Cedar Rapids OWI Lawyer: What is the DRE breath test phase in a Cedar Rapids, Iowa OWI (DUI) Investigation?

by David A. Cmelik Law PLC

The typical SFSTs employed by law enforcement officers for decades to investigate and detect alcohol intoxication were intended to culminate in a breath test.

An officer trained and certified to conduct standardized field sobriety tests, or, SFSTs, could seek the voluntary participation of a motorist and test subject with the horizontal gaze nystagmus (HGN), the Walk and Turn (WAT), and the One Leg Stand (OLS), long considered to be old standby tests to elevate observations regarding the odor of alcohol, bloodshot eyes, and slurred speech to the reasonable grounds necessary to request a preliminary breath test (PBT) pursuant to Iowa Code Sec. 321J.5. While the PBT was inadmissible as to even the presence of alcohol, let along the amount, the PBT can still be used to contribute to further reasonable grounds to invoke implied consent and temporarily detain a motorist and test subject for the admissible and evidentiary Datamaster DMT test. A test failure or refusal can be used as evidence in an Iowa OWI prosecution.

Enter DRE, or, Drug Recognition Expertise, which purports to add significant paramedical and psychomotor testing to the SFSTs typically used to discern alcohol intoxication in test subjects.

The first phase of this 12 phase protocol is typically the *last* phase of an alcohol intoxication OWI case: the Datamaster DMT breath test.

In DRE's first phase, officers have already concluded a test subject is impaired and hope to build the necessary evidence to prove their self-fulling prophesy:

"During the first phase,an officer administers a breath test to the suspect for the purpose of determining the suspect’s breath alcohol level (BrAC). Based on the suspect’s BrAC,we can determine whether alcohol may be a contributing cause or the sole cause of the suspect’s observable impairment."

This quote is not only from a prosecutor's manual-- it is from the supposed script the officer is supposed to present to the jury in DRE cases.

The questions build up to the canned answer the prosecutors want DRE officers to give:

"The test indicated that defendant’s breath alcohol test results were inconsistent with the defendant’s performance on the Standardized Field Sobriety Tests."

Prosecutor's Research Institute: Drug Evaluation and Classification Program (available at http://www.ndaa.org/pdf/drug_evaluation_classification_dec.pdf)

In other words, they've decided the test subject is impaired but they do not yet know what substance has impaired the motorist. This is incongruous with their assertions that drugs and alcohol present differently in test subjects. Afterall, they're using different tests to discern different types of impairment. If Officer Friendly began an alcohol intoxication investigation, surely they were mistaken.

The idea, of course, is that if Officer Friendly first doesn't succeed, he or she will try, try again. If the officer cannot present evidence of a Datamaster DMT presumptive alcohol intoxication result, the officer may summon drug recognition expertise and gather more evidence against the defendant instead of releasing him or her. Under no circumstances will they "unarrest" the defendant who was arrested even before the Datamaster DMT administration-- not required by Iowa law.

If you or a loved one has been arrested for Operating While Intoxicated, or, impaired, in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC at 319-389-1889 for a free initial consultation and begin charting your course back to life before legal crisis. However, remember that a blog is not legal advice and that sending unsolicited information to an attorney over the Internet does not establish an attorney-client relationship.

Opposite world.  The so-called drug recognition expert, or, DRE, begins with a breath test, but why? The culmination of standardized field sobriety testing in Iowa is usually the requested preliminary breath test and then the more reliable, evidenatiary, and admissible Datamaster DMT breath test-- typically reserved for those suspected of alcohol intoxication since the DMT  *only* measures alcohol. In cases where officers suspect a drug other than alcohol, they are free to request a bodily specimen and testing of both urine and blood. Does the DRE protocol hide mistaken assumptions about intoxication by legitimating .000 BrAC tests. "I meant to do that," will be the refrain from law enforcement officers who mistakenly request a breath sample and get a subject who blows zeroes. ​If you or a loved one has been arrested for OWI in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, ​contact David A. Cmelik Law PLC at 319-389-1889.