer familiar with these charges is the most important decision a person can make it their case.
Any substance a person ingests that can noticeably impair their normal mental or physical faculties can become the basis for a drug DWI charge if they operate a motor vehicle. This covers more than illegal substances; many people are charged even if they have taken prescription medication in the prescribed dosages. An officer is only concerned with whether the believe you are impaired and care very little about a person having legal permission to take any substance.
Drug DWI cases are generally more difficult for the State to prove. Unlike alcohol related charges where there is a legal limit as to how much can be in a person’s system, there are no legal guidelines as to how much of each impairing substance is enough to impair a particular person. Nor are there roadside sobriety tests designed to measure impairment in non-alcohol cases. For the State to create a case against a person for drug DWI in North Carolina, they usually utilize two tools that are only used rarely in other cases: officers trained as drug recognition evaluators and blood tests.
Drug Recognition Evaluators
Many prosecutors and defense attorneys mislabel these officers as drug recognition experts. That could not be further from the truth. For an officer to qualify as a drug recognition evaluator (DRE), they will have completed roughly 90 hours of specialized training. For a person to be qualified as an expert in a specific field in North Carolina, they must at least be published, have had their work peer reviewed, and use methods that are generally used in the media or scientific community. Unfortunately, the government has created this title for the officers without ever having any of their studies or data published, peer reviewed, or vetted by any scientists or doctors. Never the less, this is the system used in North Carolina, and a person charged with a drug DWI should know what to expect during a possible drug recognition evaluation.
The drug recognition evaluation is a twelve-step test that is conducted after someone is arrested for suspicion of a drug related DWI. It is always conducted by a DRE and almost always occurs at the jail. The end result of this evaluation is the DRE forming an opinion as to whether the person’s mental or physical faculties are noticeable impaired by a impairing substance.
The DRE Evaluation
A DRE will follow a twelve-step process to determine whether someone is impaired on a substance other than alcohol. All of these evaluations are supposed to happen in the same order and manner. Below is an overview of these steps:
1. An Initial Breath Test for Alcohol – Officers will want to be sure that alcohol is not the impairing substance. If a suspect registers a high enough number on a breath test, the DRE evaluation will not occur. Click here for more information on breath tests.
2. DRE Interview of the Arresting Officer – The evaluator will discuss the investigation with the arresting officer. In most of these cases, the suspect will admit to the officer what substances they have previously taken. The DRE will ask the arresting officer about anything relevant to a person’s possible drug intake.
3. Preliminary Examination and First Pulse – The DRE conducts a preliminary examination of the suspect. The most important portion of this examination for the DRE is asking the suspect which drugs they’ve recently consumed. The answer to that question will basically dictate how the DRE will formulate his final opinion; it is incredibly rare for a DRE to form an opinion as to which substance someone has taken that is different from what they have admitted. The evaluator will also make notes about the suspect’s demeanor, speech, coordination, and eyes. The suspect’s pulse is also checked three times.
4. Eye Examination – The DRE examines the suspect for horizontal gaze nystagmus (HGN), vertical gaze nystagmus (VGN) and a lack of convergence. For a more detailed explanation of nystagmus, please click here. A lack of convergence occurs when the eyes are unable to meet toward the bridge of his nose when a stimulus is moved in. It is commonly believed by DRE’s that marijuana causes this. Depressants, inhalants, and phencyclidine (PCP), the so-called DIP drugs, may cause HGN.
5. Divided Attention Sobriety Tests – The DRE then administers four psychophysical tests that are similar to roadside tests sometimes given in alcohol related DWIs: the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests. The DRE will attempt to determine whether a subject’s mental and physical faculties are impaired by administering these tests. Click here for more information on sobriety tests.
6. Vital Signs and Second Pulse – The DRE takes the subject’s blood pressure, temperature and pulse a second time. Some drug categories may elevate the vital signs, and others may lower them. Vital signs can be a valuable indicator of which substances are possible in a person’s system. Unfortunately, what the DRE training material has labeled as high or low for these categories in different from the standards in the medical community.
7. Dark Room Eye Examination – An estimation of the subject’s pupil sizes are made under three different lighting conditions with a pupilometer (literally a paper card with different circular holes cut out of it) to determine whether the pupils are dilated, constricted, or normal. Some drugs categories increase or decrease pupil size. The DRE also checks for the pupil’s reaction to light.
8. Muscle Tone Test – The DRE examines the suspect’s muscle tone as certain categories of drugs may cause the muscles to become rigid or flaccid. Other categories may cause the muscles to become very loose and flaccid.
9. Check for Injection Sites and Third Pulse – The DRE will examine the suspect’s body for injection sites, indicators recent use of certain types of drugs. This usually includes arms and hands but may include feet in certain scenarios. The DRE also takes the subject’s pulse fora final time.
10. Subject’s Statements and Other Observations – The DRE will asks the suspect a series of questions regarding their drug use after reading them their Miranda warnings. This will generally not warrant different answers from those given earlier about drug use.
11. Opinion of the Evaluator – The DRE will evaluate all the previous steps and, based on the totality of the circumstances, will form an opinion as to which substance or substances someone has consumed and whether the the person is noticeable impaired on those drugs. Almost all DRE’s will utilize a chart called the DRE Matrix to help form their opinion. A copy of the Matrix is included below.