COA: Defendants Have Right To Counsel Before Drug Recognition Exam

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Marilyn Odendahl for www.theindianalwyer.com

A woman had her conviction overturned after the Indiana Court of Appeals ruled she should have been allowed to consult an attorney before undergoing a drug recognition exam.

Monica Dycus was convicted and sentenced to 365 days for operating a vehicle while intoxicated endangering a person, a Class A misdemeanor. Indianapolis Metropolitan Police Department officers found Dycus stopped at red light, partly out of her car and yelling at her former boyfriend in another vehicle.

The police noticed the odor of marijuana coming from her breath and she admitted to having smoked marijuana with her mother earlier that day. A field sobriety test was inconclusive so the officers took Dycus to the police station where they performed the DRE. This included behavioral tests as well as taking her temperature, looking inside her nasal cavities with a flashlight, measuring her blood pressure and determining her pupil size in three different lighting conditions.

The police entered all their observations from the test into a drug symptom matrix. The results led the officers to conclude Dycus was under the influence of marijuana. Dycus then consented to a blood draw that found THC.

On appeal, Dycus argued 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. She maintained she was entitled to be advised of her right to speak with counsel prior to submitting to the testing.

The state countered that because the DRE is not very intrusive and can only reveal the presence of drugs, no Pirtle warning was necessary.

The warning derives its name from Pirtle v. State, 323 N.E. 2d 634 (Ind. 1975). This decision held that the Indiana Constitution requires an individual in custody must be informed of the right to counsel before consenting to a search.

A unanimous Court of Appeals in Monica Dycus v. State of Indiana, 49A05-1705-CR-978, agreed with Dycus, reversing her conviction and remanding for a new trial.

The appellate panel noted precedent has established the Pirtle warning is not required for field sobriety tests or chemical breath tests. However, in the Dycus case, the judges concluded the DRE was not a limited search only requiring a slight intrusion into an individual’s privacy.

Describing the DRE as a test that is “all-encompassing and amounts to a quasi-medical examination,” the Court of Appeals said the police get not only possible incriminating evidence but also information about a person’s general health. Moreover, the test required a police officer’s subjective assessment, which might tilt the results.

“Because the DRE is akin to an unlimited search that the Pirtle doctrine is designed to protect against, we hold that a person in custody must be advised of his right to consult with an attorney prior to consenting to a DRE,” Judge Patricia Riley wrote for the court. “As Dycus was not given the Pirtleadvisement, her consent was invalid as a matter of law and the evidence obtained thereby was inadmissible.”

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