Police DRE programs: Wasting money in the name of injustice | Guest column

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Publication: Richmond Times Dispatch

Nationwide efforts to decriminalize marijuana, for all their starts and stops, have represented a significant step toward ending America’s failed “War on Drugs,” which has defined American policing for decades.

But it’s clear that some law enforcement officials are nostalgic for the old days. Legalization has prompted police across the country to spend a fortune training departments and their officers to become so-called drug recognition experts (DREs), using a purported rise in marijuana-impaired driving to justify it. This spurious premise is joined by an equally spurious claim that DREs’ well-honed observations of speech and behavior are accurate enough to form the sole basis for arresting and prosecuting people suspected of driving while impaired due to marijuana.

DRE training programs essentially aim to turn police officers into something like a human breathalyzer test, affording them special legal status as “expert witnesses,” whose judgment is legally sufficient to conclude that someone was under the influence of drugs. According to the IACP, the U.S. already has more than 8,500 active DRE-trained police officers, a number that increases every year.

None of these claims regarding DREs is supported by science. According to one former federal judge and Harvard lecturer, the support for DREs is “junk science to the nth degree.” Challenges to DRE testimony have emerged throughout the country, including in Massachusetts and New Jersey, with experts pointing out that even experienced medical professionals cannot determine someone’s level of drug intoxication without a combination of blood testing and medical history (this stands in contrast to alcohol, where the amount consumed directly correlates with intoxication, making the determination of impairment simpler and more reliable). In 2022, doctors in Massachusetts found that a shocking 34% of those whom DRE officers had identified as impaired were not impaired at all, including many who had taken placebos and had no drugs in their system.

It has become painfully clear that DRE officers’ bias and lack of competence or professionalism disqualify them from being treated as experts in a court. For example, the Washington State Traffic Safety Commission found the DRE program to suffer from a “lack of scientific and legal rigor,” with police often failing to follow their own training, or “happy to categorize a given suspect as a refusal.” Further, a 2013 research report found that the original studies used to create the DRE program were full of “biases that distorted reported accuracies,” including “spectrum bias, selection bias, misclassification bias, verification bias, differential verification bias, incorporation bias, and review bias,” which “do not validate” DRE programs.

The potential for DREs to become a tool of injustice should be obvious from the history of the War on Drugs itself: just as with racial profiling, pretextual investigations, and selective enforcement, DRE assessments rely entirely on the subjective judgment and integrity of the police officer. The potential for abuse and biased enforcement is immense.

This was tragically illustrated recently when officers in Minnesota pulled over a clearly disoriented Black 50-year-old U.S. postal worker named Kingsley Fifi Bimpong. A DRE officer was asked to evaluate Bimpong, but said Bimpong wasn’t worth a full evaluation since he was clearly high. Bimpong was abandoned on the floor of his cell and ignored until he was foaming at the mouth hours later. When officers took him to the hospital, doctors said he was sober — and suffering a stroke. He died days later.

Police in this country have long used drug laws to surveil, harass, criminalize and even kill Black people in America. Black drivers are still being stopped by police more often than drivers of any other race and are more likely to be searched when stopped, with drugs remaining a top pretext. Even as more states pass legalization measures, marijuana-related arrests are actually increasing, and Black people continue to be arrested four times more often than white people, even in states with legal possession.

Nothing prevents police from using the tools they already have to stop dangerous driving when they see it. If someone is driving erratically, police are still allowed to pull them over and administer basic field sobriety tests, which, although themselves flawed, are at least a more reliable indicator of impaired driving. Such tests are also “substance-neutral” — if you’re intoxicated, you’ll fail, regardless of whether you consumed alcohol or Ambien. We’ve never relied on an expensive program to contrive experts for presuming intoxication on Ambien or the many other legal, illegal or prescription drugs that can impair driving. Nor should we.

Lastly, the DRE initiative itself relies on a false premise, namely that marijuana legalization has led to an increase in impaired driving, and an increase in vehicle collisions caused by impaired driving. In a massive 20-month study examining 3,600 crashes, the U.S. Department of Transportation found that marijuana could not be determined to increase the risk of a crash. Some who crashed had marijuana in their systems — a figure often cited by police — but when the data is adjusted for concurrent alcohol use, age, gender and other demographics, those who tested positive for marijuana in their system did not crash any more often than others. Similarly, a 2021 Colorado state government report showed no measurable increase in crashes following legalization there. In other words, DRE programs propose to throw millions at a problem that isn’t even real.

Many challenges remain along Virginia’s path to legalization. DREs will not help resolve any of them. And the obstacles DREs will create to a fair system of legalization come at a huge cost, amid a significant budget crisis. Virginia can — and should — ward off injustice and lessen the financial burdens of pointless, unreliable training by cutting its DRE program.

Chelsea Higgs Wise is the co-founder and executive director of Marijuana Justice. Brad Haywood is founder and current board member of Justice Forward Virginia.