Oxycontin doesn’t register on a breathalyzer, so how does law enforcement test for drug impairment? While the penalties are the same as for an alcohol DWI offense, the testing procedure for a drug DWI is far different.
When a drug DWI is suspected, the officer on duty will call a DRE expert to complete a standardized evaluation of the driver. A DRE is a member of law enforcement who has completed training and received certification from the International Drug Evaluation & Classification Program.
The 12-Step DRE Protocol
1. Breath Alcohol Test—Are the BAC test results consistent with the driver’s behavior? If not, the arresting officer will call a DRE expert for evaluation.
2. Interview of the Arresting Officer—How was the driver’s behavior, appearance, and driving? Did they make any statements about drug use? The DRE reviews the BAC results from and discusses the circumstances of the stop with the arresting officer.
3. Preliminary Exam and First Pulse—Does the driver have any health condition which may have affected their driving? The DRE will take a pulse and ask about recent health, food intake, alcohol, and any prescription drugs they may be taking.
4. Eye Exam—The DRE checks for Nystagmus (involuntary eye movement) or a lack of ocular convergence. These may be caused by the use of depressants, inhalants, hallucinogens, or high doses of marijuana.
5. Divided Attention Psychophysical Tests—The Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger-to-Nose tests.
6. Vital Signs and Second Pulse—The DRE takes the driver’s blood pressure, temperature, and pulse. Different drugs can affect these vital signs in varying ways.
7. Dark Room Examinations—How does the driver’s pupil size change under three different lighting conditions? The DRE will also check for the eye’s reaction to light. Some drugs dilate the pupils, others will constrict the pupils or slow the eye’s reaction to light. In this step, the DRE will also check the nasal and oral cavities for signs of drug ingestion.
8. Examinations for Muscle Tone—Some types of drugs can cause the muscles to be either rigid or loose and flaccid.
9. Check for Injection Sites and Third Pulse
10. Subject’s Statements and Other Observations—The DRE asks about drug use and if the arresting officer has not done so, the DRE will recite the Miranda rights.
11. Analysis and Opinions of the Evaluator—After reviewing the evaluation, the DRE will decide whether or not the driver is under the influence of drugs.
12. Toxicological Examination—The DRE may order a lab analysis of a urine, blood, or saliva sample. This is done after a decision has already been made.
While the evaluation method is thorough, the final decision is made based on an opinion. As with the Breathalyzer, a DRE test is a field sobriety test—this means it is voluntary. If you are stopped, do NOT submit to a DRE test. Many legal prescriptions can cause the symptoms on the DRE checklist. Additionally, many doctor-prescribed medications are listed as Schedule II controlled substances, making it illegal to drive with any amount in your system.
A prescription drug DWI is a complicated legal situation. It is imperative that you call an experienced criminal defense attorney before answering any questions or submitting to any tests. Read more about Prescription Drug DWI laws and defenses.
The International Drug Evaluation & Classification Program
U.S. Department of Justice DEA Office of Diversion Control
MN Office of the Revisor of Statutes