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):

"the credibility...depends upon the reliability of the scientific procedure used. If the procedure is not capable of yielding reasonably reliable results, then its probative value may be outweighed by the risks entailed in its use in a criminal trial..."

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