A couple of weeks ago, a complaint was filed in the United States District Court (for the Northern District of Georgia) alleging that the three complainants were subject to a violation of their Fourth Amendment rights when they were arrested and held in jail cells for hours all because a police officer trained as a Drug Recognition Expert (DRE) believed they were driving under the influence of marijuana. None of the three ended up testing positive for marijuana. Not only were the complainants’ liberties infringed but as the complaint noted, all three now have a record of arrest, which will stay with them for life and which they will now have to explain to potential employers, landlords, schools and others.

The complaint alleges these abuses by the same officer, but the violations alleged against the officer have certainly occurred in other jurisdictions, including California. I discussed the role of DREs and the increasing use of these so-called experts in recognizing drivers who are under the influence of drugs in a previous post. In California, as in Georgia, DREs go through many hours of training and employ multi-step protocol in determining whether a driver is under the influence of drugs. But as the federal complaint alleges, the DRE protocol has not been rigorously and independently validated.

The DRE protocol is not fool-proof and much of the expert’s determination is subjective. For example, do those watery eyes and balance issues indicate the driver is high on pot or are they just symptoms of the driver’s allergies? In fact, the protocol itself requires the DRE to form an opinion. Based on the DREs opinion, a driver can be subjected to arrest, detention and chemical testing. Sounds sort of reasonable; how else can the police get drugged drivers off the road if there is no reliable chemical roadside test?

Well, the problems are evident.

Number one: There are far too many officers who, for whatever reason, are eager to make the arrest. That seems to be the case with this particular officer in Georgia; if the complaint is accurate, there was little reason to believe the complaining drivers were under the influence of marijuana. The power vested to a DRE officer can be abused.

Number two: Even if after the arrest the driver is ultimately not prosecuted because the subsequent chemical test revealed no drugs in the driver’s system, the arrest stays on the driver’s record. This is no small thing in this day of instant access to everyone’s information. Every potential employer and even landlord will be able to—and probably will—learn of the arrest. The arrest could even present problems trying to enter Canada, which has become very strict about entry into the country. While California permits an individual who was wrongfully arrested to file a Petition for Factual Innocence, which if granted by the court will erase the arrest from the record, that usually requires that the petitioner hire an attorney and there is still, no guarantee that the court will grant the petition.

Number three and the cause of action in the federal complaint: This may be a violation of the search and seizure clause found in the Fourth Amendment to the Unites States Constitution. There must be a reasonable suspicion to detain the driver for any period of time longer than it takes to issue a citation for the violation that prompted the initial stop. And there must be probable cause to arrest the driver. The complaint questions the validity of the probable cause formed by the DRE officer’s opinion.

As driving under the influence of drugs becomes an ever-increasing concern of law enforcement, we can expect more of these types of DRE arrests that turn out to be unfounded and perhaps unlawful. It’s difficult to find the right balance. While I can understand why the police want to get drugged drivers off the road, I also believe the protection of our Fourth Amendment rights is paramount. If too many innocent drivers get caught up in this heightened era of drugged driving enforcement, I expect to see many more challenges to the use of DREs and perhaps it may end up before the Supreme Court.

Orange County DUI defense attorney William Weinberg has been defending those accused of driving under the influence of alcohol or drugs for almost 25 years. He is available to speak with you concerning your DUI or DUID matter at (949) 474-8008. Or contact him by email at


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