South Carolina’s appellate courts have not yet decided the issue of whether DRE testimony is admissible at trial, but the courts will most likely admit DRE testimony when: 1) The officer is qualified as an expert; and 2) The testimony is limited to the officer’s observations and conclusions based on those observations.

A drug recognition expert is not qualified to testify as to the levels of any particular drug found in the defendant’s system or what the effects of those drugs would be on the body. This type of testimony, which explains the results of blood or urine tests conducted in a lab, requires an expert toxicologist to testify.

The DUI defense lawyer in any DUI trial can: 1) Challenge the DRE officer’s qualification as an expert based on their lack of certification or other training; 2) Move to limit the DRE officer’s testimony to their area of expertise; and 3) Move to exclude the DRE officer’s testimony based on flawed methodology.

What is the DRE Protocol That Officers Must Follow?

If a trial court is inclined to admit a DRE’s testimony as to their observations and findings, it is important to ensure that the officer followed the proper procedures during their examination. If the officer did not follow the proper DRE procedures, the testimony is not scientifically reliable and should not be admissible at trial.

The 12 standardized steps for DRE are:

  1. A breath alcohol test. In S.C., the officer should first give the breathalyzer to the DUI suspect to determine whether alcohol accounts for any impairment that the officer is seeing. If the blood alcohol content (BAC) is greater than .08, there is no need for further examination.
  2. Interview the arresting officer. Unless the DRE is the arresting officer, the DRE will need to talk to the arresting officer and get detailed information about the suspect’s driving, behavior, statements, and performance on any field sobriety tests.
  3. The preliminary examination. The DRE should check to ensure that the suspect does not have any medical condition or complications that would affect the DRE tests. The DRE will interview the suspect and conduct a series of eye exams.
  4. Eye examination. The DRE should perform three eye tests each of which is standardized with NHTSA protocols for how they must be conducted. These are the Horizontal Gaze Nystagmus (HGN) test, the Vertical Gaze Nystagmus (VGN) test, and a test for Lack of Convergence.
  5. Divided attention psychophysical tests. These four tests must also be administered using NHTSA’s protocol: Romberg Balance, One Leg Stand, Walk and Turn, and Finger to Nose tests.
  6. Examination of vital signs. The officer should check the suspect’s pulse, blood pressure, and temperature.
  7. Dark room examination. The officer should take the suspect into a darkened room where they will use a device called a pupilometer to measure the suspect’s pupil size in ordinary room light, near darkness, and under direct light.
  8. Muscle tone. The officer should check the suspect’s muscle tone on their arm muscles.
  9. Injection sites. The officer should check the suspect’s arms, hands, fingers, and neck for signs of hypodermic needle use.
  10. Suspect’s statements. The officer interrogates the suspect about evidence of intoxication and the officer’s observations during the examination.
  11. Evaluator’s opinion. The DRE will document their conclusions and provide an “expert opinion” on the suspect’s condition and what type of drugs may be causing impairment.
  12. Toxicology examination. The DRE should obtain a blood or urine sample which will be analyzed at SLED or another crime lab.

Drug Recognition Expert or Toxicologist?

A toxicologist may be qualified as an expert witness to testify as to the levels of drugs found in the defendant’s blood or urine and what effect those levels would have on the defendant’s impairment. A DRE is not qualified to give this type of opinion unless they are also a toxicologist.

The DRE may be required to testify as to the collection of evidence such as blood or urine samples, how the samples were stored, and to whom they were delivered for purposes of establishing the chain of custody. The chemist who tested the samples will then be required to testify in person as to the tests that were conduct and the results of those tests. A toxicologist is required to testify as to the effects that those drug levels may have had on the defendant’s impairment.

S.C. DUI Based on Drugs?

DUI charges that are based on alleged drug use are becoming more and more common in S.C. and nationwide. As more officers become certified as DREs, it is critical that DUI defense lawyers also learn the science and methods of DREs so that we can effectively challenge the testimony in court.

If you have been charged with DUI in the Myrtle Beach, Conway, Charleston, or Columbia S.C. areas, you can schedule a free consultation to discuss the facts of your case with our DUI defense attorneys by calling (843) 488-5000 or filling out our online form.

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