Criminal Defense Blog: Drug Recognition Examination & Your Rights

17 Jan Criminal Defense Blog: Drug Recognition Examination & Your Rights

Pirtle Warnings and the Drug Recognition Examination

A recent Indiana Court of Appeals case may affect you if you have been arrested for operating while intoxicated after a Drug Recognition Exam.

As background, in Pirtle v State of Indiana, 323 N.E.2d 634 (1975), the Indiana Supreme Court previously ruled that once a person is in custody, they have the right to counsel if asked consent to search of their person or property, including a vehicle or home.

In Pirtle, the defendant asked for an attorney prior to his apartment being searched, but he was not given one even though he did not waive any of his rights. This created precedent that prevented officers from obtaining illegal searches without reading “Pirtle Rights” first. Those rights include, “you have the right to require that a search warrant be obtained before any search of your residence, vehicle or other premises.  You have the right to refuse to consent to any such search. You have the right to consult with an attorney prior to giving consent to any such search.  If you cannot afford an attorney, you have the right to have an attorney provided to you at no cost.” Id.

A recent Indiana Court of Appeals case that touches on Pirtle, Dycus v. State, 49A05-1705-CR-978, 2017 WL 6626640 (Ind. App. Dec. 29, 2017), widens the range of when an individual can ask for an attorney.

In Dycus v. State, the defendant was convicted and sentenced to 365 days for operating a vehicle while intoxicated after she was found stopped at a red light and yelling at her ex-boyfriend who was in front of her in another vehicle. When Officers arrived (at the call of the ex-boyfriend’s passenger), they smelled the odor of marijuana coming from Dycus’s breath. Dycus admitted to smoking marijuana about an hour prior to this incident with her mother. A field sobriety test was conducted and came back inconclusive.

Dycus consented to a certified breath test that returned negative for the presence of alcohol. While the officer was conducting the test, he observed “a green streak going down her tongue.” (Tr. p. 130).

Dycus was asked to submit a Drug Recognition Exam to determine if she was impaired by the use of drugs. “Officer Winter took Dycus’ temperature with an oral thermometer, he measured her blood pressure, and examined her arms. He illuminated her nasal cavities with a flashlight to look inside. He ordered Dycus to open her mouth and examined the inside. Officer Winter measured Dycus’ pupil size in three different lighting conditions. Some parts of the DRE took place in a pitch black room—in this case, a closet at IMPD’s northwest office.” Dycus at *1

At the end of the tests, the officer concluded that Dycus was under the influence of marijuana. Dycus consented to a blood draw that returned back positive for THC. Dycus was then charged with operating vehicle with a controlled schedule I or II substance or its metabolite in the person’s body.

The trial court found Dycus guilty as charged, but she appealed arguing that the DRE results should not have been admitted at trial because she was not given a Pirtle advisement before the 30-minute test was performed. Dycus maintained that she was entitled to be advised of her right to speak with an attorney before submitting to the test. The State responded by saying the DRE was not over intrusive because it can only reveal the presence of drugs.

The Court of Appeals referenced Smith v. State, 744 N.E.2d 437, 439 (Ind. 2001) by acknowledging a reasonable expectation of privacy of a person’s body and their body cavities. The question came down to whether or not a DRE is considered a limited search.

The Court of Appeals explained that the Drug Recognition Exam in question took thirty minutes and was more similar to a quasi-medical examination because of its encompassing nature. Id. Judge Riley wrote, “when taken together . . . [this] provides police officers not only with possible incriminating evidence, but also with information about a person’s health,” Dycus at *7. The Court of Appeals held that the defendant should have been read her Pirtle Rights prior to the search. The Court ruled that the search should thus be excluded.

New Rules for the Drug Recognition Examination and Your Rights

The case expands the use of Pirtle, as most OVWI investigations do not require the reading of Miranda or Pirtle Rights. General Field Sobriety Tests or regularly used breath tests (BAC testing) do not require the officer to read these rights. However, in some cases, if a blood draw is requested, the courts have held that the officer must first obtain a warrant. Now, under the ruling of the Dycus case, if an officer wants to conduct a full Drug Recognition Examination (DRE), they must now read the driver his or her Pirtle Rights.

Criminal Defense, OVWI & Search and Seizure Attorney

If you have been searched without advisement or waiving your rights, that may affect the outcome of your case.  At Chambers Law Office, we handle all types of criminal cases throughout central Indiana, including search and seizure issues, motions to suppress evidence and operating while intoxicated cases. As a former Marion County deputy prosecutor, Julie Chambers has experience in the criminal courts on both sides of the aisle. If you have questions about a criminal case or search and seizure issue, Chambers Law Office can help. Call 317-450-2971 today!