DUI

In 2020, an audit by the Michigan State Police revealed irregularities in maintenance reports from the old DataMaster breath alcohol machines then in use throughout the State. DataMaster contract maintenance and calibration vendors were evidently falsifying records on service, diagnosed and calibration. At the same time, there was a thought in law enforcement circles that the DataMaster was based on outdated science, and that there were better machines available.

As a result, the State Police pulled all DataMaster machines out of service, and recommended that local police use blood draws, until a plan of action could be devised.

The State Police decided to switch in-station alcohol testing to the Intoxilyzer 9000. There are a number of differences between the two machines, but the two most meaningful are these: 1) the new Intoxilyzer is designed to differentiate legally-present ethanol compounds, such as acetone, that might be present in the breath of diabetic, or fasting drivers; and 2) the older DataMaster required weekly and quarterly manual checks, which often tripped up law enforcement, while the new Intoxilyzers run an automated program that is supposed to verify calibration, backed up by manual inspections every six months.

The switch to the new machines has brought new potential defenses into the courtroom. First the Intoxilyzer generates a graph, as part of its report on each alleged drunk driver; the reports may contradict that top-line assertion of the machine, that the person had any, or too much alcohol in their system.

Secondly, the old DataMaster machines used to have Michigan’s statutory 15-minute observation period wired into the machines. Not so with the Intoxilyzer.

Thirdly, there are potential rounding errors created by the machine; for example, if a person tests at just over the legal limit of .08% BAC, say at .081% or .082%, it is possible to use the machine’s anticipated error rate, to argue reasonable doubt.

Finally, the relaxation of human inspections of the machines from weekly/quarterly, to every six months, arguably creates uncertainty, and therefore, reasonable doubt.

Like most US States, Michigan has an “implied consent” law, by which our mere use of the roads, is deemed to give consent to police officers, to test our breath, blood, or urine for alcohol content. 

It is important here to distinguish the roadside “Preliminary Breath Test”, or PBT, from the blood/breath/urine test requested later on in the process, by the police.  Yes, a typical drunk driving arrest will, or at least may result in two alcohol tests being required of you.

The roadside PBT, most commonly the first of the two tests, is helpful to the police in determining whether a motorist is under the influence of alcohol, but it is not sufficiently accurate to be admissible into evidence, in a court of law.  Typically, when the officer stops you for suspected drunk driving, they will request that you undergo a PBT.  If you refuse this roadside PBT, you may be liable for a civil infraction, under MCLA §257.625a.

Why You Might Want to Refuse the PBT

There are a number of “Standard Field Sobriety Tests”, or SFST’s that are supposedly validated to determine if a motorist is under the influence of alcohol. If the manner in which these tests are administered, can be challenged, the PBT may well be all the police have to establish probable cause to arrest you. Without the PBT, and the field sobriety tests, probable cause could vanish, and the charges may well be subject to dismissal.

That is precisely what happened in People v Mullen, 282 Mich App 14; 762 NW2d 170 (2008). In Mullen, the Court found that the officer had included false information on his Affidavit for the search warrant for the motorist’s blood; therefore that Affidavit was not considered. In that case, the SFST’s were invalidated, because they were not done in a standardized way, leaving the PBT as the sole basis for consideration of probable cause. Because the PBT in Mullen was not done in conformity with Michigan’s Administrative Code rules, requiring a 15-minute period of observation, the PBT was thrown out, and thus the overall finding of probable cause, the therefore, the validity of the arrest.

Effect of Refusing the Roadside PBT

For most adult drivers, refusal of the roadside PBT will result in a civil infraction and fines, but typically no points. For drivers under the age of 21, the refusal is still no more than a civil infraction, but 2 points will be added to the record. A person operating a commercial vehicle, who refuses a roadside PBT is subject to misdemeanor charges, with potential jail time of 93 days, and an “out-of-service” order for 24 hours.

Isn’t It Enough To Comply With “Breathalyzer” At The Scene?  IN SHORT, THE ANSWER IS NO.  That is one reason it is so important to distinguish between the roadside PBT, and the test the police want you to take later on in the process.

The test at the police station, or quite possibly at a hospital ER is the one subject to the “implied consent” law.  The police officer has the choice of requesting blood, breath or urine testing, although they rarely request urine testing.  Breath alcohol is the most common, but blood alcohol testing is quite common as well.

If you refuse the formal Intoxilyzer test at the police station – again, the one that takes place after you are removed from the scene of the arrest – you are subject to having your license revoked for an entire year, or more depending on how many previous refusals there have been, or whether you were operating a commercial motor vehicle.  Under MCLA §257.625e, you may request a hearing before the Secretary of State’s Office, but you must may that hearing request within 14 days of the arrest.

That is why you need to call me ASAP, following a drunk driving arrest.  The clock may well be ticking against you on this short 14-day time, to request a hearing.

By requesting a hearing, you have effectively delayed the revocation of your license.  That alone, may be reason to request a hearing.

What happens at the hearing?  First, you should know that currently, the Michigan Secretary of State’s Office conducts these hearings by a videoconference software link, known as “Microsoft Teams”.  This became more prevalent during the Covid-19 pandemic, and like many other court proceedings, they have continued to use this technology, even though the pandemic threat is thankfully behind us.

The Michigan Secretary of State Office of Hearings & Administrative Oversight, which conducts the videoconference license hearings, does so only via Microsoft Teams (most courts use Zoom platform; the only difference is that “Teams” is a competing product); we are required to use it, because that is how the Secretary of State conducts its hearings.

I am providing you a link, here, to the Microsoft Teams download site, if you want to download it to your computer.

Under MCLA §257.625f(4), an implied consent hearing is limited to the following four issues:

• Whether the police officer had reasonable grounds to believe that the person had committed the offense of drunk driving, as defined in MCLA §257.625c(1).

Even if this arrest is later determined to be improper, resulting in a dismissal of the charges, the police officer’s reasonable grounds to believe that the motorist had been driving while intoxicated is a sufficient basis to make this an “implied consent” issue.  In other words, you can still lose your license, even though you beat the DUI.

• Whether the motorist was placed under arrest for the offense of drunk driving, as defined in MCLA §257.625c(1).

• If the person refused to submit to the rest upon the request of the officer, whether the refusal was reasonable; and

• Whether the motorist was advised of their rights under MCLA §257.625a(6), specifically:

• That they have a right to demand that a person of their choosing administer one of the blood/breath/urine tests;

• That the results of the test are admissible in court, and can be used to determine innocence or guilt;

• That any test that they may want is their responsibility to obtain;

• That if they refuse the officer’s request for a test, that the test cannot then be taken, but the officer may request a court order that you submit to testing; and

• That refusing an officer’s request to take the test will result in a suspension of their license, and the addition of six points to their driving record.

This is a fraught, complicated area of the law, and one that many folks do not realize may impact them as hard as it will.  You need capable counsel, who can see the “implied consent” issue, even if you do not see it yourself.  Give me a call at (586) 727-1900, or by e-mail at jon@jonfranklaw.com.

Under Michigan’s Admin. Code Rule 325.2655, the officer administering either the PBT or the Intoxilyzer test, is required to observe the subject for at least 15 minutes, before having the subject submit a breath through the machine. During this time, the person must not smoke, regurgitate, or put anything in their mouth. This 15-minute period of observation is also designed to let any residual alcohol in the test subject’s mouth to be eliminated, and thus not affect the test (the purpose of the test, is to measure breath alcohol, not mouth alcohol)

In the DataMaster machines, no longer used in the State of Michigan, there was an internal 15-minute observation period, built into that machine’s test protocol. With Michigan’s change to the Intoxilyzer 9000, that 15-minute period of observation is no longer mechanical, and must be conducted by the officer, who must be certified to operate the machine. The officer operating the machine need not stare continuously at the test subject, in order to meet this standard, as long as they keep the test subject within their field of vision, even while performing paperwork functions.

In common everyday usage, we often refer to a drunk driving offense as a “DUI”, meaning “driving under the influence”.  This is actually the term used in many other states, but it is not used here, and the distinction is important.  In Michigan, one need only be “operating” a motor vehicle while intoxicated, in order to be guilty of this crime; one need not be “driving”.  Here in Michigan, the offense is referred to as “OWI”, meaning “operating while intoxicated”.

Before discussing that distinction, I should mention that MCLA §257.625(1) sets forth a number of ways a person can be “under the influence, or intoxicated.  A person could be deemed intoxicated, by virtue of their use of drugs, and not alcohol.  As well, a person could have an unlawful level of blood alcohol (sometimes referred to by its acronym, as “UBAL”), i.e., one exceeding .08%. 

As well, a person could be operating/driving a vehicle, with a blood alcohol less than .08%, and still be impaired in their ability to drive a motor vehicle.  “Operating While Intoxicated” is a more serious drunk driving charge, than would “Operating While Visibly Impaired” (or OWVI), at least based on points, fines and penalties.  OWI charges are often negotiated down to OWVI, particularly for the first time offender.  Also, “High BAC” charges are often negotiated down to a regular OWI charge.

In any event, the broad term of “operating while intoxicated” instead of “driving while intoxicated”, would seem to make it easier for police to charge/prosecute someone for operation of a vehicle.  This is particularly true, because Michigan appellate courts have issued rulings holding that conduct inside of a vehicle, short of driving, has been held to be “operating while intoxicated”. 

Often, if a person is behind the wheel, with the engine on, and/or there is some other danger that the intoxicated person might once again put the vehicle in motion, that person is considered to be “operating”.  Where they are not in a position to put the vehicle in motion, or into a situation involving significant risk of collision, such persons have been held not to be “operating”.  These “operating” cases are often fact-specific, and I have a number of them going on at any one time. 

We will just have to talk about the facts of your case.  Perhaps you have a good defense to “operating”, under Michigan law.

Making things somewhat/marginally tougher for the prosecution, is the requirement that the intoxication be contemporaneous with the operation.  Police often come upon someone at an arrest scene, find them to be intoxicated, and automatically assume that they drank either before they drove to the scene, or drank during the drive.  Depending on the facts, it is often just as likely that the person came to the scene, and got intoxicated at the scene, after driving over. 

Remember: we do not need to prove that you were not intoxicated while operating the vehicle.  The prosecution needs to prove – beyond a reasonable doubt – that you were.  This is a big difference.  Here is the jury instruction, that a jury will be instructed on, if we take your case to trial.  They must show operating while intoxicated, requiring contemporaneous operation and intoxication.

When it comes to defending your legal rights in an OWI situation, give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com.

Some time ago, Michigan enacted enhanced penalties drivers, whose blood alcohol level exceeds .17%. Under Michigan’s “Super Drunk” law, including mandatory one-year alcohol rehabilitation, a one-year license suspension, the first 45 days of which is a so-called “hard suspension”, meaning no driving at all.

During the remaining 320 days, the driver can seek restricted driving privileges, but only if monitored by a breath alcohol ignition device (or “breath interlock device”), installed and maintained in the vehicle, at the expense of the driver.

While technically, someone with multiple OWI’s on their record can still be arrested, charged and prosecuted for a “Super Drunk”, or “High BAC” offense, the distinguishing feature of the charge is enhancement of sentence/punishment.

Someone with multiple offenses, and someone with other aggravating factors (OWI causing death, serious impairment, or child endangerment), will have much greater penalties to worry about, due to the enhancements that come with felony drunk driving, endangering a child, etc. In other words, a “High BAC” charge really impacts the first-time offender, perhaps more than it would for the already sentence-enhanced repeat offender.

Click here to download a copy of the comprehensive chart.

In the 1920’s and 1930’s, Swedish chemist and researcher Erik Widmark developed an equation that estimates a person’s blood alcohol concentration; that formula is still be used today.

Using the Widmark formula, as breath alcohol testing machines do internally, and mechanically, you can calculate the anticipated blood alcohol level one would expect from consuming a certain amount of beer, wine, or hard liquor. One can also calculate how many drinks of different types of intoxicant, it would take to elevate one’s blood alcohol level to a given number. Constants are built into this well-accepted formula, to account for physiological differences between men and women, and between heavier and thinner people.

Rather than drag you through a complex mathematical formula, I am instead providing a link below, which should give you a quick approximation as to the blood alcohol level you can expect from drinking various amounts of beer, wine, or spirits. Blood Alcohol Content Calculator

Click here to download a copy, FOR FREE.

If you have been stopped for alleged drunk driving, you may have more than just the criminal problem. YOU MAY BE UNDER A 14-DAY TICKING TIME BOMB, if you have refused the in-station Intoxilyzer, or the blood test (whichever the police officer directs).

Under Michigan law, your use of roads and highways is held to show your implied consent to provide breath alcohol testing. MCLA §257.625c. Thus, there are consequences for your refusal to submit to the testing, that you have “impliedly consented” to giving.

If you have refused breath alcohol testing, you have 14 days from the date of the arrest, within which to request a hearing before a Secretary of State Hearing Officer.

Failure to request that hearing within 14 days will result in a 1-year suspension of driving privileges, plus six points on the driving record. A second refusal within 7 years is punishable by a 2-year suspension, plus six points.

Incidentally, if you have refused either a blood test, or an Intoxilyzer at the police station, the police will simply subpoena a blood sample, and get it from you anyway. That way you lose twice: the police have your blood sample, which usually tests a little higher than breath, AND you will still have the “implied consent” 14-day problem to surmount.

Are there scenarios in which refusal of the blood test or Intoxilyzer actually makes sense? It may make sense where a drunk driving incident resulted in someone’s death (a 15-year felony) or serious injury (a 5-year felony). Refusing the blood test/Intoxilyzer may preserve an opportunity to keep this adverse evidence away from a jury hearing your case.

Therefore, when we speak for the first time, please make sure to tell me whether you complied with the police officer’s request for a blood test, or an in-station Intoxilyzer breath test.

1. Whether the officer had reasonable grounds to believe you were driving under the influence;

2. Whether you were in fact arrested for this offense;

3. Whether you refused to submit to the test, upon the officer’s request AND whether that refusal was reasonable; and

4. Whether you were advised of your chemical test rights under MCLA §257.625a(6)

Most of the litigation revolves around Points 1 & 3. If you are getting to the stage of an implied consent hearing, a police officer has likely arrested you for a drunk driving offense. It is not likely that the resulting arrest will be for another crime like bank robbery, or assault. Similarly, like many professions, police are guided by forms and paperwork, to make sure that they are complying with their rules. One of these forms is a DI-177 “Chemical Test Rights Form”, linked here. Even if the officer does not read it off to you, it will set forth your chemical test rights, and you will be given a copy.

The other two Points are fact-specific, and should be decided on a case-by-case basis.

Point No.1

Not long ago, I dealt with a driver who was in fact, driving under the influence; he was brought to the attention of police by a fast food drive-through attendant, who thought my client was drunk, and the attendant called the police, who got there quickly enough to see my client pull out of the fast-food store’s parking lot.

My client was arrested about 10 minutes later, but only after strictly complying with speed limit laws, yielding to oncoming traffic, not swerving etc. All of my client’s careful driving was captured on the police officer’s dashcam. So too, were the police officer’s comments to one of his fellow officers to the effect that “we really had no reason to stop him, but we did so, just to be on the safe side”. We beat the officer at the implied consent hearing.

Point No.3

I have had a couple of cases dealing with this point, some which resolve in favor of the motorist coming some which do not. In one, my client wrapped his pickup truck around a telephone pole, end was lucky to come out of that incident alive. He was taken to the hospital, where he ultimately had to undergo surgery. Between the time he was brought in, and the time he was taken to surgery, the police requested a blood sample, and my client simply did not give them a straight answer to the question of whether he would comply or not.

Ultimately, blood had to be taken from my client, as part of the medical procedure, and Michigan law, MCLA §257.625a(6)(e) allows for the use of this blood, regardless of consent granted or not granted. I argued at the “Implied Consent” hearing that my client did not overtly refuse to give up his blood (remember, he never gave them a straight answer), and in any event, it was irrelevant, because Michigan law was going to allow the police to use the blood anyway. In some of these “medical procedure” cases, the Hearing Officer bought the argument, and denied the revocation of the license; in others, the Hearing Officer rejected the argument, and revoked the license.

In still other “Point No3” cases, I have had clients who were accused of not cooperating, because the police said that they willfully did not blow hard enough into the breath alcohol testing device. In yet still others, the clients were “happy drunks”, willing to cooperate with the police, but were simply too stoned to do so, and the police interpreted that as a refusal. I have had pretty good success in turning back these “implied consent” attempts to revoke my clients’ licenses.

 The burden of proof is on the officer, although you and I will have the burden of proof as to any affirmative defenses; the standard is “preponderance of evidence”, and not “beyond reasonable doubt”

While police have used a number of performance measures, out in the field, to determine whether or not a motorist is impaired, only three have been “validated” by the National Highway Traffic Safety Administration, or NHTSA. Those three tests are as follows:

Horizontal Gaze Nystagmus (HGN)Test

Walk & Turn (W/T)Test; and

One Leg Stand (OLS) Test

The HGN test was considered accurate 77% of the time, in detecting BAC levels of .10%, while the W/T was accurate 68% of the time, and the OLS was considered accurate 65% of the time (Barone, Mich Bar Journal, 2005). When all three tests were used together, they raised the “accuracy” of detection at 82%.

Another way to state the “accuracy” levels is to say that the HGN test was INACCURATE 23% of the time, while the W/T was inaccurate 32% of the time, and the OLS, inaccurate 35% of the time. Even when used together in combination, the three SFST’s were inaccurate 18% of the time.

It seems odd that these tests would be given the appearance of approval by a US Government agency, with inaccuracy rates between 18-35%. The Preliminary Breath Test devices, whose results are kept out of evidence in Michigan courtrooms, except for limited purposes, have much lower error rates than SFST’s, up to 12%

How the HGN Test is Done

The HGN test is based on an involuntary response in one’s eye, that is supposed to be indicative of alcohol/drug consumption. A stimulus, like a pencil, a penlight is used, as long as it contrasts with the background against which it is seen

*The motorist is told to stand with feet together

*With their hands at their sides

*Holding their heads still, while

*Following the motion of the stimulus, with eyes only

Each eye is checked, beginning with the left; if the motorist is particularly tall, the officer may not be able to clearly see nystagmus (the involuntary jerking of the eye), and may need to direct the motorist to sit down

Two or more passes are made before each eye, to look for the jerking/nystagmus response, which the officer is looking for at “maximum deviation”, or as far as the eyeball can move without showing much or any of the white portion of the eye. The officer is looking for the onset of nystagmus before reaching 45 degrees, something he/she is supposed to be able to see and determine, as vehicles are whizzing by them on a busy freeway or street, often in the dark.

Moreover, there are also physiological, non-alcohol/drug reasons that nystagmus exists, and police officers are supposed to be trained to distinguish those that relate to non-alcohol/drug factors, and those that relate to ingestion of drugs/alcohol.

The Walk & Turn Test (W/T)

While the manuals from the National Highway Traffic Safety Administration put the error rate on the W/T at “only” 21%, and not the 32% quoted above, that 21% is still nearly double the error rate on a device that Michigan law has held inadmissible in a court of law.

Unlike the HGN which is supposed to be valid, because it relies on involuntary responses, the W/T test is a test of “divided attention”, which NHTSA has determined (with good reason) is a test of a skill needed to drive safely, i.e., being able to pay attention to multiple stimuli, all at once. W/T is designed to divide your attention between “balancing”, information processing and listening. As seemingly valid as that may sound, much depends on the administration of the test, by the police officer.

The standardized W/T test is done as follows:

The subject stands with their feet in a heel to toe position (awkward and unstable positioning); they are told to keep their arms at their sides, and to listen to the instructions

Take 9 heel to toe steps

Turn in a prescribed manner

Take 9 heel to toe steps back to origin point

Count the steps out loud

Keeping arms at the side, and

Watching their feet (making one more unstable)

The officer’s “evidence of impairment” is that you cannot keep your balance, while listening to instructions; start too soon or too late; stops while walking; does not touch heel to toe; steps off the line; uses arms to balance; makes an improper turn; or takes an incorrect number of steps. If the officer finds any two of these, you will score “impaired” on this test, despite problems with the test, articulated in one of the NHTSA manuals as far back as 2002.

One Leg Stand (OLS)

In this “divided attention” test, the motorist is instructed to

Raise one foot to about 6” off the ground

Keep the arms at the side

Keep the legs straight

Keep the raised foot parallel to the ground

AND AT THE SAME TIME

Count out loud “1001”, “1002”, “1003”, until told to stop.

The person must maintain their raised foot in the required position for 30 seconds, allegedly because some drunk drivers displayed an ability during validation testing, to keep their raised foot up for a period of 25 seconds.

Alleged evidence of intoxication, as revealed by the OLS are as follows:

Swaying while balancing

Using the arms to balance/stabilize

Hopping

Putting one foot down

If it sounds impossible, or extraordinarily difficult, that is because it likely is – even when you are sober.

OWI

OWI-2nd

OWI-3rd & up

OWI causing death

OWI causing serious impairment

OWI causing child endangerment

OWI in the presence of drugs

The legalization of marijuana in 2018 suggests at least that there will be more marijuana-impaired drivers on the road. Intuitively, it makes sense that marijuana and/or other drugs might impair a person’s ability to drive their vehicle. Michigan is often called a “zero tolerance state” for drugs, meaning that no amount of drugs will be tolerated on testing, as contrasted with alcohol, where there is a .08% BAC threshold. Thus, it is important to know what methods police have to determine, and to quantify just how “stoned” a driver is on marijuana, or other drugs.

Saliva Swabs

Standard Field Sobriety Tests (SFST’s)

Drug Recognition Evaluation

Each is fraught with potential inaccuracy, and thus, Michigan law has imposed limitations on their use in courtrooms around the state.

Saliva Swabs

Throughout Michigan, devices like Securetec’s “Drugwipe” and Draeger’s “DrugTest5000” are used by police to collect roadside samples of saliva, to test for cannabis/THC, cocaine, amphetamines, metamphetamines, opioids and benzodiazepines. The results usually appear within 5-15 minutes, and are designed to identify recent use, as opposed to residual non-impairing traces of the drug. Officers will take one sample to determine probable cause for arrest, and a second sample for testing at a testing facility, for use in Court.

However, due to accuracy limitations, Michigan statute MCLA §257.625r limits the use of oral fluid analysis to 1) determining the validity of an arrest (i.e., was there probable cause to arrest?); 2) as evidence for use by the accused to rebut cross-examination testimony elicited by the prosecutor as to the presence/absence of drugs not found in earlier chemical testing; and 3) as evidence for use by the prosecutor, to rebut affirmative evidence offered by the accused that there were no drugs in the accused’s bloodstream

Standard Field Sobriety Tests

SFST’s are discussed elsewhere on this site. Please refer to that discussion.

Drug Recognition Experts (DRE)

Like many other states, Michigan is experimenting with a program to recognize certain police officers as certified DRE’s, to assist in removing drug-impaired drivers from the road. The certification process requires completion of the 72-hour DRE classroom program, 32 hours of DRE field certification training, and recertification every two years. This pilot program, authorized by MCLA §257.625t, is based on protocols issued by the International Association of Chiefs of Police, (IACP) and NHTSA.

These DRE’s are supposed to be able to test for, or determine impairment of a motorist by one or more of seven drug categories:

1. Central Nervous System Depressants

2. (CNS) Depressants

3. Hallucinogens

4. Dissociative Anesthetics

5. Narcotic Analgesics

6. Inhalants

7. Cannabis

The DRE’s testing protocol is a 12-step process, consisting of:

1. Breath Alcohol test

2. Interview of the Arresting Officer

3. Preliminary Examination and First Pulse

4. Eye Examination

5. Divided Attention Psychophysical Tests

6. Vital Signs and Second Pulse

7. Dark Room Examinations

8. Examination for Muscle Tone

9. Check for Injection Sites and Third Pulse

10. Subject’s Statements and Other Observations

11. Analysis and Opinions of the Evaluator; and

12. Toxicological Examination

Much of this “process” is based on the subjective opinions of a non-medically trained officer (however much they want to dress up their training as somehow conferring expertise)

What triggers use of a DRE, is when the arresting officer determines that there is “apparent impairment”, not explained by a breath alcohol test. He/she then calls in a DRE officer, who discusses this with the arresting officer.

The DRE then conducts an examination to see if there is another explanation for the impaired motorist’s condition, other than drug use, by asking a series of standardized questions. The DRE “analyzes” pupil size, pulse and horizontal gaze nystagmus (HGN).

Item #4 on the IACP merely repeats the requirement for analysis of nystagmus, both horizontal and vertical (up/down eye jerks). Then “divided attention” tests, such as W/T, OLS are administered, along with other tests (e.g., “Finger to Nose”). Indeed, some of the IACP test protocols are merely repeats of previously expressed protocols, meaning that there are fewer than the 12 steps that seemingly form the basis of a DRE’s drug impairment determination.

The DRE then takes the subject’s blood pressure, temperature, and pulse, before examining the subject’s pupil sizes under different lighting conditions with a device called a “pupilometer”. While the methodology is accepted in the scientific community, the standards used by most police agencies was considered “too sensitive’ in a 2004 study conducted through the National Institutes of Health (NIH). In other words, the way the police use this otherwise acceptable methodology comes up with too many “false positives”

The examination then addresses the issue of “muscle tone”, in which the officer must opine on the rigidity/flaccidness of the subject’s muscle tone. Presumably, the idea is that certain drugs cause different changes in muscle tone. Oddly, “checking for injection sites” ranks 10^th on this list of 12 protocols, but it is presumably “validated” by the taking of a subject’s pulse for the third time. Also, seemingly odd, is that the IACP protocol does not call for the reading of “Miranda Rights” until late in the process.

At this point, and after conducting a toxicological exam for specific drugs, the DRE is entitled to form their opinion as to impairment, and which drugs may have been the cause of impairment. However, as we will see, this evidence may not be admissible in Court.

In People v Bowden, the Court of Appeals addressed some of the weaknesses of the DRE protocol, and came to the following conclusion: the DRE protocol is valid, but only insofar as it determines the presence of a drug. However, importantly, the Court ruled that the DRE protocol did not, and could not, determine a subject’s degree of impairment. In turn, this was based on some of the documents that were foundational to the development of the DRE program itself.