In the last ten years, police in Washington State have paid a lot more attention to the problem of drugged drivers. A rookie cop can detect a driver who has drank too much alcohol, but it takes a little training and experience to determine if a driver has been using controlled substances such as cocaine, methamphetamine, marijuana or prescription pills. After completing certain training, an officer can become a Drug Recognition Expert or “DRE”. We have many such DRE’s here in Washington, especially in Spokane. The problem is that people are catching on that the so-called drug recognition “experts” really are basing their opinions on many things we do not really recognize as science. Take for example, the green tongue phenomenon. The National Highway Traffic Safety Administration warns of the following characteristics of a marijuana DUI: “… characteristic indicators may include odor of marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on field sobriety tests.” Criminal defense lawyers are not the only ones questioning the validity of this “green tongue” thing. The Washington Court of Appeals also questioned whether a green tongue establishes probable cause for anything. The court agreed with the defense lawyer that no probable cause existed, explaining:
Trooper Lane contends that a green tongue is indicative of recent marijuana use. Even assuming he is correct, the absence of any other indicators of recent marijuana usage, combined with the many innocuous ways to get a green tongue, indicate a lack of reasonable suspicion. Although we assume the officer’s assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion’s fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two.
To you non-lawyers out there, that is the Court of Appeals basically politely telling the Washington State Patrol DRE’s that they are full of baloney. These “experts” are often very well-trained and seemingly professional, and can be very convincing to jurors. I defended a drug DUI one time where a DRE from Okanogan County claimed he had probable cause to believe that the driver was under the influence of marijuana. The DRE wrote in his report:
“He had raised taste buds on the back of his tongue with a green coating on his tongue. His lips were burnt and crusty on top and bottom lips. … His thumb and index fingers of both hands were discolored. The discoloration on his fingers and lips was consistent with holding hot smoking pipes.”
This seemed a little fishy to me, and I eagerly awaited the toxicological report on the blood test. The results indicated that there was absolutely no marijuana (even in trace amounts) in this driver’s blood. Instead there was methadone found in the drivers blood, just as it was found in his car.
Is there any system of accountability for the DRE’s out there? Is anyone keeping track of all the times the DRE’s got it wrong? The Supreme Court in Utah is also catching on. In a court opinion State v. Hechtle, they explained:
We are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dispositive proof of marijuana use. Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute.
So, I guess in some sense, the system is working – courts are catching on. But on the other hand, what other aspects of DRE “science” are slipping past us all?