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Do they need a drug recognition expert for a DUI of drugs in Colorado?

Posted by Neil Shouse | Jun 24, 2019 | 0 Comments

Drug recognition experts (DREs) are not required to arrest people for the Colorado crime of driving under the influence of drugs (DUID) under 42-4-1301(1)(a). However, it is typical for Colorado police to involve a DRE anytime they suspect someone of driving while high.

DREs

Drug recognition experts are police who are trained and certified to recognize when people are under the influence of drugs. In Colorado, there are currently 198 active DREs. Fifty-seven of them serve with the Colorado State Patrol.

DREs use a standardized 12-step protocol approved by NHTSA (National Highway Transportation Safety Administration) to evaluate DUID suspects. The purpose of this protocol is to try to ascertain which drugs the suspect may have ingested and how much. It is a more particular and detailed procedure than trying to determine whether someone ingested alcohol.

If a Colorado policeman who is not a DRE suspects that a driver may be under the influence of the drugs, the officer will try to get a DRE to appear as quickly as possible to assess the driver. If no DRE is available, the arresting officer may use his/her judgment about placing the suspect under arrest.

DUIDs

A DUID in Colorado occurs when:

  • a person who is operating a motor vehicle has ingested one or more drugs (or a combination of drugs and alcohol); and
  • the drugs and/or alcohol render the driver substantially incapable -- either mentally and/or physically -- to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle

Note that drugs include not just controlled substances but also prescription drugs, over-the-counter drugs, and inhaled glue, aerosol, or other toxic vapors. Cases of driving under the influence of marijuana or opioids are particularly common in Colorado. Other drugs police routinely detect in DUID suspects include:

  • cocaine;
  • ecstasy;
  • GHB;
  • heroin;
  • meth; and
  • PCP

Also note that people suspected of DUID are usually required to submit to a blood test instead of a breath test. This is because breath tests do not detect drugs. The punishment for refusing to take a Colorado DUI blood test include:

  • driver's license revocation;
  • mandatory SR-22 insurance;
  • installation of an ignition interlock device in the person's vehicles;
  • designation as a Colorado “persistent drunk driver" (PDD); and
  • mandatory drug education prior to the license being reinstated

DUID is typically a misdemeanor in Colorado as long as no one gets hurt. But drivers with three past DUI convictions will automatically be charged with a felony for a fourth DUI.

Fighting DUIDs

If a DRE was involved in arresting a DUID suspect, the criminal defense attorney would conduct a thorough investigation in search of instances where the DRE may have made a mistake.

For instance, perhaps the DRE's certification lapsed. Or maybe the DRE administered the 12-step protocol incorrectly. Or if too much time elapsed between when the suspect was driving and when the DRE evaluated him/her, the DRE's assessment may be invalid.

And if no DRE was involved in arresting the suspect, the defendant's criminal defense attorney can always argue that the arresting officer lacked the knowledge and skill to identify a DUID suspect. 

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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