IN THE CIRCUIT/DISTRICT COURT FOR THE STATE OF OREGON

FOR DOUGLAS COUNTY

THE STATE OF OREGON, ) Case Nos. 97CR0207MI

) 96CR2137MI

Plaintiff, ) 96CR2748MI ) 96CR2696MI

vs. ) 96CR2736FE

)

SHELLY BUFORD, BRAD ALLEN )

HAYES, DEBRA SAMPSON, IRMA )

RAE SMITH, THOMAS LEONARD )

WARNER, )

)

Defendants. )

____________________________________)

DATES OF PROCEEDING: May 20, 1997 - May 30, 1997

APPEARANCES: Mary Anderson, Plaintiff

Rick Wesenberg, Plaintiff

Paul Van Dyk, Defendants Buford, Smith,

Gary Hill, Defendant Hayes

Steve Johnson, Defendant Sampson

Stan Legore, Defendant Warner

NATURE OF PROCEEDING: State's Consolidated Motions for Omnibus

Hearing on Admissibility of Evidence

Defendants' Buford, Smith & Warner Motions

To Exclude DRE Evidence

FINDINGS/CONCLUSIONS:

The question for the court is whether drug recognition evidence is admissible and whether Trooper Darin Lux and Officer Tim Lenihan are qualified as expert witnesses under the drug recognition expert program. Officer Lenihan participated in completing a drug recognition evaluation following the arrest of Irma Smith. Tropper Lux participated in completing drug recognition evaluations for the remaining four defendants, Buford, Hayes, Sampson and Warner.

The Oregon standard for the admissibility of scientific evidence is reflected in State v. Brown, 297 Or. 404, 687 P.2d 751 (1984) and State v. O'Key, 321 Or 285, 899 P.2d 663 (1995) and Oregon Evidence Code sections 401, 403 and 702.

State v. Brown, supra, requires the court to make findings which address seven factors:

1. The technique's general acceptance in the field.

2. The expert's qualification and stature.

3. The use which has been made of the technique.

4. The potential rate of error.

5. The existence of specialized literature.

6. The novelty of the invention.

7. The extent to which the technique relies on the subjective interpretation of

the expert.

The court in State v. O'Key, supra, reaffirmed the Brown standard and adopted the four factors under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. _____, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993) in considering the admissibility of scientific evidence.

1. Whether the theory or technique in question can and has been tested.

3. The known or potential rate of error and the existence of operational

standards controlling the techniques operation.

4. The degree of acceptance in the relevant scientific community.

The proponent of the evidence, the State, in an OEC 104 (I) hearing must establish

by a preponderance of the evidence that the scientific evidence satisfies the admissibility standard State v. O'Key, supra, at 307.

Following a lengthy eight day hearing, the court finds the State has met their burden of proof by a preponderance of the evidence that the drug recognition evidence satisfies the admissibility standard in accordance with Oregon law.

The drug recognition program was developed by Sargeant Thomas Page and the Los Angeles Police Department in the early 1970s. The International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA) have joined in their support of the program and developed accreditation standards. Today, thirty-three states have implemented the program. (State's exhibit 5; testimony of Sgt. Page as to three additional states). The program trains and certifies police officers t administer the twelve (12) step DRE protocol. The purpose of the DRE evaluation is to determine if a driver is impaired by one or more drugs listed within seven categories. At the conclusion of the evaluation, the driver is asked to submit a urine sample for toxicological examination which confirms or disputes the officer's opinion.

Dr. Marcelline Burns is a research psychologist who has studied, lectured, taught and testified extensively on the issue of the drug recognition program. Her vitae and publications are summarized in State's exhibit 13 which is impressive. According to Dr. Burns, the theory or technique has been subjected to several studies. She believes the DRE protocol provides a test that is valid over 83.5% of the time as found in the Arizona Governor's Office of Highway Safety study. (John Hopkins study: 91.7% accurate; Los Angeles field study: 94% accurate for something other than alcohol and 87% accurate identification for one drug). Dr. Burns acknowledges the Journal of Toxicology report of the study conducted at the Addiction research Center in Maryland was unimpressive with 44% accuracy rate. She discounts the results of this study because the evaluation was not the standardized DRE protocol. It was significantly modified.

The DRE protocol is a amalgamation of many specialized fields such as medicine, science and research. Dr. Burns concluded that the integrated methods produce results because the methods are systemized and standardized. She believes that the DRE protocol belongs to the law enforcement community, the pharmacology community and behavioral pharmacology and to the community that studies alcohol and drug affects on human performance. Based upon her own experience, training, research and review of the literature, she has an opinion that the DRE is accepted by those in the field of these areas. She believes the DRE protocol is a valid and a reliable methodology when it is done properly and that it is scientifically reliable and accurate.

Dr. Burns countered criticism of the DRE protocol. One criticism is that the DRE protocol relies upon a medical diagnosis performed by nonmedically trained persons. She supports the protocol because she has found it to be a valid observation of behavioral symptoms by those persons properly trained to note behavioral clues. In response to criticism that DRE is subjective, she stated it is informed observation with standards for objective measurement of symptoms. Dr. Burns concurs with other witnesses that the drug blood levels and impairment is not easily correlated.

In reviewing the four factors set forth in Daubert v. Merrell Dow Pharmaceuticals, supra, and State v. O'Key, supra, the court finds the DRE protocol has been tested as evidenced by the studies introduced in to evidence. (State's exhibits 1, 2, 20, 25, 26, 31, 34). The DRE protocol has been subjected to peer review and publication as evidenced by the studies and the numerous publications authorized by Dr. Burns and subjected to peer review. As a result of the studies, LAPD's experiences and Oregon's 1995 DRE experiences, the DRE protocol has been shown to have a reliability testing rate. The NHTSA and LACP created national and international standards for training and certification which has been adopted by Oregon. (State's exhibits 11, 32.) The final factor is the degree of acceptance in the relevant scientific community. As of the date of the motion in this case, thirty-three states have undertaken DRE training and certification programs in conjunction with the LACP and NHTSA. The growing numbers evidence the growing acceptance of the DRE protocol. The DRE protocol continues to gain acceptance amongst the community of law enforcement, the community that studies alcohol and drug affects on human behavior and the community of pharmacology. The testimony from other qualified physicians that the DRE protocol is not accepted within the specialized medical community is less relevant because the DRE protocol is not intended to be a diagnostic tool for medical treatment.

The DRE protocol is intended to be a tool to measure impairment for purposes of traffic enforcement.

The court finds the DRE protocol is scientific evidence and should be subjected to the scrutiny of reliability and validity. The court finds the proffered evidence is relevant as to whether a person is driving impaired, that is while under the influence of a controlled substance. The court finds the proffered evidence would assist the trier of fact in reaching a conclusion. The court believes the probative value outweighs the prejudicial value to the defendants.

The court concurs with the results in State v. Klawitter, 518 N.W.2d 577 (Minn. 1994). However, the court finds the DRE protocol is scientific evidence subject to the applicable Oregon standards for admissibility. The court finds the State met their burden of proof in accordance with the Oregon standards previously set forth. This court also concurs with the Minnesota court that reference to the trained police officer as an "expert" in the presence of a jury would be a comment on the evidence and would lend undue weight to one person's testimony and credibility. The State may refer to the trained officer as an evaluator or a trained officer without reference to the Arkansas, 382 Ark.536, ____ S.W.2d ____ (1997) (No. 96-993), 1997 WL 257411; State v. Cammack, (Minn.App., March 11, 1997), No. C5-96-1000, 1997 WL 104913; Com. v. Dunne, 690 A.2d 1233 (Pa.Super. 1997); Halter v. Dept. of Revenue, 857 P.2d 535 (Colo.App. 1993); People v.Quinn, 580 N.Y.S2d 818, 153 Misc.2d 139 (1991).

In comparing the stature and qualifications of the many expert witnesses, the court finds each witness very qualified within their own are of expertise. In reaching the conclusion to admit DRE evidence as a matter that the trier of fact may consider, the court is giving more weight to Dr. Burns because she has specialized in the research of the affects of alcohol and drugs on the performance of human beings since 1969. The court does not discount the qualifications of the other expert witnesses but rather believes the focused opinion of Dr. Burns carries greater weight.

In an effort to reduce redundancy, the court has not rearticulated each of the seven factors set forth in State v. Brown, supra. The court believes the DRE protocol meets the seven factors. Two of the factors the court hasn't specifically addressed is the novelty of the invention and the subjective interpretation of the expert. The DRE protocol relies upon a series of tests taken from other scientific and medical specialties. The technique is not novel. It simply relies upon a specific series of tests used for other purposes and relies upon the trained observer to interpret the behavior demonstrated by the subject. The subjective interpretation of the expert is qualified through training and the expert's conclusions are measured against the toxicological analysis of the subject's urine.

It is hereby ordered that the DRE evidence proffered by the State is admissible in each case subject to the qualification that the officer not be referred to as an "expert" in the presence of the finder of fact.

Dated this 8th day of July 1997.

/s

___________________________________

Judge