County Court, Boulder, Colorado
Case No. 92Ml8l

ORDER: RE: MOTION IN LIMINE

People of the State of Colorado, Plaintiff

v.

Daniel Hernandez Defendant.

A hearing was requested by the State of Colorado to determine the admissibility under Frye of the opinion of a Drug Recognition Expert in a prosecution for driving while under the influence of drugs. In a written opinion, the Honorable Virginia Chavez of the County Court of Boulder Colorado held that Frye was inapplicable to the DRE procedures and that such investigation was admissible under Rule 702, Colorado Rules of Evidence

For the People of the State of Colorado, David Archuleta
For Defendant:, Michael R. Brown; Harry Holmes

Chavez, Judge

This matter comes before the court on the prosecution's motion in limine, seeking the admission of expert drug recognition testimony through Boulder Sheriffs Deputy Greg Schumann. The defendant, accused of driving under the influence of drugs, disputes the reliability and admissibility of such testimony. The Court will address and resolve these issues.

SUMMARY OF FACTS

Defendant was contacted after Boulder Police officer Thomas saw him driving westbound on Valmont; approaching a red light at the intersection of 30th and Valmont in Boulder; stopping into the intersection beyond the curb line; turning wide right and driving north on 30th while weaving in his lane. Officer Thomas also saw a temporary tag in the rear window that was not readable. For these reasons he contacted the defendant to investigate.

The defendant stopped his car without difficulty at O'Neal Parkway and 30th in response to the officer's emergency lights. The officer observed the defendant to be the car's sole occupant. He smelled the odor of burning marijuana emanating from the car's interior. Officer Thomas, a police officer for six years, previously worked vice and narcotics in the Wheatridge police department and could identify the odor from his professional experience.

Thomas asked Defendant to produce his driver's license registration and insurance. Defendant replied that he had no license or insurance but did provide registration. Officer Thomas inquired of the defendant and Defendant denied any knowledge of marijuana. Defendant was asked to and did step to the front of his car.

The officer entered the passenger compartment of the defendant's car and took a burning cannabis cigarette from the ashtray. Based upon his experience the officer opined that the cigarette had been in the process of being smoked.

Officer Thomas then confronted the defendant with the burning cigarette. It is not clear to the court what words were exchanged but Defendant admitted to smoking the marijuana.

Defendant was arrested and placed in the patrol car. Thomas returned to Defendant's car where he found a baggy with what he believed to be marijuana beside the front seat. The cigarette, as well as the contents of the baggy, tested presumptively positive for the marijuana.

The defendant was Mirandized by Officer Thomas at the Police station. He stated he understood his rights but the officer could not specifically recall that Defendant waived his right to an attorney. The defendant again admitted to smoking marijuana in response to the officer's questions.

Officer Thomas saw no indicia of alcohol intoxication. However, based upon the driving he observed, coupled with the burning marijuana cigarette defendant agreed he consumed, Thomas requested a drug recognition expert meet with him to investigate the possibility that defendant was impaired by drugs. Officer Thomas has had no specific training in recognizing indicia of drug impairment as it relates to the ability to safely operate a car.

Greg Schumann, a Boulder Sheriff's Deputy, responded to Thomas. He has been trained as a "drug recognition expert" (hereafter DRE). Deputy Schumann became a DRE after being referred to the program, attending a seven day preschool, a five week main school, testing for proficiency and then successfully graduating. His DRE log was admitted as exhibit G.

He learned that Thomas observed no indicia of alcohol intoxication. The arresting officer advised Schumann of the driving observations, the marijuana's presence and Defendant's admission.

Deputy Schumann then met the defendant and began a twelve step process for recognizing drug ingestion and identifying the category of drug used. Deputy Schumann first tested Defendant's breath for the presence of alcohol with a machine certified by the Department of Health. The results of that test were negative for ethyl alcohol (0.00).

Deputy Schumann interviewed the arresting officer to obtain a history prior to arrest. This procedure was used to help distinguish between effects caused by drug ingestion or any medical problems.

The DRE proceeded to a preliminary assessment making his own initial observations of the defendant in a non-intrusive manner. He tested Defendant's actions and reactions to stimulus in order to determine his condition. He sought evidence of impairment, including whether Defendant understood what was going on about him and then compared his observations to those of Officer Thomas.

Deputy Schumann then examined Defendant's eyes to observe his ability to track equally since there can be some horizontal and vertical nystagmus (involuntary jerking of the eye) with drug usage. There was no nystagmus.

He also checked for convergence; i.e., the ability for each eye to move simultaneously towards the nose in a crossed eye fashion. The officer did see a lack of convergence in the bloodshot and watery eyes. He observed that Defendant's eyes appeared as if they would cross and then they stopped short about half way in from dead center. He testified that while it can be painful to fully converge, the test has never been stopped due to such a complaint.

The officer further testified that with the exception of thirty percent of the population, a persons eyes should be able to cross during the convergence test. He did not know whether or not the defendant fell within that thirty per cent of the population.

He then tested Defendant's eyes for pupillary reaction to varying light intensities. According to Deputy Schumann, a person cannot control the pupillary reaction if drugs are present and the pupils are slightly larger when marijuana has been ingested. He testified that he was trained to examine eyes to distinguish between any neurological damage or medical problem and drug induced effects which contributed to the defendant's physiological responses. He found no medical problems.

Deputy Schumann also said he saw rebound dilation in the defendant's eyes, which he described to be similar to squeezing a balloon and then watching the pressure dissipate. He indicated that this is another indicator of drug impairment.

The next phase of the officer's assessment concerned psychophysical or divided attention testing. Deputy Schumann indicated that driving requires divided attention. The defendant performed various maneuvers commonly known as roadside sobriety tests.

The officer first conducted the Romberg test, in which the defendant had to tilt his head back slightly, close his eyes and keep his arms to his sides. He swayed one to two inches. The officer said that one inch forward or backward or side to side is considered a slight sway. In his opinion, a perfectly sober person will have a slight circular sway or be stationary. He concluded that Defendant's motor control was affected, supporting an opinion of marijuana consumption.

The defendant next performed the heel to toe test. He was told to take nine steps forward, toe touching toe, to turn and repeat. While he did keep his balance during the instructional phase without raising his arms, Schumann testified that Defendant missed two times, did not count properly to nine and walked rather than piloted on his turn. On his return nine steps he missed one step. Deputy Schumann said that generally a sober individual will do this maneuver perfectly.

The defendant then completed the one leg stand. He was told to choose a leg on which to stand and to raise the other leg white counting aloud to thirty. Schumann testified that Defendant swayed, failed to count aloud and put his foot down after a few seconds before lifting it up where it remained. Deputy Schumann added that Defendant's swaying was indicative of impairment because some people who are capable of competently performing the test do not.

Defendant also performed the finger to nose test. The officer told him to put the tip of his index finger to the tip of his nose. The officer said that Defendant failed this test because the first time he touched his lower lip below the nose, the next two times be touched his right nostril, then his left nostril and finally he touched the bridge of his nose. The officer said that if this is not done well it indicates impairment because a person cannot completely control motor skills nor do two things at once.

The officer then tested the defendant's internal clock by having him close his eyes and count aloud thirty seconds. Meanwhile, Schumann used his watch for "accurate" timing. He testified that ordinarily a person can come within a couple of seconds of thirty seconds by counting indicating a normal internal clock. A person who has consumed marijuana may have a faster or slower internal clock due to an altered perception of time. In this situation the defendant did not time himself accurately in thirty seconds.

Deputy Schumann testified that he took Defendant's vital signs, including blood pressure and pulse. On three takes, Defendant's pulse was 86, 86 and 92. While a pulse of a person suspected of using marijuana would be high, Schumann felt that the first two pulses were within normal range and the third was slightly higher.

Per Schumann, blood pressure maybe slightly elevated when drugs are consumed. His opinion was that Defendant's blood pressure was normal.

Testimony from the deputy was that body temperature could be affected by marijuana usage. Defendant's temperature was 98.6 and considered normal.

The deputy testified that Defendant was then examined for the mode of drug ingestion. The officer looked at eyes, ears, mouth, fingers and arms. He found some blistering on the back of defendant's tongue, consistent with marijuana consumption. The officer observed Defendant's leg shaking and eyelids twitching. According to Schumann, this is significant because cannabis may cause muscle tremors in the body. He has never seen a toxic free person with eyelid tremors.

Finally, the officer rendered an opinion based upon his total observations and communications that Defendant was under the influence of cannabis sativa (marijuana), He stated that he weighed equally each of the criteria in reaching this conclusion. He then requested a urine sample of Defendant in order to confirm his opinion. The sample was provided in the officer's presence and sealed by him for subsequent laboratory testing at the Colorado Department of Health. Schumann's DRE log (exhibit G) supported his assessments for marijuana which were subsequently corroborated by urinalysis in 18 of 21 cases.

Deputy George of the Boulder Sheriffs Office testified that he trained Deputy Schumann as a Drug Recognition Expert. Deputy George has been drug recognition certified as an officer and instructor. He testified to the DRE process and duplicated Schumann's description of the recognized methodology. He reiterated the course requisites, including practice on live subjects, participation in a poly drugs course, and writing and court testimony practicums. Student manuals were admitted into evidence through his testimony as exhibits T and U.

George further testified that students must pass a written exam with at least 80 percent accuracy. He said that students must examine live subjects and be able to positively confirm twelve substances, in four of seven drug categories, used by fifteen subjects. Two certified DRE instructors evaluate the students for accuracy.

There are also comprehensive oral and written tests. Assuming the student passes, he becomes state certified by the Colorado Department of Highways and nationally recognized by the Institute of Chief of Police. Schumann and George are both so certified and each provided their certifications in exhibits F and J respectively. According to Deputy George, Colorado's standards for certification are higher than those required nationally. Schumann and George also supplied resumes, exhibits D and J, respectively.

Deputy George was trained by the Los Angeles Police Department's Sergeant Page. That officer was among the creators of the drug recognition program in Los Angeles. Page's credential, found in exhibit H, include certification as an instructor for DRE methodology. Page testified to having been frequently called upon to assist others in preparing for Court hearings. At other times medical professionals have consulted him when trying to determine what substance(s) an apparently drug influenced patient has ingested. He has also court testified numerous times as an expert.

The sergeant stated that he has drug recognition trained persons outside law enforcement, including doctors, nurses, toxicologists and prosecutors. He has consulted with those in the work place, including the state of California in order to help others determine whether and what drugs were ingested by suspected employees.

Officer Page detailed the various drug categories for which a DRE will look. The list includes Central nervous system depressants, stimulants, narcotics, inhalants and cannabis. Within those categories is a matrix of common symptoms as observed by those in the medical profession. Sgt. Page indicated that each symptom listed under the matrix is not necessarily seen in every case. The amount of drug consumed, the time when taken and the individual physical makeup will vary the individual response to an ingested drug.

All of the officers testified to a form, exhibit B, used for documenting the DRE's observations. This form, which varies by agency only with respect to the agency's identification information, provides a checklist for the primary signs and indicators of drug usage. It includes an in-depth, systematic and logical assessment for persons who are suspected of using drugs, according to two medical experts who testified at the trial, Dr. Zenon Zuk and Dr. Rick Abbot. These doctors testified that this information is the kind of information that a medical provider would gather, but that the DRE obtains more detail.

The physicians testified that the DRE's twelve step process is similar to the systematic approach a physician would employ with a patient in a clinical setting. For example, a physician will first determine the patients symptoms either from information gathered from the patient or another person. This parallels the DRE's observation period.

The physicians also said that they conduct a physical examination somewhat akin to that of the DRE, including taking a pulse and blood pressure reading, observing eyes and looking within the mouth. Then, the physician will analyze all the information received to determine the patient's condition, as does the DRE.

According to the doctors' testimony, they may order a laboratory testing order to support a diagnosis. Similarly, after the officer has determined what drug the person may have taken, he will obtain a urine sample to confirm his opinion.

Both physicians testified to having had occasion to rely upon DREs to assist in determining that drug has been used by a person. Dr. Abbot, head of Boulder Community Hospital Emergency Department, specifically indicated that he has had interactive communications with DREs between six and ten times a year. He has in the past and would in the future use DREs in order to better categorize or subcategorize drug intoxication while awaiting toxicology results.

Dr. Zuk, a physician in Los Angeles, participated in and completed the DRE training program in 1989. Dr. Zuk has had several occasions to ask an individual in the jail dispensary about his drug ingestion after the police officer has completed his evaluation of the person. He has found that in fact the drug admittedly taken matched the DRE's assessment of the drug used. Dr. Zuk believed the individual because the two had developed a trusting relationship. He said that in cases where people have used more than one drug the officer has been better able than he to identify those ingested.

Dr. Marcelline Burns, a research psychologist who has helped develop the roadside sobriety test commonly used on persons suspected of driving under the influence, also testified for the prosecution. She helped develop methodology for DREs by conducting controlled laboratory and field studies of sobriety testing and drug recognition.

In one of the controlled studies, she said that officers accurately reported 75 of 77 drugs used. In a second study 75 of 80 were accurately identified. She was aware of other studies, including one supervised by Eugene Adler from the Arizona Department of Public Safety. There, DREs correctly identified at least one drug used by an individual and as verified by toxicology results with 86% accuracy.

Additionally, Dr. Burns stated that the National Highway Traffic Safety Administration (NHTSA hereafter) examined DREs when considering how to use them to promote highway safety. Initially, she said, NHTSA was very skeptical about DREs. Dr. Burns designed a study and reported the results to NHTSA. In that study, DREs correctly identified the drug causing impairment in an individual, as subsequently corroborated by toxicology reports, in 79 per cent of those assessments. In explanation of the 79%, she testified that in some instances the level of drug ingested might be too low to be properly identified by urinalysis. Alternatively, she said, the correct test may not have been done. NHTSA now recognizes the DRE.

Dr. Burns emphasized that the DRE methodology requires that an officer evaluate and compare the total circumstances for drug signs and symptoms to well known effects of drugs and symptoms before rendering an opinion. She testified that the underlying method used by DREs apply commonly accepted scientific principles. She said that not all members of the scientific community know what drug recognition is and that the community specifically interested in DRE methodology is not well defined.

In support of the lack of novelty, she notes that reading blood pressure, taking a pulse, observing pupillary reactions and eye convergence, and looking for tremors are all commonly used by physicians in a clinical mode. She also said that roadside sobriety tests are commonly accepted for assessing one's ability to safely operate a motor vehicle.

Dr. Burns indicated that the charts (exhibits I and E) used to identify symptoms of persons who are suspected of having used various drugs, may vary with respect to terminology. Otherwise the information is what physicians use when examining a patient for drug use. She added that the DRE program was aided by consulting physicians.

Burns, Sergeant Page and chemist Laurel Farrell¹, said that the role of urinalysis is to simply confirm the drug used, but not to show the amount consumed by the individual. Furthermore, the urine test indicates some drug usage presumably within a recent time period.

In this case, chemist Farrell oversaw testing of the defendant's urine specimen. She testified that there are sufficient controls and provided the procedures for ensuring that the chain of custody for the urine sample had not been breached. She was sure that it was the defendant's urine sample which tested positive for the presence of cannabis metabolites, as seen in the toxicology report, exhibit L.

Dr. Burns and Sergeant Page stressed the need for the DRE opinion due to the lack of relationship between drug positive blood or urine levels and the effect on driving. The inability to ever quantify drug impairment, as is possible with alcohol, was suggested. Dr. Burns said that DREs provide the only "art" currently available for determining drug usage by motor vehicle drivers.

Dr. Burns stated that it is a scientific fact that drugs affect driving due to their psychoactive effect on the brain. Once affected the ability to process information is impaired. She stated that because driving demands divided attention it is necessary for the brain to be able to accurately and efficiently process information without impairment, for safety's sake. She said marijuana, as well as its metabolites, cause such psychoactive effects.

Dr. Burns, Sergeant Page and Deputy George all concurred with Deputy Schumann's opinion based upon his observations. Each noted that Defendant's performance on the roadside maneuvers, combined with other observations, were consistent with Schumann's findings.

The prosecution seeks to have the expert testimony of Deputy Greg Schumann admitted at trial, contending that the "drug recognition expert" (DRE) opinion is admissible through Colo.R. Evid. 402, 403 and 702. Rules 402 and 403 provide for the admission of evidence when relevant to an issue to be resolved by the trier of fact. Such evidence is inadmissible if more unfairly prejudicial then probative. Rule 702 allows for the admission of expert testimony when it will assist the trier of fact in better understanding the evidence or in determining an issue.²

The defendant argues that it is the Frye³ test which applies and that the reliability of the testimony of a DRE is questionable, rendering it inadmissible. The prosecution urges rejection of the Frye test or at most to combine it with Rule 702 in determining the admissibility of the DRE testimony.

The court will address the admissibility of the testimony of Deputy Schumann initially in terms of whether be qualifies as an expert. Next the court will consider whether the testimony sought is relevant, is more probative than unfairly prejudicial, and, if it reliably assists the fact finder in trial. The court will also consider whether the testimony amounts to novel scientific evidence requiring satisfaction of the Frye test or in the alternative if the proffered evidence meets the 702 requirements.

I. Expert Testimony

Deputy Schumann was specially trained to identify the physiological effects of drugs. He was previously certified to perform roadside sobriety tests as well as the horizontal gaze nystagmus test. He had testified in court in driving under the influence cases and rendered opinions as to driver's sobriety. He qualified for participation in the program for DREs and was locally and nationally certified as a DRE upon his satisfactory completion of the training.

The creators of the DRE program provided an adequate foundation for the training, methodology employed by the DRE and level of proficiency required for course passage. Sergeant Page and Dr. Burns testified to materials used for training as well as how the training is conducted. They indicated that they relied in part on the expertise of physicians in the program's developmental stages. The DRE's physical examination of a subject is akin to that of a physician. The physicians who testified, Zuk and Abbot, said that there was nothing novel about the examination and that they look for these medical textbook characteristics when examining patients who have ingested a drug(s). The charts, exhibits I and E used for comparison of symptoms, have been recognized by scientists within the field and listed symptoms vary mostly as a factor of semantics.

An expert knows more about a specific field than does a layperson. Deputy Schumann qualifies as an expert in the area of drug recognition, if in fact that field is one legally recognizable as reliable. He knows more than a lay person about the symptomatology of drugs ingested in human subjects. Therefore, he has a specialized understanding of a subject at issue herein; i.e, whether Defendant was under the influence of drugs at the time he operated a motor vehicle.

II. Relevancy

Even though qualified as an expert, Deputy Schumann's testimony must be relevant; i.e., legally material to a factual issue in the ease. At issue is whether Defendant was under the influence of drugs. Evidence of Defendant's driving, coupled with his verbal responses to questions, mechanical movements upon the officer's initial contact, performance on the roadside tests and Schumann's DRE observations may aid the fact finder in deciding whether the Defendant was under the influence of drugs at the time he was driving. The court finds such testimony relevant.

III. Prejudice

Evidence may be relevant to an issue yet inadmissible if the probative value is substantially outweighed by its prejudicial effect. Courts have found evidence so prejudicial as to be rendered inadmissible when the jury will be governed by emotion or otherwise could misuse the proffered evidence in rendering a verdict; i.e., evidence which is sensational or shocking in nature, which provokes anger or inflames the passions of the jury, or arouses overly strong sympathetic reactions, or hostile punitive impulses, or which appeals entirely to other emotions as against reason."⁴ The DRE testimony raises none of these concerns requiring exclusion.

In United States v. Brown,⁵ the jury in a homicide trial received hearsay testimony of the victim espousing his fear of the defendant. The trial court gave a limiting instruction at trial's end that the evidence could only be considered to prove victim's state of mind and its effect, if any, on his subsequent conduct; that it could not be used to determine defendant's state of mind or conduct; and, could not support the conclusion that defendant inflicted fatal injuries upon the victim. Defendant was found guilty and that conviction was reversed. The appellate court reasoned that the risk as too great that the jury could misuse the evidence to prove Defendant's conduct, a use for which the evidence was not competent.

The DRE evidence sought by the prosecution is competent to attempt to prove the defendant's lack or ability to safely operate a car. The testimony does not present the risk of being misused by the jury. DRE evidence in this case is not inadmissible because it may tend to prove the defendant's guilt. The prosecution is entitled to use such evidence provided it is not unduly prejudicial. This court finds it is not.

The foundational evidence and the opinion of Schumann supports an ultimate conclusion in the case, that Defendant was under the influence of drugs at the time he operated his car. This alone does not make the evidence substantially more prejudicial than probative. This opinion is no different than if Schumann were to testify at a trial where the defendant's alleged intoxicating substance was alcohol. An officer is permitted to give his opinion about the intoxication of the defendant although this is the ultimate issue for a fact finder.⁶ Such evidence will not be misused by the jurors as in Brown.

IV. Reliability

The prosecution argued that the DRE's testimony concerning a substance other than alcohol is imperative because drug symptomatology is not readily identifiable to the fact finder. The People assert and the Court agrees that jurors will easily understand the behavior and physically identifiable signs of an alcohol intoxicated person. The court can only speculate that the jurors, either for fear of being too forthcoming with their drug experiences or due to genuine naivete, are apparently unfamiliar with the physical manifestations observable upon drug ingestion. The effects of the seven classes of drugs are reported in medical and scientific tests and the DRE is ostensibly trained to report similar observations.

A jury may not be able to decide that a person is under the influence of a drug, for example, marijuana, by hearing testimony that a defendant was driving erratically; did not appear to be under the influence of alcohol; had a 0.00 blood alcohol level; had a marijuana cigarette burning in his ashtray where he was the car's sole occupant and admitted to smoking same; and, performed marginally on roadside sobriety tests. The prosecution should be permitted to use Schumann's testimony to bolster their ease if deemed sufficiently legally reliable.

The defendant contends that this would place the jury in the same situation as People v. Anderson 637 P.2d 3l4 (Colo. l98l). There, the Court ruled a polygraph result inadmissible because the jury would be prejudiced by a machine which purports to determine the truthfulness of an individual. The court reasoned that the fact finder would substitute its own judgment in assessing credibility in favor of the machine's results. The defendant argues that the naive fact finder would substitute its evaluation of the evidence in favor of the DRE's opinion.

The reliability of the evidence to be proffered through Deputy Schumann has been analyzed via Frye and Rule 702. If reliable, it is admissible.

A. Frye Analysis

Frye is applicable to novel scientific devices and processes involving the manipulation of physical evidence including lie detectors, experimental systems of blood typing, voiceprints, identification of human bite marks, and microscopic analysis of gunshot residue. See People v. Hampton. 746 P.2d 947, at 950-51 (Colo. 1987)

In each of these aforementioned applications, there is an individual examining evidence. The polygrapher asks questions and by use of an instrument interprets those results. The machine itself would have to be found to reliably measure physical responses of the test subject. The Colorado court has determined it cannot.

By comparison, the DRE uses no machine, aside from a blood pressure cuff, when conducting an examination. He employs his senses and compares his observations to a chart recognized by some in the scientific field. It is the training of and application by a person in law enforcement relative to this type of scientific information that is novel. The charts, Exhibits A & B, alone are not novel. Does this novel application mandate analysis by the Frye standard? This court thinks not.⁷

The DRE methods are accepted within the scientific community because they have found to be reliable. Physicians testified that based upon blood pressure, pulse, eye exam for convergence, dilation, red conjunctivae, tongue blistering, poor divided attention, tremors, and elevated body temperature are consistent with marijuana usage. Dr. Zuk testified to his participation in the DRE training and did not dispute the information disseminated through the training. Neither of the physicians believed properly trained law enforcement officers to be incapable of examining an individual and reporting similar observations based upon the DRE training. Both supported Schumann's opinion.

Thus, although it may not be applicable because the DRE is not specifically manipulating, but rather collecting physical evidence, the Frye test can be satisfied. It is deemed reliable in the scientific community which recognizes the DRE principles. Furthermore, that community recognizes police officers as competent to perform drug recognition evaluations and to render opinions thereon.

B. Rule 702 Analysis

The testimony of a DRE is admissible under Rule 102 if sufficiently legally reliable. Weinstein⁸ states that evidence may be admitted under this rule where (1) the expert's testimony will help the fact finder in resolving a controverted issue (2) if novel expertise is offered, the expert's specialized knowledge will enhance the fact finder's understanding; and, finally, (3) the expert has sufficient specialized knowledge to assist the jurors in the case.

Clearly the expert testimony will help the jury in resolving a controverted issue. Conceptually, the DRE helps the fact finder understand observations made by a police officer during an investigation of driving under the influence. The DRE educates the fact finder as to what physical criteria and behavioral characteristics make it more probable than not that a defendant was operating a car when under the influence of drugs. The methodology and its application can be explained in comprehensible terms allowing for the most unsophisticated individual to understand the DRE's testimony, thereby providing for a clearer ability to resolve the key issue at hand. Thus, the first prong for 702 admissibility has been met.

The DRE's expertise is novel only to the extent that a police officer is rendering a technical opinion based upon information gleaned from a more typically medical science approach. But consider that if an officer not specifically DRE trained, for example Officer Thomas, provided a jury with the evidence he gathered, they would hear his impression that the defendant's safe driving ability had been affected by marijuana consumption. The jury might mistakenly believe that someone who has previously worked vice and narcotics has special expertise to opine when one is under the influence of drugs. The testimony of the DRE may enhance the jury's understanding of how the human body shows the effects of drugs, from the physiological observations to the apparent inability to safely function behind the driver's seat. Therefore, the second prong of this test has been met.

The final question is whether the expert has sufficient knowledge to assist the jurors. The jury may question the ability the officer, even if qualified as an expert, to render what would appear to be a "medical" opinion. Of course it is free to completely disregard the testimony.

As the defendant has indicated the DRE need only be correct in their drug recognition evaluations in 80% of the time. Meanwhile, he argued, the inadmissible polygraph machine is purportedly accurate 95%. Defendant contends that the DRE testimony should be inadmissible on this basis. The argument is meretricious.

The distinction can be made that a polygraph is intended to support or detract from one's credibility. The jury is tested with the responsibility to be the sole judge of credibility and they are so instructed.⁹ While there is a danger that the jury could refer to the polygraph and substitute its credibility judgment in favor of a polygraph machine, the court does not consider this as likely for a DRE opinion. The DRE does not rely upon any single factor in rendering his opinion. And ultimately there is a safeguard in the laboratory analysis of blood or urine.

Colorado law provides for a court to take judicial notice of methods of testing a person's drug level, where that method is certified by the Colorado Department of Health.¹⁰ Because the urinalysis does nothing more than show that at some point, perhaps recently, drugs were used by the tested subject, the DRE testimony is beneficial.

Although the prosecution may elicit this testimony that may not be more than 80% accurate, the defendant may cross examine the witness to develop any shortcomings in the methodology and laboratory testing of human fluids. The jury will not be left to conclusively find the officer or methodology credible. Furthermore, the jury would be given the expert opinion instruction¹¹ to avoid the risk of blind acceptance of the expert's opinion.

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 final prong of Rule 102 has been satisfied.

The people's motion in limine is granted. The DRE testimony can be used at trial provided a sufficient foundation is laid.

It is so ordered this 14th day of August, 1992.

Virginia L. Chavez
County Judge

Footnotes:

¹       Ms. Farrell is a supervising chemist in the toxicology division of laboratories at the Colorado Department of Health. She performs and oversees laboratory testing of urine samples for persons suspected of driving under the influence. Her experience includes roadside sobriety test and DRE training; 16 hours of gas chromatography and another 23 hours of gas chromatography and mass spectrometry combined; 20 hours of immunoassay and 30 or so hours of urine quality assurance training.Go back to the document

²       Rule 702 reads as follows: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise."Go back to the document

³       The standard for admissibility of novel scientific evidence was set forth in Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923).Go back to the document

⁴       J. Weinstein & M. Berger, Weinstein's Evidence, Rule 403 Sec. 126, pp. 28-30,Go back to the document

⁵       160 App. D.C. 190, 490 F.2d 758, (1973); Weinstein's Evidence, Rule 403, sec. 126, p.31.Go back to the document

⁶       Rule 704 Colo.R. Evid. states: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."Go back to the document

⁷       Assuming arguendo that Frye applies, the court must decide whether the methodology is generally accepted in the scientific community. Among the methods employed by the DRE is the referral to the drug symptoms as listed in exhibits A and B. Dr. Burns testified that she knew of one scientist who disputed the validity of the symptoms chart. While an individual may disagree with the symptoms as set forth in some of the treatises or textbooks, this does not render the entire methodology less than generally accepted in the scientific community per Frye.Go back to the document

⁸       J. Weinstein & M. Berger. Weinstein's Evidence, Rule 102 (2), Sec 107-09, (1991).Go back to the document

⁹       C.J.I. 3:06 states: You may have to decide what testimony to believe. You should carefully consider all of the testimony given and the circumstances under which each witness has testified. Consider each witness' knowledge, motive, state of mind and demeanor while on the stand. Consider the witness' means of knowledge, ability to observe and strength of memory. Consider also any relationship each witness may have to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case. You should consider all facts and circumstances shown by the evidence which affects the credibility of the witness' testimony. You may believe all of the testimony of a witness, or part of it, or none of it.Go back to the document

¹⁰       This law is found at C.R.S. 42-4-1202(6).Go back to the document

¹¹       C.J.I. reads "You have heard witnesses who have testified as expert. You are not bound by the testimony of experts; their testimony is to be weighed as that of any other witness. It is entirely your decision to determine what weight shall be given their testimony."Go back to the document