A Drug Recognition Expert (DRE) is a police officer who indicates they  can recognize whether someone is on drugs, what kind of drugs they are on, and whether their ability to drive has been impaired. The theory of  the DRE is that they claim to be able to determine whether someone is under the influence of drugs through a visual evaluation. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 19.

DREs frequently administer their tests when someone is detained to determine if they are impaired by alcohol or drugs to the extent they are rendered less safe to drive under Georgia law, but passes a breath test or other field sobriety tests designed to determine alcohol impairment. The DRE's testimony may  provide better evidence for an Atlanta DUI or Georgia prosecution than Georgia Bureau of Investigation toxicology reports.  Blood tests may not measure the quantity of drugs taken and, even if they do, may not show a level high enough to prove impairment. Urine tests do not accurately pinpoint when the drugs were ingested and may not show the quantity. Therefore blood and urine tests alone may not be sufficient to prove the person was affected by drugs when they were  driving in Georgia. The DRE contends he can provide the link between the  GBI toxicology report and the less safe driving by reason of ingestion of drugs under Georgia DUI law. The DRE offers testimony that the defendant failed the physical tests administered by the DRE, showing that the defendant may be impaired by the drugs in his system. Lawyers Weekly USA , "Growing New Practice  Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.

The DRE should advise that his examination of the suspect is broken into 5  parts: 

1. Coordination tests.  The suspect must perform the "walk and turn," "one leg stand," "finger  to nose," and "Romberg balance" test (where he must estimate when 30  seconds have passed while standing with his head tilted back and his  eyes closed). 

 2. Eye tests.  The DRE checks the suspect's pupil size under various lighting  conditions. He checks for "horizontal gaze nystagmus" where the eyes  twitch when looking off to the side and "vertical nystagmus" where the  eyes twitch when looking up. The DRE also checks to see if the eyes  cross normally when looking down at the nose.

 3. Vital signs.  The DRE measures the suspect's pulse, temperature and blood pressure.

 4. Muscle tone.  The DRE feels the suspects arm muscles to see if the are loose and  rubbery or tense.

 5. Visual inspection.  The DRE inspects the suspects mouth and nose for signs of drug  ingestion, the presence of drug debris and discoloration. The DRE   checks the suspect's arms for needle marks. Lawyers Weekly USA ,   "Growing New Practice Area for Drunk Driving Lawyers" dated September   20, 1999, p. 20.

 The DRE then determines whether the results of the exam performed on the suspect match symptoms associated with 7 drug classes. The drug classes used are central nervous system (CNS) depressants, CNS stimulants,  hallucinogens, phencyclidine, narcotic analgesics, inhalants, and  cannabis. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 468. For example, a person on a depressant should have normal pupils, but twitching eyes on the   nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and   slurred speech. Persons on cannabis should have dilated pupils, no eye twitching, a high pulse rate and blood pressure, their eyes may not  cross normally when they look down their nose, and they may have  disorientation. The DRE also interviews the arresting officer, reviews  the alco-sensor and Intox. 5000 results and asks the suspect if he has been using drugs. Finally, the DRE concludes whether the suspect is behaviorally  impaired, if the impairment is drug-related, and the drug class or combination of classes likely to be causing the impairment. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated   September 20, 1999, p. 20.

Drug Recognition Experts are Not Recognized by Georgia Courts  There is Georgia DUI or Atlanta DUI Court decision from the Georgia Supreme Court recognizing the reliability of DRE testimony as proof of driving under the influence.  The written opinions which permit the admission of DRE evidence either say the evidence was not subject to timely objection or do not address this issue. In Atlanta DUI or Georgia DUI cases, a party may challenge the admissibility of expert testimony that is based on theories or technologies that have not “reached a scientific stage of verifiable certainty.” Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982). DRE testimony is a “Novel Scientific Theory and Technique” as contemplated in Harper, supra. After a procedure has been recognized in a substantial number of jurisdictions, a trial court may take notice, without receiving evidence, that the procedure has been established with verifiable certainty. Harper, supra at 525-526(1), 292 S.E.2d 389. A trial court may also decide a procedure or technique has reached a “scientific stage of verifiable certainty,” from evidence presented to it by the parties or an expert or based on exhibits, treatises, or the rationale of cases in other jurisdictions. Id. at 525, 292 S.E.2d 389. A review of the decisions of the Georgia Court of Appeals, our Georgia Supreme Court and the courts of other states reveals only one decision of a major appellate court in Minnesota in which the “DRE” has been discussed as a reliable method of drug detection.” Id. It is the Georgia Prosecutor's burden to establish the reliability of this particular test by expert testimony or to offer authority subsequent to Harper to prove that this urine testing procedure had become scientifically established with verifiable certainty in Georgia or in other jurisdictions. Id. Any DRE testimony would not qualify  as reliable evidence using the Harper, test or the Daubert test for federal court. Harper, supra; See also, Lawyers Weekly USA ,  "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 20.

   A DUI Defendant can challenge the accuracy of the evaluation and the DRE's qualifications to perform the  tests. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  Laboratory studies were done in 1996 and 1998. The 1996 studies were  undertaken to determine the validity of the variables of the Drug  Evaluation and Classification (DEC) evaluation in predicting whether  research volunteers had been administered ethanol, cocaine or marijuana  and to determine the accuracy of DREs in detecting whether subjects had  been dosed with ethanol, cocaine, or marijuana. Using discriminant  function analysis, it was found that 17-28 variables of the DEC  evaluation predicted the presence or absence of each of the three drugs  (ethanol, cocaine and marijuana) with a high degree of sensitivity and  specificity and low rates of false-positive and false-negative errors.  The five best predictive variables were nearly as accurate as the entire  subsets of 17-28 variables. When DREs concluded subjects were impaired  by ethanol or drugs or both, their predictions were consistent with toxicological analysis in 51% of cases. When ethanol-only decisions,  which were guaranteed to be consistent with toxicology, were excluded,  DREs' predictions were consistent in 44% of cases. Journal of Analytical  Toxicology, "Laboratory Validation Study of Drug Evaluation and   Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20,   October 1996, p. 475. This study provides a list of the symptoms that  were found to be the best predictors of impairment by a particular class  of drug. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 470, 472, 474. If these symptoms are not consistent with those found present in the client on the DRE  report, this may call into question the validity of the DRE's  conclusion.  

Aside from challenging the accuracy of the DEC, Defendant can challenge the DRE's qualifications. The DRE  is not a medical doctor and has only had a nine day course and is therefore not qualified to make a subjective evaluation of the suspect's physiological symptoms. An inquiry should be made into what training the DRE has been given in distinguishing the effects of drugs from those of other medical conditions. Only one and a  half pages of the 570 page DRE training manual covers medical conditions  that can be confused with drug impairment. If the DRE's training history is questionable, inquire to see how well he did in the DRE course and  what continued training he has had in DRE techniques. The DRE is supposed to maintain a running log which DREs are supposed to keep to record and measure  success rates. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 21. External conditions can effect the alleged DRE symptoms.    For example, high blood pressure, high pulse rate and muscle rigidity  can be caused by the stress of an arrest or accident. Other symptoms may be caused  by mental conditions such as attention deficit disorder or mania or delirium, or a medical condition such as diabetes, hypertension or an  abnormal movement disorder. There are many natural causes for nystagmus including strobe lights and non-alcohol or drug related diseases. In cases involving accidents, symptoms may be due to a  concussion. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  The Officer's DRE manual can be used to find potential  mistakes made by the DRE while conducting the test. The manual warns  that any deviation from the protocol affects the conclusion. So if the  DRE does not administer the evaluation under the conditions recommended  by the manual, this indicates the  results are not reliable. Lawyers Weekly USA , "Growing New Practice   Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21.  Other possible arguments may emerge by comparing the DRE's report with  the notes of the arresting officer. There may be inconsistencies.  Even if the DRE correctly determines  that the suspect was affected by drugs, that does not necessarily mean the suspect's driving ability was impaired. Lawyers Weekly USA ,  "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 21.   Never take for granted that DRE techniques are admissible.

From the moment we are born we have micro-organisms including several types of yeasts and bacteria in our intestines which are helpful and others that are harmless.  When our immune system is weakened though stress or illness, these microorganisms and yeasts (Candida albicans) can grow out of control and can inhibit and interfere with digestion and create a build  up of toxins.  . 

Yeast produce waste just like humans. The primary waste product of yeast is acetaldehyde. Since Candida multiplies so rapidly, the build-up of acetaldehyde toxins can overwhelm your body. This acetaldehyde can be transformed into ethanol and converted by the liver into alcohol.  In addition the excess alcohol of a Candida outbreak can produce symptoms of being drunk, mentally confused, dizzy and disoriented as if one had overindulged in alcohol consumption. 

C. Orian Truss MD has found that the metabolic and toxic potential of Candida albicans includes the capacity to produce multiple toxins. Many yeast organisms can metabolize sugars to pyruvate and this in turn is anaerobically converted to acetaldehyde and carbon dioxide. Chronic CO2 production may account for the persistent bloating and gas noted clinically by many patients with chronic candidiasis. Some strains of Candida can reduce acetaldehyde to ethanol. This would be rapidly absorbed and contribute to a raised blood alcohol level.  This was printed in The Journal of Orthomolecular Medicine, Volume 13 # 2.

Your Georgia DUI or Atlanta DUI is finally over.  You won or lost.  The Judge entered some disposition on the record.  What does it mean?  Guilty, Not Guilty.  Those are the easy ones that mean you lost or you won.  What is a Nolle Pros, a Dead Docket, Nolo Contendre, or First Offender?   A "Nolle Pros" or nolle prosequi is just latin for "no prosecution."  This is basically a dismissal with leave to refile an accusation or an indictment on the criminal charge at any time within the statute of limitations which is two years for misdemeanors or DUI cases.   A Dead Docket is a legal fiction where a case is basically dismissed and put on a case docket that is dead or is never called for trial.  It is neither a conviction nor an acquittal.  

  Georgia Courts have described it as follows: "Dead-docketing has been characterized as a
case is still pending which can be called for trial at the judge'sprocedural device by which "the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court." [Cit.]"Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused's favor. A pleasure, or upon which the accused can make a demand for trial."   State v. Creel, 216 Ga. App. 394, 395 (454 S.E.2d 804) (1995). See also Freeman v. State, 264 Ga. 27 (440 S.E.2d 181) (1994) (where a murder charge wasplaced on the dead docket in return for a statement and testimonyagainst another defendant); and State v. Marcus, 206 Ga. App. 385 (425S.E.2d 351) (1992) (where a case was removed from the dead docket andreturned to active status)."

Georgia Courts have also held that a Dead Docket over objection by the Defendant or accused is prohibited. The United States Supreme Court has declared entry of the nolle prosequi "with leave" over defendant's objection to be unconstitutional ( Klopfer v. North Carolina, 386 U.S.213 (87 SC 988, 18 LE2d 1)). Georgia Courts have followed this decision and found that a trial court here abused its discretion when it placed the case on the dead docket over defendant's objection.  Beam v. State, 265 Ga. 853, 855 (1995).

"Nolo" or nolo contendre is just latin for no prosecution.  It means that you are neither pleading guilty nor innocent but merely not contesting the charge and accepting the punishment.  It is the same as a guilty plea except it can not be used against you as an admission in a subsequent civil suit.  Prior to 1997, a "nolo" would prevent a license suspension but the legislature rewrote the statute to make a "nolo" a conviction for driver's license suspension purposes.  

First Offender is a resolution allowed by law  wherein a Defendant pleads guilty but the charge is held in abeyance and if probation is sucessfully completed the charge is dismissed at the end of probation.  It is not a conviction.  However, if you violate probation the Court can bring you back and sentence you to the maximum sentence allowed by law as if you had never completed any portion of the probation period.   This is known as the bad side to first offender probation. 

    You are considering the case of the State of Georgia versus Joe Dui.

    The Defendant in this case has been charged in an accusation filed by the Solicitor General of Henry County with driving under the influence of alcohol and failure to maintain a lane.

    This accusation was filed in Court (as amended) on October 10, 2006.  To this accusation the Defendant has entered pleas of not guilty.  The Accusation and the pleas of  not guilty form the issues which you have been selected, sworn and empanelled to try.

Burden of Proof

    I caution you that the fact that an accusation has been brought against this Defendant is not evidence of his guilt.  You should not consider the accusation as evidence or implication of guilt.

    The Defendant is presumed to be innocent until proven guilty.  Every Defendant enters upon the trial of the case with a presumption of innocence in his favor.  This presumption remains with the Dfendant until it is overcome by the state with evidence that is sufficient to convince you beyond a reasonable doubt that the Defendant is guilty of the offense charged.

    No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt. 

75% of America's state prison inmates are high school dropouts (Harlow, 2003).

* 59% of America's federal prison inmates did not complete high school (Harlow, 2003).

* High school dropouts are 3.5 times more likely than high school graduates to be arrested in their lifetime (Alliance for Excellent Education, 2003a).

* A 1% increase in high school graduation rates would save approximately $1.4 billion in incarceration costs, or about $2,100 per each male high school graduate (Alliance for Excellent Education, 2003a).

* It costs $11,570 to educate a single child for one year in 2005 in the Atlanta Public School System. Robert J. Eger, III, Ph.D., Cost Per Student Analysis Update, at the Andrew Young School of Policy Studies, Georgia State University. 

 During November of 2001,
the Georgia Jail Summary reported the number of
individuals in county jails at 29,636. The number consisted
of 17,366 awaiting trial, 4,763 county inmates, 4,235 other
inmates and 3,268 sentenced to state prisons or parole /
probation issues.

Quality Control Measures During an Intoxilyzer 5000 Inspection

Definition: Merriam – Webster defines “Quality Control” as

An aggregate of activities designed to ensure adequate quality, especially in manufactured products.

Requirement for Instrument Inspections:

Requirements are in place for a minimum number of inspections at specific intervals.  Only qualified personnel may conduct this inspection following the specific guidelines/procedures set forth by the State and/or manufacturer.

A.     Specific glassware should be used when measuring solutions or liquids for this inspection.

Why should Class “A” Glassware be used.
             - Volume accuracies and capacities are permanently marked.
          -To deliver – pipettes, exact amounts are delivered.
             - Ensure the instrument is on and is properly warming up.  (at least 30 minutes)
             - All test results should be recorded and made available for public record.

 B.     Simulator Requirements – manufacturers requirements and state requirements for proper usage.  Some states rely on the manufacturer for guidelines.

    1.  Requires use of properly operating simulators.
   2.  Requires proper warm up times for simulator use.           (30 minutes)
   3.  Requires the simulator to be leak resistant.
   4.   Requires adherence to temperature range.(34 degrees c +/- 0.2 c)

Special note – most manufacturers require an annual requirement for calibration.  Check calibration dates for simulators.  This calibration is to set within certain limits +/- a small window of temperature °C using a NIST traceable digital thermometer.

C.  Reference Solutions

                        1. The use of approved, sealed, non-expired solutions is a must.
                  2. Proper and accurate amounts of solutions are to be used.
                  3. Proper care for tools and equipment during and after conducting                                                            inspections.

D. Use only calibrated and certified equipment.

                            1.  Simulators, thermometers, and pressure gauges.  These must have a NIST                                   traceable source is most circumstances.

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