In California it is possible to be charged with a DUI for marijuana. However, unlike alcohol impairment, drugs are not absorbed and eliminated in a predictable manner to create a foreseeable pattern of behavior, which is why it is difficult to create a “per se” drug impairment level. As a result, researchers have concluded that we currently lack the data to establish a correlation with a specific drug concentration levels and “per se” drug impairment levels that should apply to DUID cases. Researchers have recognized that there is a ‘paucityof objective data’ to support the creation of “per se” drug testing levels to support drug impairment claims in DUID cases.
In most DUID arrests the officer that makes the decision is called a Drug Recognition Expert (DRE). To determine whether a driver is under the influence of a specific category of drugs other than alcohol, DREs use a 12-step procedure based on a variety of observable signs and symptoms that are known to be reliable indicators of drug impairment. All DREs, regardless of agency, use the same procedures, in the same order, on all drivers. In theory, a DRE will not reach a final decision until the entire evaluation is complete.
The 12 steps of the DRE protocol that are required by NHTSA include the following:
(1) breath (or blood) alcohol concentration; (2) interview of the arresting officer; (3) preliminary examination; (4) eye examinations; (5) divided attention tests; (6) vital signs examination; (7) darkroom examination of pupil size; (8) examination of muscle tone; (9) examination of injection sites; (10) statements, interrogation; (11) opinion; (12) toxicology analysis.
A DRE’s opinion is based not on one element of the test, but on the totality of the evaluation. When in doubt, the DRE must find the driver is not under the influence.
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