Katie Stancombe for www.theindianalawyer.com

The Indiana Supreme Court reinstated a woman’s conviction that the Indiana Court of Appeals had vacated because she did not receive an advisement of her rights before police administered a drug recognition exam after a traffic stop.

In January 2016, Monica Dycus was stopped by police after allegedly following her ex-boyfriend by car. During the stop, officers noticed the smell of marijuana on Dycus’ breath and she admitted that she had smoked marijuana “about an hour” earlier.

Dycus consented to a drug recognition exam and cooperated with a variety of measurements and observations that were assessed in a seven-category evaluation matrix, known as a “drug symptom matrix.” After entering all observations and results of Dycus’s DRE into the matrix, officers determined that Dycus was under the influence of marijuana.

Her blood was drawn by consent and sent for testing out-of-state. Results found her blood tested positive for Delta-9 THC, an active metabolite of marijuana with psychoactive effects. Dycus was charged with Class A misdemeanor operating a vehicle while intoxicated.

At trial, Dycus objected to the admission of evidence regarding the DRE and that the admission of the chain of custody forms and shipping documents for her blood samples violated her constitutional right to confrontation. The Indiana Court of Appeals reversed Dycus’s conviction when it held that without an advisement of rights, evidence obtained through a DRE is inadmissible. But the Indiana Supreme Court vacated that decision in Monica Dycus v. State of Indiana, 18S-CR-488.

The high court found that under Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634, such advisements are not required to obtain valid consent to a DRE from a person in custody, and that evidence obtained from the exam was admissible.

“Although our holding in Pirtle is the foundation for requiring that persons in custody be advised of their right to consult with counsel prior to consent, Pirtle, on its own, does not resolve our inquiry,” Justice Steven David wrote. “After all, Pirtle involved only the search of an apartment; searches can range widely in breadth and scope.”

Justices noted that thus far, the Pirtle requirement has been understood to only apply to searches of homes and vehicles. Field sobriety tests, chemical breath tests, blood draws, and cheek swabs have all been found to be searches not requiring an additional advisement of rights prior to consent. Now, neither is are DREs.

“None of the components of a DRE, either individually or cumulatively, have a strong likelihood of uncovering inculpatory evidence of something other than what caused officers to conduct the DRE in the first place. Each component of the exam — the use of the oral thermometer, the examination of the mouth and nasal cavity, the check for the person’s blood pressure — is narrow in scope,” David concluded. “By conducting the DRE, officers were only going to find evidence of Dycus’s intoxication — nothing more. We find that a DRE is specific enough to eliminate the risk of involuntary consent. No additional advisement is needed before a person in custody consents to a DRE.”