Understanding the DRE Process in Texas
Although the DRE program begins the same way as a traditional DWI arrest, there are some significant differences. The typical DRE arrest procedure begins by an officer making a DWI arrest, but the person arrested tests under .08 BAC.
After the alcohol test comes under the legal limit, the officer will call a DRE trained officer in to perform a DRE evaluation. There is no penalty for refusing to submit to a DRE evaluation. In fact, it is in your best interest to refuse to submit to the DRE examination.
The first question DRE officers are taught to ask is what your BAC breath test results were.
If you tested over .08 BAC there is likely no reason for the DRE to administer the DRE process to you. Regardless of whether they want to administer these tests to you, you are not required to submit to these tests.
The second step is to interview the arresting officer about his observations of you.
Specifically, what makes him think you are impaired by drugs.
Third, the DRE performs a Preliminary Examination of you.
The officer’s primary task during this preliminary examination is to find out if you need immediate medical attention. If you do, the DRE officer should stop the DRE examination and get you the medical help you need.
Fourth, the DRE examines your eyes.
He will administer the HGN, VGN, and Lack of Convergence tests on you. These are tests that seek to see if you eyes bounce when they reach maximum deviation – which is a fancy way of saying “When the reach the further corners of your eyes as possible.” The Lack of Convergence tests seeks to determine if you can focus your eyes on an object as it moves from a distance to your nose.
Fifth, the officer will administer the same Field Sobriety Tests on you that the arresting officer administered.
The significant difference, however, is that the DRE officer is instructed that he cannot vary from the standardized method of administering these tests in any way. He must administer them perfectly if he wants to rely on the results from these tests in drawing his conclusions. That does not mean, however, that a court will not allow him to testify about the tests if he fails to administer them perfectly.
Sixth, the officer will check your vital signs.
He is looking for signs of a quicker or slower than normal pulse rate, high body temperature and other signs that may indicate whether you are intoxicated.
Seventh, the officer will turn out the lights to perform some “Dark Room Examinations.” These examinations are supposed to determine the size of the pupils of your eyes using a cardboard sheet with estimated pupil size on it. Medical doctors would never rely on such estimations in making medical diagnosis, but DRE’s do so all the time.
Eighth, the DRE will put on gloves and check your muscle tone by squeezing your arms and hands. He is attempting to check for flaccid or rigid muscle tone. Of course, the problem with this examination is that the officer has no idea what your normal muscle tone is. Still, he will perform this intrusive examination of you.
Ninth, the DRE officer will examine your body for injection sites.
He will focus on any place a drug user would inject needles into his body, including, but not limited to, tattoos, webbing of the hands or feet, under nails, and around scabs.
Tenth, the DRE officer will make a note of any statement you made during his time with you.
DRE officers are taught to use authoritative tones and avoid asking you whether you have been using drugs. Instead, the officer is instructed to convey to you that he knows you have been using drugs, and is simply asking for you to confirm his existing knowledge. There is no reason for you to do so. Anything you say will be documented and used against you. Do not let the officer trick or bully you into making admissions against yourself.
Eleventh, the DRE officer is supposed to document his belief in whether you are impaired at the time he is examining you.
Officers are specially instructed to add the phrase “..and is unable to operate a vehicle safely,” to their opinion that you are impaired.
The twelfth and final step is to for the officer to obtain a sample of your urine or blood for later chemical testing.
This sample will be sent to a lab for chemical analysis and will be used against you in court. Make sure to clarify with the officer whether you are required to provide the sample or not. If you are not, then do not provide a sample even if you have not taken any medications or other drugs. These tests are wrong all the time, and if your sample is contaminated or improperly analyzed you will have just provided the state false evidence against you when your case goes to trial.