If you’re arrested for a DWI in North Carolina, the State needs to prove that you were impaired by an impairing substance. Driving while impaired by a medical condition is not, in and of itself, illegal. But driving while impaired by an impairing substance is a violation of NCGS 20-138.1 or related implied consent offenses.
Proving a DWI is far simpler in North Carolina if the impairing substance is alcohol. The state may conduct a breath test or a blood test and produce a BAC or BrAC of .08 or above. This is offered to prove a defendant’s guilt. And while that is not always accurate – the Intox EC/IR II machines combine two technologies – fuel cells and Infrared technologies – which have been known to be flawed for decades – North Carolina’s General Assembly has, through a combination of laws, made it difficult for defense lawyers to attack the validity of the blow.
Proving a DWI that is a result of suspected drug use (either legally prescribed or illegally consumed) is usually more complicated for the State to prove, unless the drug is a Schedule I. If the drug is a schedule I, the State merely has to prove the existence of any amount of metabolites within the blood if the blood was taken at a relevant time after the driving such at the Schedule I substance was consumed before or during the driving.
Providing DWI that is the result of non-Schedule I suspected drug use is the most difficult for the State to prove. Medical professionals fully understand that evidence of drugs in blood is merely shows that, at some point in the past, the person consumed the drug. Medical professionals cannot pinpoint when the drug was consumed.
That’s where the Drug Recognition Expert (someone who is trained in the Drug Evaluation and Classification Program) comes in.
A DRE is a specially trained law enforcement officer – only the best and the brightest are sent to DRE courses – who, it is claimed, can identify:
- Whether someone is impaired
- Whether that impairment is from a physical defect or from drug consumption
- And the classification or identification of the particular drug.
Most states require that DREs be admitted as experts by showing in court that the officer is trained as a DRE and that DRE is a generally accepted field within in relevant the scientific community.
As we’ll explore in greater depth in future posts, Drug Recognition or DEC are not accepted within the relevant scientific community. Opthamalogists, toxicologists, and medical doctors are either unaware, or dismissive of DRE. No leading researcher or expert actually regards DRE as anything other than junk.
DRE is widely regarded within the scientific community as a joke.
Unfortunately, in North Carolina, Rule 702 codifies DRE as an accepted forensic science. That’s because the North Carolina General Assembly has chosen to embrace junk science.