Detecting Drugged Driving (“Science” Convicts Innocent Drivers)

More drivers have drugs in their bodies than alcohol. That’s according to the U.S. National Traffic Safety Administration. And it’s supported by state and federally-funded research, among others. The drugs may be legal or illegal, prescription or street drugs. But they all pose a threat to traffic safety. Therefore, it’s important to improve our detecting drugged driving. Most such drivers escape apprehension. That should stop.

On the other hand, large numbers of drivers with no drugs in their systems are being falsely arrested every day of the year. That, too, should stop.detecting drugged drivingUnfortunately, there are many, many serious problems in accurately detecting drugged driving. Presumably, the intent is to reduce drug induced impaired driving.

I. What’s Drug Impaired Driving?


I.  What’s Drug Impaired           Driving?

II. Drug Recognition                   Examiners

III.Tests for Detecting                  Drugged Driving

IV. Testsv are Invalid

V.  Avoid Arrest: Prepare Now

VI. Resources for Detecting          Drugged Driving

Thus, enforcement should only target drivers who are impaired. Not, for example, drivers who have barely detectable remains of a sleeping pill in their blood a day later. And when those traces have absolutely no impact on driving.

Some drugs enhance driving ability. Others reduce it. Some appear to have no effect. And drugs that improve driving may counteract some that decrease it. Unfortunately, drugged driving laws completely disregard such important facts in detecting drugged driving.

The same level of a drug doesn’t affect everyone the same way. Some drivers may be impaired whereas others are not. So determining an unacceptable level for a specific drug is somewhat arbitrary. In fact, it’s a social and political decision. Scientific evidence takes a back seat.detecting drugged drivingConsequently, states tend to make illegal any detectable trace of any of a list of both prescription and illicit drugs.

Unfortunately, drug test results tend to take a month or more to be sent to law enforcement. Therefore, officers are empowered to decide whether or not to arrest a driver suspected of drug impairment.

This causes serious problems for innocent drivers. They are arrested without good evidence that they are impaired by drugs. This may give them a permanent record of arrest, even when completely innocent. This arrest record can prohibit them from entering certain careers, from being hired, and from being trusted. It can be a millstone around their necks for life.

II. Drug Recognition Examiners

A few law enforcement departments have a Drug Recognition Examiner or DRE. They’re often called Drug Recognition Experts. These are law enforcement officers. They receive training on recognizing drivers who have drugs in their systems. They examine drivers after they’ve been arrested.

However, even those who teach others how to recognize drug use make many mistakes. And those mistakes send innocent people to jail and stigmatize them for life. So how accurate are the very best? On average, they falsely identify over one innocent driver for every eight arrested on suspicion of drugged driving. The best of the best certainly are not “experts.”

detecting drugged drivingWho would want a doctor who botched over one of every eight heart surgeries? Or an airline pilot who botched over one of every eight landings? Indeed, they would quickly lose their jobs. As they should.

DREs are given a very flawed process to identify drivers who have used drugs. It has 12 steps but most arresting officers use only three or so. So most officers use only part of a faulty process.

Selective Perception

Here are two of the steps used to identify drugged drivers by the DREs. The examiner “observes the subject’s attitude, coordination, speech, breath and face.” So the officer, who assumes the driver to be guilty, makes observations of the driver’s behaviors. Not surprisingly, the officer tends to perceive the expected behaviors.

Law enforcement officers are human. And psychologists call this very human bias selective perception. We all do it. That’s why detecting drugged driving should be completely objective.

III. Tests for Detecting Drugged Driving

The U.S. Institute on Drug Abuse reports that there is no good roadside test of drug levels in existence.

Regular patrol officers typically administer from one or two of these four tests. They are the Modified Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger-to-Nose test. It is their judgments that leads to arrests.

Modified Romberg Balance Test

The Modified Romberg Balance test involves standing with eyes closed and head tilted back. Naturally, the sooner people lose balance, the poorer their balance. However, the test has never been validated for any purpose. But performance is associated with age. The older the person, the poorer the balance.

In addition, the test has never been standardized. Therefore, officers can administer it any way they choose. They may give any directions they want. There are no guidelines for passing or failing. Officers themselves decide decide whether or not the person they suspect is drugged. This lack of standardization makes the results even less useful in detecting drugged driving.

Finger-to-Nose Test

The Finger-to-Nose test examines balance and coordination. The officer tells drivers to stand with feet touching together with arms at sides, eyes closed, head tilted back. Then the officer tells them is to touch  their nose with the tip of their right and left index fingers.

This duplicates the goal of the Modified Romberg Balance test. It has validity for diagnosing a number of medical conditions. But not for drug detection.

Walk and Turn Test

detecting drugged drivingThe Walk and Turn test is hard for completely sober people to pass. It’s especially hard for people who are older, overweight, nervous, or have any of a number of other problems.

The test involves starting by putting the left foot on a line (often an imaginary line). This tends to cause confusion by those who easily confuse left from right. Doing so costs points.

Then the suspect puts the right foot in front of it with the right heel touching the left toe. Suspects must keep their hands at their sides at all times. Scratching an ear loses points.

The officer tells the suspect, upon command, to take nine heel to toe steps on the line. Then to turn around keeping one foot on the line, and return nine heel to toe steps.

On the ninth step, the suspect must keep the front foot on the line and turn by taking several small steps with the other foot.

While walking, suspects must watch their feet at all times. They must constantly keep their arms at their sides. Officers require them count their steps aloud. And they must not stop at any time until they finish the test.

The One Leg Stand Test

The One Leg Stand test requires suspects to stand with their heels together. Their arms must be at their sides. The officer tells them to lift either leg about six inches off the ground. Suspects must point that leg out and keep both legs straight. They must look at the elevated foot at all times. At the same time they must count aloud. It must be one thousand and one, one thousand and two, one thousand and three, etc.

This test is an excellent indicator of age and of a large number of medical problems. However, it’s a poor test of being impaired from drugs.

IV. Tests are Invalid

Some states require evidence of guilt from lab tests BEFORE arresting drivers. Should all states do this to protect the innocent?

The latter two tests are part of the common sobriety field tests. That’s a problem. About one-third of completely sober volunteers fail sobriety field tests under ideal conditions.

The volunteers are tested in a well-lighted building and don’t face possible arrest for DUI. The floor is smooth, there is no wind, no flashing lights, no cars passing by.

But people facing field sobriety tests in the real world have been pulled over by police. They fear both the test and arrest. The conditions are anything but ideal. That’s why defense lawyers strongly urge that drivers never take a field sobriety test. Fortunately, no state requires submitting to them.

V. Avoid Arrest: Prepare Now

detecting drugged drivingUntil an accurate roadside drug test is developed for detecting drugged driving, people will be at risk of false arrest.

Existing tests are (1) highly subjective, (2) good indicators of age, and (3) good indicators of certain diseases.

Therefore, minorities, older drivers, and those with certain diseases will remain at especially high risk of false arrest.  Also, the subjectivity of the tests puts another group at high risk. That’s drivers who are impolite, uncooperative, or otherwise express a negative attitude.

Lower Your Risk

You can lower your risk of being pulled over and falsely arrested for drugged driving. Here are some tips.

  • Keep your car in excellent mechanical condition. Make sure all lights work properly,  that no part of your license plate is obstructed, etc. You want nothing to attract the attention of police.
  • Don’t violate rules of the road. Completely stop at stop signs, use your directional signals, don’t speed, make illegal turns, etc. You wan’t to be as inconspicuous as possible. Don’t do anything to call attention to yourself.
  • Avoid driving in areas where drug dealing might be common.
  • If possible, don’t drive between midnight and 4:00 in the morning.
  • Avoid driving in areas of “adult entertainment” including prostitution.

Obviously, don’t do illegal drugs. And always follow the directions for both over-the-counter and and prescription drugs.

Prepare Now

Drivers at high risk may wish to prepare for an encounter now.

(1) Find out if state law requires drivers to take roadside drugged driving tests. Email your question to law enforcement authorities without your phone number. (You want a written response.) If the law doesn’t require taking the test, keep a copy of the reply in your car at all times. Also write the name and phone number of a DUI defense lawyer on the reply for easy reference. If you have the lawyer’s business card, staple it to the response. That shows the officer that you didn’t just fall off a turnip truck.

detecting drugged driving(2) If pulled over, use your phone to begin audio recording the encounter without the officer’s knowledge.

(3) Show respect to the officer at all times.

(4) Politely decline to answer questions. It’s easiest to print a card such as the following. Then politely answer no questions. Say nothing.

Officer, I’d like to answer your questions, but my attorneys

told me not say anything unless one of them is present.

(5) Remember that the officer who pulls you over is conducting a criminal investigation. The law permits the officer to lie to you in order to obtain information needed to arrest you. Politely decline to help put yourself behind bars.

(6) You don’t have to prove that you’re innocent. The law assumes you’re innocent until proven otherwise.

(7) Remember that any officer who pulls you over assumes that you’re guilty and is trying to prove it.

(8) And remember. An officer who had enough information to arrest you wouldn’t need to ask questions.

detecting drugged drivingCourage to Intervene Promise

Please sign the Courage to Intervene Promise at We Save Livesright now. 

Candace Lightner (Candy Lightner), founder of Mothers Against Drunk Driving (MADD), formed We Save Lives. It works to reduce drugged driving, distracted driving, and drunk driving.

It doesn’t matter is the driver who kills you is drugged, distracted, or drunk. You’re just as dead. No one ever says “Thank goodness a cell phone distracted the driver who killed my daughter. I’m glad he wasn’t driving drugged.”

VI. Resources on Detecting Drugged Driving

DuPont, R., et al. The need for drugged driving per se laws. Traff Inj Prev, 2012, 13(1), 31-42.

Food and Drug Administration. FDA Regulation of Drugs of Abuse Tests.

Governors Highway Safety Assn. Drug Impaired Driving.

Guilty [of Drugged Driving] Until Proven Innocent” (video)

Nat Coun Behav Health. What Do We Really Know About Drugged Driving?

Office of Nat Drug Control Policy. Reducing Drugged Driving and Protecting Public Health and Safety. Washington: The Office, 2012.

 Stop Drugged Driving (DUID)

Sub Abuse Ment Health Serv Admin. State Approaches to Addressing Drugged Driving.

Talpins, K., et al. The Miami-Dade Protocol: Making Drugged Driving Enforcement a Reality.  J. Alco Drug Depend, 2015, 3, 2012. (online)

Teigen, A. Drugged Driving. Denver: Nat Conf State Legis, 2012.

The Drug Whisperer” (video)


Note: This website makes no legal or other suggestions or recommendations. For legal opinion or advice contact a qualified attorney.