STATE OF ARIZONA,

v.

DAYTON JOHNSON

and

SAMUEL RODRIGUEZ, et al. Defendants

No.90056865 & 90035883

THE MUNICIPAL COURT OF THE CITY OF

TUCSON, COUNTY OF PIMA, STATE OF ARIZONA

Proceeding initiated by defendants challenging the admissibility of the Drug Recognition protocol in prosecutions for driving while under the influence of drugs. In a memorandum decision, the Honorable Rita Jett finds the Drug Recognition protocol admissible against a challenge to its scientific validity.

Thomas Rankin, Tucson City Prosecutor's Office, Cliff Vanell, Phoenix City Prosecutor's Office, for the State of Arizona.

David Darby, Tucson City Public Defender's Office, for the Defendants.

JETT, JUDGE.

These cases came before the Court on Defendants' Motions to Suppress evidence arising from Drug recognition tests conducted by officers of the Tucson Police Department, on the grounds that: 1) drug recognition tests do not meet the Frye v. United States, 293 F.103 (D.C. Cir 1923) standard of admissibility, and 2) that a drug recognition officer does not qualify as an expert. Council agreed prior to hearing that these two cases would be consolidated solely for purposes of this Ruling.

I. THE DRUG RECOGNITION EVALUATION PROGRAM (DRE)

Development and validation of standardized field sobriety tests to detect alcohol impairment was begun in the late 1970s and early 1980s by the National Highway Traffic Safety Administration (NHTSA) (see Affidavit of John F. Oates, Jr., Highway Safety Specialist, NHTSA, filed in Open Court, 10/15/90.) NHTSA is an arm of the United States Department of Transportation, which devotes a major portion of funding and research energies to safety-related activities and training. Their involvement in the development of techniques to evaluate drug-impaired drivers was a natural outgrowth of these interests.

This involvement coincided with the concerns of law enforcement officers working in the field where the use of the "Alcohol Model" and standardized field sobriety tests [Transcript, hereinafter "TR", p. 10/15/90, 91-92] to investigate suspected impaired drivers, led to their conclusion that many motorists were impaired by something other than alcohol. Sgt. Richard Studdard, of the Los Angeles Police Department, testified that he and his traffic officers began to encounter this dilemma in the early 1970's. [TR 10/15/90, 91-991] Sgt. Studdard personally contacted various medical personnel and, ultimately, the Southern California Research Institute, with an eye toward developing a correlation between physically observable phenomena and a scientific base, as it related to drug-impaired drivers. The goal was to create a systematized process and methodology for the investigation of drivers who were suspected of being under the influence of a drug or drugs [TR, 10/15/90, 93-94.]

Dr. Marcelline Burns, a Research Psychologist who founded the Southern California Research Institute, had worked with law enforcement officers since 1975 in the development and standardization of field sobriety tests for the detection of motorists impaired by alcohol. Those tests are now used nationwide. [TR, 10/16/90, 73-74.] Together with Sgt. Studdard and the Los Angeles Police Department, and under contract with NHTSA, a field evaluation of drug detection procedure was begun in 1984, completed in 1985, and published by NHTSA in 1986. [Hearing Exhibit 21, hereinafter "H.E."]. Concurrent with the Los Angeles field study, a double-blind laboratory evaluation of subject examination procedure was conducted by the Behavioral Psychology Research Unit of the Johns Hopkins University School of Medicine. The purpose of the evaluation was to gain controlled experimental data concerning examination procedures being used in field situations by the Los Angeles Police Department, and the clinical techniques were derived therefrom. [H.E. 18] The Johns Hopkins study was jointly sponsored by NHTSA and the National Institute on Drug Abuse (NIDA), and was published by Johns Hopkins in 1985. In fact, the four raters involved in the study were Los Angeles Police Department Drug Recognition Experts, and included Sgt. Studdard. [TR, 10/15/90, 99.]

The results of the two studies, field and laboratory, were disseminated to the funding agency, and have been presented by Dr. Burns in Amsterdam, Orlando, Florida, and Puerto Rico. [TR, 10/16/90, 86.] In sum, those results show, inter alia, that:

as intoxicated had almost always received a drug,

and raters were quite accurate in specifying

which drug had been given to the subjects.

2. When police officers claimed drugs other than

alcohol were present, they were detected in the

subject's blood 90% of the time.

3. Police officers were able to correctly identify

at least one drug other than alcohol in 87% of

the suspects.

[H.E.'s 18 and 21.]

Sgt. John Patla, who is certified as both a Drug Recognition Expert and Drug Recognition Evaluation Instructor by NHTSA, heads and coordinates the DRE program for the Tucson Police Department. Sgt. Joseph Klima is his counterpart in the Phoenix Police Department. Both testified before this court as to their training and expertise with respect to drug recognition procedures. The efficacy of the Arizona DRE program was assessed by Eugene Adler, a forensic toxicologist with the Arizona Department of Public Safety Regional Crime Laboratory. [H.E.19.] The results of Adler's performance assessment show that the correlation percentages, when compared with those reported in the Los Angeles study, were within 4% overall. Arizona DREs rated somewhat higher with respect to the detection of cocaine, which Adler attributes to the utilization of urine samples, rather than blood, in Arizona. Adler concludes that the drug recognition program, as applied to motorists suspected of impairment, has become systematic and standardized in Arizona, and that its validity is supported by laboratory findings founded upon sound scientific procedures which are generally accepted in the scientific community. [TR, 10/16/90 115-116.]

II. THE FRYE STANDARD

A. Applicability of Frye to DRE Evidence

This court is compelled to make a threshold finding that the testimony of drug recognition experts will not, by being labeled "scientific evidence," mislead the jury. As the court said in State Ex. Rel Collins, 132 Ariz. 180 (1982), citing People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982), "any technique that in its application is likely to have an enormous effect in resolving completely a matter in controversy must be demonstrably reliable", in order that it not be given undue weight by the jury.

The body of testimony and evidence presented to the court in the case sub judice clearly cannot be interpreted or evaluated on the basis of the trier's own knowledge. The reliability and probative value of DRE methodology, when properly applied by a properly trained officer, is essential to the fact-finding task of the trier.

The court finds, therefore, that the Frye test is applicable to the testimony of Drug Recognition experts.

B. The Relevant Scientific Community and the Literature

Defendants contend that drug recognition tests and evidence resulting from the techniques used therein are not admissible because they do not meet the Frye test may not be satisfied "with testimony from a single expert or group of experts who personally believe the challenged procedure is accepted or is reliable." Collins, supra, at 199. Rather, the methodology must be generally accepted as reliable by the larger scientific community in which it originated. People V. Shirley, supra, at 796. In examining this issue, the Collins court held that:

"...the Frye test is satisfied when the court is able

to conclude that disinterested and impartial experts,

knowledgeable in the scientific specialty which deals

with and uses such procedures or techniques that come

to recognize the methodology as having sufficient

scientific basis to produce reasonably uniform and

reliable results that will contribute materially to

the ascertainment of the truth." Collins supra,

at 199.

It is beyond cavil that the Collins court made the Frye standard applicable within the State of Arizona, and further defined and clarified the holdings in Frye. Nonetheless, the body of case law that has developed around these issues is a living creature, susceptible to new interpretations and additional guidelines as other circumstances are presented to our higher courts. Such was the nature of the arguments brought before the Supreme Court of this state in State v. Superior Court, (Blake), 149 Ariz. 269, 718 P.2d 171 (1986). In Blake, the Public Defender amicus argued that HGN phenomena required assessment from experts outside the community of law enforcement, highway safety agencies, and behavioral psychologists. The Blake court acknowledged the need for validation studies by disinterested scientists. However, the court in Blake went on to say:

"We believe, however, that the relevant scientific

a new scientific procedure is often self-selecting.

Scientists who have no interest in a new scientific

principal are unlikely to evaluate it, even if a

court determines they are part of a relevant scien-

tific community. [I]t stands to reason that experi-

mental psychologists in the area of behavioral psy-

chology would be interested in verifying the va-

lidity of [this] test and should be included in the

relevant scientific community. Similarly, [this

problem] is a major concern of scientists in the

area of highway safety and they, too, should be

included." Blake, 149 Ariz. at 277.

The Blake court went on to state that the interest of traffic safety agencies in funding research to identify impaired drivers is not inherently biased or subject to question. Moreover, no convincing evidence was presented to this court, or to the Blake court, that other professional fields should be included in the relevant scientific community.

Defendants in the case at bar submit that there is little literature in the area of drug recognition as utilized in the field, and that the newness of the DRE protocol creates an inability on their part to dispute the conclusions of those professionals and experts who testified.

The literature and symposia are set forth in the Hearing Exhibits. A significant number of articles, reference works and other publications were produced or testified to before the court. The methodology involved in recognition of drug-impaired drivers, while it had its nascence in the early 1970's, has generated considerable interest, and has attracted a good deal of attention from a variety of professionals. The volume of literature may be expected to be substantially less than that with which the Blake court, and certainly the Collins court, was confronted.

This court does not feel that the sheer quantity of literature, or the length of time which spans the development of DRE methodology, is or should be, dispositive. Rather, the Court's evaluation of the evidence submitted to it is based upon indicia of technique, nature, method and application. Further, the Court has scrutinized the results of the methodology in terms of its reliability and uniformity.

CONCLUSION

This Court concludes that drug recognition methodology is susceptible to a Frye challenge and that such a challenge has been satisfied. Further, this court finds that the witnesses before it constitute the relevant scientific community, and that the reliability and veracity of the conclusions reached by properly trained DRE officers can be amply supported by the results of the Los Angeles Study and the Johns Hopkins University Study. The DRE test satisfies Frye, and Collins, and may be admitted into evidence, subject to properly laid foundation, to corroborate a charge that these defendants were operating a motor vehicle while under the influence of a drug or drugs.

Defendants' Motions to Suppress are, therefore, DENIED.

DATED THIS 2ND DAY OF NOVEMBER, 1990

RITA JETT

TUCSON CITY MAGISTRATE STATE OF ARIZONA,

v.

DAYTON JOHNSON

and

SAMUEL RODRIGUEZ, et al., Defendants

No.90056865 & 90035883

THE MUNICIPAL COURT OF THE CITY OF

TUCSON, COUNTY OF PIMA, STATE OF ARIZONA

Proceeding initiated by defendants challenging the admissibility of the Drug Recognition protocol in prosecutions for driving while under the influence of drugs. In a memorandum decision, the Honorable Rita Jett affirms her previous finding of November 1990 [editor's note: reproduced supra] that the Drug Recognition protocol is admissible against a challenge to its scientific validity.

Thomas Rankin, Pima County Attorney's Office, Michael Pollard, Tucson City Prosecutor's Office, Cliff Vanell, Phoenix City Prosecutor's office, for the State of Arizona.

David Darby, Tucson City Public Defender's Office, for the Defendants.

Evidence and the taking of testimony in these cases commenced on October 15, 1990, followed by the handing down of an Opinion by this Court on November 2, 1990. That Opinion is attached and incorporated [editor's note: reproduced supra] Because there had been no testimony presented by the Defendants in the 1990 hearings, and to ensure the completeness of the record, the Pima County Superior Court ruled that the testimony be reopened. Subsequent hearings were held in June and July of 1991, and this Opinion follows:

I. ISSUE AND PROCEDURAL HISTORY

There are thirty-two separate Defendants in this case, all of whom assert a challenge to the validity of the Drug Recognition protocol as used in the apprehension of suspected drug-impaired drivers. The gravamen of their challenge is the admissibility of testimony of qualified drug recognition experts in light of the standards of Frye v. United States, 203 F.1013 (1923), as adopted by the Arizona Supreme Court in State Ex Rel Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982). Defendants claim that such testimony may not be admitted because it is neither grounded in science nor generally accepted within the relevant scientific community.

This court found, on the basis of testimony taken in October of 1990 (see attached Opinion), [editor's note: reproduced supra] that the protocol and methodology in question were susceptible to a Frye challenge, and that such a challenge had been met. The Court must now determine the veracity of those findings in light of the testimony from additional witnesses, taken in June and July of 1991.

II. THE TESTIMONY

The State re-called Mr. Eugene Adler, a toxicologist employed by the Arizona Department of Public Safety Crime Lab. He testified, on the basis of a performance assessment involving over 500 subjects presented to the American Academy of Forensic Sciences [Transcript, June & July 1991, hereinafter "TR 91", pp. 5-9], that trained Drug Recognition Experts (DRE's) possess a highly reliable ability to detect the ingestion of drugs. Mr. Adler further testified that the testing procedure which formed the basis of this assessment is one which has been established as reliable in the scientific community [TE 91, pp. 20-22].

The Defendants then called Dr. Ann Hirschhorn, a neurologic consultant for Kino Hospital in Tucson. Dr. Hirschhorn's central objection to the Johns Hopkins study (see Opinion, attached), [ editor's note: reproduced supra] which provided a clinical basis for the development of drug recognition methodology, and to the methodology itself, is that the DRE protocol does not take into account impairment due to medical illness, head injuries [TR 91, pp. 62, 64-69], or other neurological causative agents [TR 91, p. 108]. On cross-examination, however, Dr. Hirschhorn conceded that she does not normally encounter patients who are under the influence of drugs, that she has little or no familiarity with the symptoms of so-called "street drugs," and that she is not herself acquainted with the training and methods utilized by DRE's [TR 91, pp. 109, 112-115, 117, 128-130]. Further, Dr. Hirschhorn testified that she is not a toxicologist [TR 91, p. 134] and that she is unfamiliar with studies which focus on drugs and impaired driving [TR 91, pp. 147-149].

The next defense witness was Dr. John Gaines, a biostatistician with the University of Arizona College of Medicine. The relevant and persuasive portion of Dr. Gaines' testimony, which was unbiased and helpful to this Court overall, occurred in response to the Court's inquiry [TR 91, p. 233]. Dr. Gaines testified that there was "nothing in the design or execution of any of these studies [Johns Hopkins, Los Angeles Field Study, Performance Assessment] that would render then invalid." Further, Dr. Gaines testified that the accuracy level of DRE's is "very, very substantially beyond that of chance performance." [TR 91, p. 233].

The Court then heard testimony from Dr. William Schipper, a Doctor of Optometry working with athletes at the University of Arizona. Dr. Schipper's testimony was not dispositive and offered nothing to refute DRE methodology. To the contrary, Dr. Schipper testified that the eye examination used by DRE's is widely accepted in the scientific community.

The final expert called by Defendants was Dr. John P. Morgan, a professor of pharmacology and toxicology at the City University of New York College of Medicine. His testimony was lengthy and probative. The examination of Dr. Morgan dealt with numerous areas of concern to the Court, including drug symptomatology and physiological and behavioral signs of drug impairment. The witness testified that he has not performed any studies with respect to identification of the drug-impaired driver, and has not conducted a validation study of the Drug Recognition program [TR 91, pp. 413-414]. However, Dr. Morgan also testified that on the basis of his review of the DRE protocol and his expertise, a trier of fact would be aided by expert testimony with respect to observable symptoms of drug impairment [TR 91, pp. 470-472]. In sum, on cross-examination, Dr. Morgan stated that the symptomatology of drug detection requires expert testimony and that the Johns Hopkins study (see Opinion, attached) provides valuable scientific data [TR 91, p. 406].

CONCLUSION

This Court has now heard testimony from toxicologists, medical doctors, a neurologist, a biostatistician, law enforcement specialists, and a research psychologist. The State contends that the fields of medicine and neurology may not be appropriate in an inquiry to determine the relevant scientific community with respect to Drug Recognition evaluations and methodology. However, to eliminate those fields from such a "community" would be to beg the question.

Our Supreme Court framed the issue with precision when citing the New Jersey Supreme Court in the Collins case (supra, at 197):

In the case sub judice, virtually all of the witnesses agreed that the scientific procedures utilized by trained drug recognition experts are reliable and are generally accepted in the scientific community. This Court is not persuaded that such procedures can be properly applied only by medical doctors. 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. Collins, supra, at 199.

This Court, therefore, affirms its findings as set forth in its Opinion dated November 2, 1990, and orders that Defendants' Motions to Suppress be, and they are hereby, DENIED.

DATED THIS 28TH DAY OF OCTOBER, 1991.

RITA JETT

TUCSON CITY MAGISTRATE