Cops to undergo
drug appeals process

The officers are specially
trained to examine drivers who are
suspected of being high on narcotics

By Crystal Kua
Star-Bulletin

Police officers who are specially trained to examine drivers suspected of being high on drugs will be put to the test themselves this year in a Honolulu courtroom.

Police, prosecutors and defense lawyers believe that Hawaii's Drug Recognition Expert Program and related issues should go through the rigors of the appeals process to set legal parameters for the law on driving under the influence of drugs.

"It's something that needs to be tested in court," said Chief Deputy Public Defender Dean Yamashiro.

"In the eyes of the court, it would make us a little more credible," said Maui police Sgt. Jayson Kozaki, the program's statewide coordinator. "The precedent would help the program."

Deputy Prosecutor David Sandler, hired under a National Traffic Safety Administration and state Transportation grant, is handling DUI-drug prosecutions in Honolulu.

Sandler said seven people have pleaded no contest to the charge, while about 20 to 25 more cases are awaiting trial in District Court. The majority of the defendants are represented by the Public Defender's office.

The two offices will take one of those cases to a hearing for a judge's ruling, Sandler said. The case then would be expected to be appealed to the state Supreme Court.

The hearing is expected to be scheduled in February or March.

"There are three major issues that will be litigated in the test case," Sandler said.

Those issues are whether:

Drug recognition experts should be allowed to testify in Hawaii courts.

Police should advise suspects of their rights before conducting the examination.

The examination constitutes an unreasonable search and seizure.

In 1996, a District Court judge on Maui allowed the testimony of a drug recognition expert, but the effect of the judge's ruling was not far-reaching because it was not appealed, Sandler said.

Kozaki said the ability to testify is on a case-by-case basis. "It's really up to the judge."

The testimony on Maui in the 1996 and subsequent cases also has been limited to what officers observe and what the observations mean to them, but the officers have not been qualified as "experts" in court. "So we have not rendered any opinions," Kozaki said.

Kozaki remembers when police in his county used to stop motorists who turned out not to be drunk, but still appeared to be high on substances that officers couldn't pinpoint.

"We didn't know what we were looking for," Kozaki said.

Now, Kozaki and other police officers statewide have been trained as drug recognition experts to test drivers for impairment from several categories of drugs -- including depressants, stimulants, hallucinogens and marijuana -- allowing the officers to make arrests as a result.

"The training allowed us to recognize drug impairment vs. another medical condition or alcohol impairment," Kozaki said.

The law pertaining to driving under the influence of drugs has been on the books for years but enforcing it has been difficult, police and prosecutors said.

Kozaki said that prior to the drug recognition training, most DUI-drug arrests started as possession cases when drugs were found in the car.

But when drugs weren't found and the driver suspected of being impaired passed an alcohol breath test, police did not have much choice. "Prior to the training, we would let them go," Kozaki said.

That's the kind of situation that faced the Los Angeles Police Department, which started the program in the 1970s. Drug recognition expert programs now are in 32 states.

In Hawaii, two events turned the tide in recent years in the enforcement of the DUI-drug law.

First, police were trained to recognize drug impairment.

Maui was the first county in the state to have officers undergo training. Now, all the counties have the program.

Sandler said Honolulu has 22 officers certified as drug recognition experts with 22 more currently undergoing training.

The second event was a law that went into effect last year which requires drivers believed to be under the influence of drugs to submit a blood or urine sample for drug testing. Failure to provide a sample will result in a one-year license suspension.

The attention this year also is turning to the state Legislature, which will take up bills aimed at closing loopholes in the law, Sandler said.

"It's all going to come to a head this year," Sandler said. "This year is the fine-tuning year."

12 steps taken to check for any drug impairment By Crystal Kua Star-Bulletin You've run a red light and a police officer stops you and suspects that you're drunk or high. After preliminary screening shows that you're impaired, but alcohol is probably not the culprit, the officer takes you to the police station and calls for an officer who is trained to recognize drug impairment. How do these specially trained officers determine that your impairment is due to drugs? Twelve steps are involved in the process to reach an opinion that an individual is under the influence of a specific category or categories of drugs. The first step involves taking a blood or breath test to determine blood alcohol content. The second step is to interview the arresting officer to find out the circumstances of the arrest. The information sought includes whether the suspect was involved in an accident, made any statements or possessed drugs. The third step is the preliminary examination, also called the "fork in the road," which determines if there is sufficient reason to suspect drug influence. The expert will make observations of the arrested person's condition and find out if there are any health problems that may mimic drug influence. Depending on what happens, the officer could proceed in three different ways: return the suspect to the arresting officer, seek a medical assessment or continue with drug recognition examination. The fourth step is an eye examination, which involves three separate eye movement tests. The fifth step is divided attention testing, which includes balancing, walking and turning, standing on one leg and pointing to the nose with a finger. The sixth step is an examination of vital signs. The officer will check blood pressure, body temperature and pulse. The seventh step is a darkroom examination, which involves measuring the size of pupils in four different light levels. The eighth step is to determine the suspect's muscle tone. The ninth step is to check for signs that the individual has used intravenous drugs. The 10th step involves interrogating the suspect. The 11th step is the formation of an opinion by the drug recognition officer. The final step is the collection of blood or urine for drug testing.