METHOD OF CATCHING DRUGGED DRIVERS UNDER FIRE

Group Of Defense Attorneys Challenging Practice Says It's Not Reliable.

Step out of the car. Walk a straight line. Stand on your left leg while
holding your right leg 6 inches above the ground. Say the alphabet.

If you can't perform these tests, you could be arrested on suspicion of
driving while intoxicated.

But some people who are arrested for failing the field sobriety tests have
blood alcohol levels below the legal limit - .08 percent in Missouri. They
are impaired, but not by alcohol.

The driver's brush with police doesn't end there.

A different battery of tests - such as blood pressure, body temperature,
pupil size and muscle tone - that some officers are certified to perform
can determine if the driver is impaired due to drugs.

An officer who is a certified drug recognition expert (DRE) can tell within
85 to 95 percent accuracy whether the driver has taken depressants,
stimulants, hallucinogens, PCP, narcotic analgesics, inhalants, cannabis or
a combination of drugs, those who developed the testing said.

Police and prosecutors say the method is making streets safer. But a group
of defense attorneys who are challenging the practice in Greene County
Circuit Court say it is unreliable and does not measure the level of
impairment or when the impairment occurred.

"They're utilizing standard field sobriety tests developed for alcohol
impairment in the drug arena," said Springfield defense attorney Bob
Childress. "Most of the testimony seems to indicate that the chemical tests
- - urine or blood - can indicate the presence of drugs, but not drug
impairment. With alcohol, there's an established level of impairment. They
measure to .08 in Missouri. With drugs, there's no scientific levels of
impairment. The presence doesn't mean impairment."

Childress and about nine other attorneys have spent three days hearing
testimony put on by the Greene County prosecutor's office on the
reliability of the drug recognition experts. The hearings, heard by Circuit
Judge Calvin Holden, are scheduled to continue April 1-3.

Assistant Greene County Prosecutor Don Crank and the National Highway
Transportation Safety Administration arranged for two nationally recognized
experts to travel to Greene County and testify about the reliability of the
program.

"I know of no alternative to this," said Tom Page, who worked for the Los
Angeles Police Department in the late 1970s and early 1980s, when the DRE
program was first developed, and testified for the county last week. Now
retired, he helps states that want to get the program certified in court.

"I don't know of anybody actually in the world that has developed an
alternative to a well-trained officer making a decision," Page said. "I
think that's what it comes down to."

Local experts

Springfield police Cpl. Darren Whisnant was one of the first officers in
Springfield to become DRE-certified about three years ago.

As a member of the department's DWI enforcement unit, Whisnant's primary
duty is to patrol Springfield for impaired drivers.

When a driver is believed to be impaired, an officer administers the field
sobriety tests. If the driver fails, the driver is arrested for DWI. Once
at the jail, the person is asked to blow into the blood alcohol content
machine.

If the result is under the legal limit, but the driver still appears to be
impaired, Whisnant or another DRE begins to perform a series of 12 steps.

After doing some tests and determining whether the driver has any medical
conditions that would cause the results to be unreliable, the DRE makes an
opinion as to what type of drug the person is on. Then a urine or blood
test is done so a toxicology test can confirm the officer's opinion.

No Missouri court has ever recognized a DRE as a court-certified expert,
although the program has been used here since about 1990. Although 35
states have DREs, only seven other states have gone through the hearings to
certify them in court. All seven have recognized the method as reliable and
three of those states have affirmed the DREs as experts at the appellate level.

If Judge Holden decides that the method of testing of drug impairment is
reliable, then officers trained as drug recognition experts would be
allowed to testify in Greene County to their opinion of a driver's
impairment in court.

"In order to establish the drug recognition expert's training, experience
and ability to give an opinion, I have to establish that he has the
training and experience and that the training and experience he's received
... is documented through previous scientific studies," Crank said.

Dr. Marcelline Burns, who works with the Southern California Research
Institute, developed the now-standard alcohol field sobriety tests and also
testified as to the method's reliability.

"Drugs are a very large and often unrecognized problem in traffic safety,"
Burns said. "... There is no other method to identify the impairment and
kind of impairment so individuals can become accountable."

Whisnant and other DREs find the method to be a useful tool out on the
streets. Whisnant said he is 95 percent accurate about the type of drug the
person is on and the toxicology test either affirms or contradicts his opinion.

"We were making vehicle stops and seeing that people were impaired,
however, they didn't have a high level of alcohol in their system,"
Whisnant said. "Their blood alcohol content level was not consistent with
their level of impairment and we didn't know why.

"With this training we're able to tell if it's a medical reason or if it is
caused by drugs other than alcohol," he said.

Whisnant said he has performed about 70 drug recognition examinations this
year so far and about 65 last year.

"Springfield's police department and Springfield's citizens are demanding
and insisting that we will not tolerate our citizens being killed by drunk
drivers," Whisnant said.

Missouri Highway Patrol Trooper Cort Stewart is one of two troopers
stationed at Springfield's Troop D who has gone through DRE training that
he said is rigorous. Stewart patrols Greene County; the other trooper is in
Barry County.

Stewart spent more than a week in classroom training and then went into the
field and performed 12 drug recognition evaluations. He had to take an
extensive written test in order to be certified and, like all DREs, has to
be recertified every two years.

Although proponents of the program argue that the 12 steps are too
subjective, Stewart disagrees.

"It's extremely objective," he said. "The whole drug evaluation process is
systematic and standardized. It takes the whole human body physiologically.
How is somebody's body temperature subjective? Or the inability to walk a
straight line subjective? Or somebody whose speech is slurred and you can't
understand what they're saying. How is that subjective?"

Stewart has only performed about 12 to 15 evaluations since he became
certified in 1999, but the training involved and the recertification keeps
him up-to-date on the method. This year he attended an eight-hour seminar
on rave drugs, such as ecstasy, as part of his recertification.

"It's an extremely valuable tool," Stewart said.

For the defense

Defense attorney Bob McGee hopes Holden doesn't find that the
drug-recognition method is reliable. His client is counting on it, too.

"The process set out is too subjective to be of any value," McGee said.
"There's no objective determination that is made by an officer, unlike an
alcohol-related case where it's proven that if the person behaves in a
certain manner it can prove alcohol content of the blood. There's no
correlation for the drug program."

Childress, McGee and their fellow attorneys plan to present their own
witnesses when the hearings resume in April. Meanwhile, the clients whose
cases are involved in the hearings continue to wait for a decision to find
out how their case will progress.

"It's only reliable in (Burns') opinion 85 percent of the time," McGee
said. "At least 15 percent of the time they're wrong. I'd hate to be one of
the 15 percent of people convicted under the influence when an officer is
just flat proven wrong."