DRE Testimony, case decisions

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DRE Case Summary
"Frye" and "Daubert" Decisions
regarding admissibility of
Drug Recognition Expert testimony

By
Sergeant Thomas Page
LAPD DRE Unit

"Frye" refers to a United States Federal Court opinion dealing with the admissibility of scientific evidence. The court established that new or novel scientific evidence, or the novel application of scientific principles, must be shown to have met with general acceptance in the relevant scientific community before it can be admitted. Although a number of jurisdictions have abandoned "Frye" in favor of the new Federal standard (Daubert), many consider "Frye" to be the "gold standard" of admissibility of scientific evidence.

1990
State of Arizona v. Dayton Johnson and Samuel Rodriguez, et al. Defendants. Nos 90056865 & 90035883 (Unpublished Opinion).

The Municipal Court of the City of Tucson, County of Pima, State of Arizona.

"Virtually all the witnesses agreed that the scientific procedures utilized by trained drug recognition experts are reliable and are generally accepted in the scientific community. The methodology in place, used by trained law enforcement personnel in the field, has been shown to produce reasonably reliable and uniform results that will contribute materially to the ascertainment of the truth."

On May 7, 1992, the Arizona Supreme Court heard oral arguments in a special proceeding regarding this case. The Justices uniformly rejected the application of "Frye" to the DRE procedures. The Chief Justice observed that the component examination procedures had been established for fifty years.

The prosecutors in this case were Tom Rankin (Tucson) and Cliff Vanell (Phoenix).

Expert witnesses for the prosecution included: Sgt. Richard Studdard, LAPD, Marcelline Burns, Ph.D., Sgt. Thomas Page, LAPD, Zenon Zuk, M.D. and Eugene Adler, toxicologist.

1991
The People of the State of New York v. Mary Quinn, Defendant, Docket No. 3130122, District Court, Suffolk County, October 24, 1991, 580 N.Y. S. 2d 818, 153 Misc.2d 139 (N.Y.D.C. 1991)

"The court found the People's evidence to be persuasive. The protocol is relatively simple. Jurors should have no trouble understanding the testimony of the DRE witness."

"Further, nothing contained in the protocol is a new invention. It is rather a compilation of tried and true procedures utilized by medical science and the law enforcement community in similar contexts for many years."

"The Court believes that the protocol's underlying principles are not so hypertechnical nor the skills required so specialized as to require professional medical training."

"The Court holds that the people have successfully established that both the HGN test and the DRE protocol meet the standards enunciated by "Frye" and "Middleton."

The prosecutors in this case were Joe Lombardo and Richard Frankel (Suffolk County).

Expert Witnesses for the prosecution included: Richard Studdard, retired LAPD Sergeant, Marcelline Burns, Ph.D., Sergeant Thomas Page, LAPD, Technical Sergeant Douglas Paquette, New York State Police, Zenon Zuk, M.D., David Peed, O.D. and Edward Briglia, Ph.D.

1992
County Court, Boulder, Colorado Case No. 92M181(Unpublished Opinion) People of the State of Colorado v. Daniel Hernandez.

"The DRE methods are accepted within the scientific community because they have been found to be reliable." "The court finds that the expert does have sufficient specialized knowledge to assist the jurors in better deciding whether the defendant drove his car when under the influence of a specific drug. The DRE testimony can be used at trial provided a sufficient foundation is laid."

Overall, this court ruled that the procedures used by DRE's are not new or novel scientific techniques that must meet the "Frye" standard.

The prosecutor in this case was David Archuleta (Boulder County).

Expert witnesses for the prosecution include: Sergeant Thomas Page, LAPD, Zenon Zuk, M.D., Marcelline Burns, Ph.D., Rick Abbott, M.D., and Laurel Farrell (chemist).

1993
State of Minnesota in Supreme Court, C6-93-2092, filed June 30, 1994. (Unpublished Opinion)

State of Minnesota, City of Minneapolis vs. Larry Michael Klawitter, 518 N.W. 2d 577 (1994)

"Given proper foundation and subject to other qualifications, opinion testimony by experienced police officer trained in use of so-called drug recognition protocol is generally admissible in evidence in a trial of a defendant for driving while under the influence of a controlled substance."

The court determined that the gaze nystagmus tests satisfies the requirements of "Frye."

"We agree with the trial court that the officer should be allowed to give an opinion based on the officer's training and experience and his or her observations following the 12-step drug recognition protocol, as long as (a) there is sufficient foundation for the specific opinion expressed, (b) the state does not attempt to exaggerate the officer's credentials by referring to the officer as a "Drug Recognition Expert" or to unfairly suggest that the officer's opinion is entitled to greater weight than it deserves, and ..." "We add only that it should be obvious that the mere fact that such opinion testimony is admitted does not necessarily mean that such testimony by itself will be sufficient to support a guilty verdict."

The court also determined that, outside of nystagmus, the components of a DRE examination are not scientifically new and are not subject to the "Frye" test.

The trial court stated, "...there is nothing scientifically new, novel, or controversial about any component of the DRE protocol itself. The symptomatology matrix used by DRE's to reach their conclusions is not new and is generally accepted in the medical community as an accurate compilation of signs and symptoms of impairment by the various drug categories."

The prosecutor in this case was Karen Herland (City of Minneapolis).

Expert witnesses for the prosecution included: Sergeant Thomas Page, LAPD, Dr. Marcelline Burns (psychologist), Dr. David Peed (optometrist), Dr. Zenon Zuk (medical doctor), Eugene Adler (criminalist), Dr. S.J. Jejurikar (Minnesota Bureau of Criminal Apprehension) and Robert Meyer (toxicologist).

1994
11th Judicial Circuit in and For Dade County, Florida Case No. 245998,9-I (Unpublished Opinion)

State of Florida v. Frederick Williams Judge Maxine Cohen Lando Original filed January 19, 1995

"Given proper foundation and subject to other qualifications, opinion testimony by an experienced police officer trained in the use of the drug recognition protocol is generally admissible in evidence in a trial of a defendant charged with driving under the influence of a controlled or chemical substance. Furthermore, Horizontal Gaze Nystagmus (HGN) test results are generally admissible to establish (1) that the defendant was impaired; and/or (2) that the defendant was over the legal limit; and/or (3) the defendant's specific breath or blood alcohol level at the time he performed the test."

This court found that the "Frye" standard is inapplicable to the DRE Protocol because neither the protocol nor any of its subsets (excluding HGN, VGN, and Lack of Convergence) are "scientific." Further, these tests are neither new nor novel.

The court also stated that "Frye" is inapplicable to HGN, VGN, and LOC because none of them are new or novel. "None of these tests or the theories and procedures they encompass, are new, novel or emerging scientific techniques. The medical and psychological professions have acknowledged the tests' underlying theories and procedures for decades."

The court concluded:
"Drug recognition training is not designed to qualify police officers as scientists, but to train them as observers. The training is intended to refine and enhance the skill of acute observation...and to focus that power...in a particular situation."

This court followed the Klawitter (Minnesota) decision, that it requires the state to "lay a proper predicate before referring to a DRE as anything other than a DRE or Drug Recognition Evaluator or Examiner."

"The real issue is not the admissibility of the evidence, but the weight it should receive. That is a matter for the jury to decide."

The prosecutor in this case was Steve Talpins (Dade County).

Expert witnesses for the prosecution in this case included: Marcelline Burns, Ph.D., Zenon Zuk, M.D., Robert Dobie, M.D., Sergeant Thomas Page, LAPD, and others.

1997
Circuit/District Court for the State of Oregon for Douglas County State of Oregon, Plaintiff vs. Shelly Buford, Brad Allen Hayes, Debra Sampson, Irma Rae Smith, Thomas Leonard Warner.

Judge Joan G. Seitz.

Case Numbers 97CR0207MI, 96CR2137MI, 96CR2748MI, 96CR2696MI, 96CR2736FE Dates of Proceeding: May 20, 1997 - May 30, 1997

Opinion dated July 8, 1997

"The court concurs with the results in State V. Klawitter. 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 DRE protocol relies upon a series of tests taken from other scientific and medical specialities. 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."

The prosecutor in this case was Mary Anderson.

Expert witnesses for the prosecution in this case included: Marcelline Burns, Ph.D. Sergeant Thomas Page, LAPD, and others.

1997
United State District Court, District of Nevada United States of America, Plaintiff, vs. Larry Lee Everett, Defendant U.S. v. Everett, 972. Suppp.1313 (D. Nev. 1997)

Judge Roger L. Hunt, United States Magistrate Judge

Opinion dated June 25, 1997

This case involved a challenge to DRE testimony based on the Daubert Standard.

"...this Court finds that DRE testimony is governed by Rule 702, but not by Daubert, on the basis that the DRE's testimony is not 'scientific' in nature, but based upon observation, training and experience."

"In fact, this court holds that even if the DRE program is found to be 'scientific expert testimony' it meets the criteria of Daubert in all but possibly one factor."

"...this Court finds that the DRE program, with the possible exception of potential rate of error, adequately meets even the requirements of Daubert for the purposes of admissibility of the testimony. Whether the testimony gives rise to the further finding of being impaired by or under the influence of drugs is quite another matter."

"The qualified DRE cannot testify as to scientific knowledge, but can as to specialized knowledge which will assist the trier of fact to understand the evidence."

The prosecutor in this case was Dan Hollingsworth. The court did not hear any live testimony. The court acknowledged testimony by the following based on prior testimony and briefs: Sergeant Thomas E. Page, LAPD, Marcelline Burns, Ph.D., David O. Peed., O.D., Zenon Zuk, M.D., and Eugene Adler, Arizona Department of Public Safety Toxicologist.

1997
Municipal Court of the City of Seattle King County, State of Washington City of Seattle vs. Joseph Mandell, Somatra Sen, Ross Steward Nos. 286205, 284477, 299311, 2284931

Judge Ronald Kessler

Opinion dated June 11, 1997

The court ruled that the entire DRE protocol is subject to "Frye" analysis.

"Lay witness in Washington may testify to an opinion of alcohol intoxication... The plaintiff has established that a police officer trained in drug recognition protocol is more than a lay witness, i.e., has greater expertise in recognizing the physiological effects of certain controlled substances than the average citizen.

"The court concludes that where a witness is established as being trained in the use of the drug recognition protocol and administers it in proper manner and where there is evidence of drug use contemporaneous or near-contemporaneous with driving..., then drug recognition protocol evidence is admissible as the basis for the witness' opinion that the defendants were under the influence."

The court also quoted the "Klawitter" case, saying that "...in the courtroom the officer shall not be called a 'Drug Recognition Expert.'"

Brooke Schafer, Assistant City Attorney, prosecuted this case.

Expert testimony was provided in the form of written affidavits from Sergeant Thomas E. Page, LAPD, Marcelline Burns, Ph.D, and others.