Las Vegas Sun

January 18, 2018

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Officers get training on drug detection

About two dozen law enforcement officers from throughout the state are undergoing training in a program designed to help identify drug intoxication by a specific 12-point examination that will supplement information prosecutors can use in court.

The officers, including three from Metro Police, are hoping to become certified as Drug Recognition Experts. The exam administered by DREs includes three blood pressure readings, three examinations of pupil movement and three examinations of pupil size under different lighting conditions. The tests are used to determine whether a suspect is using one of seven categories of drugs.

That information, along with other tests, such as blood or urinalysis, is then used by prosecutors, who may also call a DRE to testify.

The DRE starts the examination, which can last up to an hour, in a jail cell and sometimes finishes the analysis weeks later in a courtroom, testifying as an expert but never being too specific.

"It's basically backup or supporting evidence," Deputy District Attorney Bruce Nelson said. "The DRE will never say a person is specifically under the influence of a certain drug."

Instead, after the battery of tests is complete, the DRE determines what category of drug a person has used, limiting the verdict to a generic "narcotic analgesic," rather than heroin, or a "central nervous system stimulant," instead of crack cocaine.

But while police say DRE testimony can help put dangerous drivers behind bars, some DUI defense lawyers argue that such testimony is often just a technique for police to drum up charges.

"I believe (the DRE examination) is more of a fishing expedition than anything else," attorney John Watkins said. "I'm of the opinion you don't really need an experienced person to show it if a person is impaired."

While Nevada's Supreme Court has not heard a challenge to DRE testimony, DREs' testimony is widely admissible throughout Clark County, provided the expert doesn't claim too much, Nelson said.

In a courtroom, DRE testimony is "taken into consideration within a larger picture," said Metro detective and DRE instructor Bill Redfairn.

"Just like any other expert, the judge or jury is going to lend whatever weight (to the testimony) they decide, but a lot of times, the DRE can help explain the signs and symptoms."

When the 12-point exam is conducted correctly, DREs have a 90-95 percent accuracy rating in predicting what category of drug a person is using, he said.

Because the DRE examination is based on appearances - a pupil that looks too constricted or muscles that seem too tense - there's no absolute certainty a person is intoxicated, said Watkins, a defense attorney who estimates he has handled about 6,000 DUI cases in 27 years.

Testimony from a DRE may not be absolute, but it's "deadly in front of the jury," Watkins said. "You can get someone to believe these tests are foolproof, but they're not. Bottom line, everybody's eyes jerk."

Garrett Ogata, a Las Vegas attorney specializing in DUI defense, uses his own experts to refute DRE testimony.

Most DUI tests can be poorly administered or be ruled faulty, said Ogata, citing one client who was incorrectly ruled intoxicated by a DRE .

"(The client) followed all their guidelines, his eyes were rolling, he was stumbling, he couldn't even talk, he looked and sounded like he was totally intoxicated," Ogata said. "They arrested him, they had him in jail and they found out later he was diabetic."

The Clark County district attorney's office uses DRE testimony for felony DUI cases and would probably use the police experts for misdemeanor charges if they were more readily available, Nelson said.

Redfairn estimates that 30 percent of all individuals examined by DREs are under the influence of prescription drugs, most notably anti-anxiety medicine Xanax, prescription pain reliever Oxycontin and sleeping aid Ambien. That's a threefold increase over five or six years ago, he estimated.

"Even something as benign as heart medication for blood pressure," he said. "Even that changes you when you initially start it, and during that adjustment period, people are a danger to others."

Redfairn is one of two certified DREs working for Metro. Six officers initially signed up for the intensive training class in early May, though the student officers have since been reduced to three. DRE standards are so stringent and the training course so demanding, more than half of all law enforcement officers enrolled typically fail or quit the program, he said:

"Part of it is the time commitment, and part of it is the program has a lot of integrity - you're training people to be experts, and all through the class, there are exams and quizzes and practical exams. If they don't do well, we send them home."