State of Minnesota District Court

County of Hennepin Fourth Judicial District

State of Minnesota
City of Minneapolis.

Plaintiff

vs.

The above entitled cases were consolidated before the Honorable Lucy A. Wieland for a determination as to the admissibility of Drug Recognition Expert (DRE) testimony. On November 18, 1992, this Court held an evidentiary hearing on Defendants' motion for a Frye hearing on the admissibility of evidence regarding horizontal gaze nystagmus, vertical nystagmus, and the DRE protocol. On January 27, 1993, this Court decided that an evidentiary hearing was appropriate to determine whether horizontal gaze nystagmus, vertical nystagmus, and the Drug Recognition Expert protocol meet the Frye test. On April 19, 1993, this Court commenced a Frye hearing. This Court heard evidence from the State's witnesses from April 19, 1993 through April 22, 1993 and on April 26, 1993. It heard evidence from Defendants' witnesses from May 12, 1993 through May 14, 1993. The State was permitted to file an affidavit in rebuttal to one of Defendants' witnesses.

Karen S. Herland, Esq., appeared on behalf of Plaintiff.

Ann Remington, Esq., and Julia Inz, Esq., appeared on behalf of Defendants.

Upon all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED,

1. That testimony concerning the Drug Recognition Expert protocol, including the HGN and vertical nystagmus tests and the conclusion of the Drug Recognition Expert is admissible.

2. That the following memorandum is hereby made an official part of this Order.

IT IS SO ORDERED

Dated: September 7, 1993.

The above-entitled cases have been consolidated for determination of whether Drug Recognition Expert (DRE) testimony is admissible in criminal cases. The parties agreed that Defendant Klawitter's case would serve as the test case for this determination.

On August 23, 1992, at approximately 1:57 a.m., Officer Sporny of the Minneapolis Police Department was on routine patrol in Minneapolis. Officer Sporny observed Defendant Klawitter driving a car northbound on Central. Officer Sporny saw Klawitter drive his car over the center line four times and observed Klawitter's car weaving back and forth, coming within inches of the concrete median. Klawitter was also driving at erratic speeds.

When Officer Sporny stopped Klawitter, he noticed that Klawitter had bloodshot and watery eyes. Klawitter's balance was unsteady and he admitted to smoking marijuana. Klawitter passed a preliminary breath test. Because Officer Sporny suspected that Klawitter was under the influence of a substance other than alcohol, he arrested Klawitter for driving under the influence.

Klawitter was taken to the police station where Officer Sporny read Klawitter the implied consent advisory. Klawitter agreed to take a breath test and passed with an alcohol concentration of .00 alcohol at 3:28 a.m. Officer Sporny reread the implied consent advisory

and requested a urine sample. Klawitter agreed but subsequently stated that he was unable to provide a sample.

Minnesota State Patrol Trooper Kevin Daly, a certified DRE, met with Officer Sporny at Sporny's request. Trooper Daly received specialized training by successfully passing DRE training in 1991. Daly also successfully completed DRE instructor school in 1992. Trooper Daly also successfully completed training in the administration and interpretation of standardized field sobriety tests (HGN, one leg stand, and walk and turn) and is a field sobriety test instructor.

Trooper Daly examined Klawitter and documented his observations on a Minnesota Drug Influence Evaluation Form. Two other DREs were present during the examination. Trooper Daly administered the DRE test according to DRE protocol. Based on the evidence collected by him and the observations of the arresting officer, Trooper Daly formed the opinion that Klawitter was impaired by a drug during the period of time when Trooper Daly observed him (from 3:55 a.m. to 4:25 a.m.). Trooper Daly also formed the opinion that his impairment was caused by the ingestion of cannabis.

Klawitter is charged with driving under the influence of a controlled substance pursuant to Minn. Stat §169.121, subd. 1(b) and careless driving pursuant to Minn. Stat. §169.13, subd. 2.

The State has the burden of proving beyond a reasonable doubt that Klawitter was driving, operating, or in physical control of a motor vehicle while he was under the influence of a controlled substance. Minn. Stat. §169.121, subd. 1(b).

At Klawitter's trial, the State will seek to admit the testimony of Trooper Daly regarding his observations during his examination of Klawitter and his opinion that Klawitter was under the influence of cannabis.

The purpose of the DRE program is to identify people who are under the influence of drugs so that they can be removed from roadways. The DRE program has its roots in Los Angeles in the early or mid-1970's. The program began as a refinement of the standardized field sobriety tests for alcohol. Police officers in Los Angeles had noticed an increasing number of individuals who were under the influence of drugs and experienced related traffic problems. Police officers culled their own observations and added information obtained from outside sources in an attempt to train police officers to recognize signs of drug impairment.

In the early 1980's, National Highway Traffic Safety Administration (NHTSA) became involved in funding and monitoring the DRE program in Los Angeles and in sponsoring studies. NHTSA helped to refine the DRE program.

The 12-step DRE protocol currently used by DREs was primarily developed by the Los Angeles Police Department (LAPD) with the assistance of physicians, nurses, toxicologists, psychiatrists, and health care professionals.

The International Association of Chiefs of Police (IACP) establishes minimum standards and monitors the certification of DREs. The IACP receives federal funds to coordinate the national DRE program.

Officers who are trained as DREs are taught to administer a 12-step protocol. DREs are taught to evaluate the information obtained as a result of the protocol to determine whether a suspect is impaired by a controlled substance, and if so, which of seven categories of substances the drug falls into.

The 12-step protocol which DREs are taught is as follows:

DREs are taught to form their opinions only after they have completed a full evaluation. DREs may not alter their opinions based on the results of toxicological reports, but they are encouraged to review the reports as a training tool so they can find out where they might have erred.

In order to be certified as a DRE, an officer must participate in at least twelve evaluations (of these, he must be the primary evaluator on six evaluations), correctly identify people under the influence of at least three drug categories, nine samples of blood or urine must be obtained from suspects, and, of these, 75% of the officer's opinions must be corroborated by a toxicological test. Since the officer who performs an evaluation and the other two officers who observe the evaluation all report the evaluation on their logs, the officer's statistics are affected by cases in which he was not the primary evaluator. In addition to these requirements, two DRE instructors must observe the DRE's evaluations and must recommended [sic] certification. DREs are required to maintain a rolling log of all evaluations they participate in, whether they acted as primary evaluator, scribe, or observer.

In this case, Trooper Daly testified that the arresting officer stopped Klawitter for erratic driving conduct. He learned from the arresting officer that Klawitter had bloodshot eyes and problems with balance, and Klawitter admitted to having smoked marijuana. Klawitter's breath test indicated that there was no alcohol in his blood. Trooper Daly testified that he read Klawitter his Miranda rights and then questioned him. Klawitter agreed to speak to Trooper Daly and answered a series of questions concerning what he had eaten and had been drinking that day, what time it was, when he had last slept, how long he slept, whether he was sick or injured, whether he was diabetic or epileptic, if he took insulin, if he had physical defects, whether he was under the care of a doctor, and whether he had been taking any medications or drugs. Klawitter indicated that he had no medical problems and did not wear corrective lenses and admitted that he had been using marijuana. Trooper Daly observed that Klawitter was cooperative and relaxed and that his speech was very slow. Klawitter's coordination was fair to poor.

Trooper Daly observed that Klawitter's eyes appeared to be very bloodshot and watery and that there was a red haze around each eye. He also noticed that his eyelids were very droopy. Trooper Daly gave Klawitter an eye examination and noted that there was no HGN or vertical nystagmus in Klawitter's eyes. Trooper Daly also noted that Klawitter's left eye was unable to converge. Klawitter's first pulse was 94 at 3:57 a.m.

Trooper Daly testified that, when Klawitter performed the Romberg [sic] Balance Test, Klawitter swayed and had observable eyelid tremors. He also estimated the passage of time incorrectly. When he performed the walk and turn test, Klawitter fell over the line once and had leg tremors, raised his arms repeatedly, and took the wrong number of steps. When he performed the one leg stand test, he swayed, used his arms for balance, had body tremors, and had to be reminded numerous times to watch his foot. When he performed the finger to nose test, Klawitter totally missed the tip of his nose and he had eyelid tremors.

Trooper Daly testified that Klawitter's blood pressure was 130 over 80, that his temperature was 98.7, and that his second pulse was 104 at 4:10 a.m. His pupils were dilated above the normal range in near total darkness and in indirect light and rebound dilation was observed. Klawitter's nasal areas were clear but he had heat bumps in the back of his tongue. Klawitter had normal muscle tone and no injection sites were observed. His third pulse was 100 at 5:25 a.m. Klawitter admitted that he had been using marijuana and had smoked two joints at 9:00 a.m. the prior morning. He said he was in a car in Minneapolis when he used the drugs.

Trooper Daly testified that based on his evaluation, Klawitter was under the influence of cannabis when he observed him.

Sergeant Page worked for a public health department in Michigan and has a bachelor degree in industrial psychology. Sergeant Page has been working for the LAPD for the last twelve years; for the last six years he has worked full time on the LAPD's DRE program. He is currently in charge of the LAPD's DRE program. Sergeant Page is a certified DRE Instructor and Standardized Field Sobriety Instructor and has trained DREs in Minnesota (including Trooper Daly) by teaching the NHTSA approved curriculum. He has reviewed the testimony of Trooper Daly and the police reports regarding Klawitter's case and agrees with Daly's conclusions.

Sergeant Page testified that the ability to operate a motor vehicle requires clear thinking, mental functioning, processing of information, seeing, hearing, and a motor response. He also testified that the ability to divide one's attention to different tasks is important in operating a motor vehicle. He stated that impairment by drugs interferes with mental abilities and the ability to divide one's attention, and impairs reaction time and motor skills.

Sergeant Page testified that DREs collect and record data by using the 12-step protocol and comparing their observations to the symptomatology matrix. The DREs then form opinions by relying on the information in the matrix and their own personal knowledge and experiences.

Sergeant Page testified that he communicates with medical doctors, nurses, health care professionals, toxicologists and psychiatrists. He testified that the DRE protocol is a reliable tool. He stated that, in his experience, medical professionals who have become knowledgeable about the DRE protocol do not object to it.

B. DR. MARCELLINE BURNS.

Dr. Burns is a research psychologist with the Southern California Research Institute and has a Ph.D. in psychology. Dr Burns has researched, published articles, and lectured about the effects of drugs and alcohol on driving performance. She has conducted research projects for NHTSA on alcohol and field sobriety tests.

Dr. Burns testified that she and other medical professionals were consulted in the development of the DRE program. Dr. Burns has been involved with the program as a speaker and advisor. Dr. Burns testified that she had reviewed the Johns Hopkins Study (Exhibit 26) which found that in 91.7% of those cases where a DRE indicated that an individual was under the influence of a drug, the DRE correctly identified the drug category. In 7%, the DREs correctly found that the individual was under the influence, but chose the wrong category. In 1.3%, the DREs found the individual was under the influence when there was no drug.

Dr. Burns testified that she participated in the Los Angeles study (Exhibit 20) which found that when DREs indicated that an individual was impaired by drugs, drugs were present 97% of the time. When DREs predicted a specific drug category, 79% of the time that drug was present. Dr. Burns testified that the Johns Hopkins Study and the Los Angeles Study were published by NHTSA.

The State submitted an affidavit of Dr. Burns to rebut the testimony of Dr. Janofsky. Dr. Burns stated that papers concerning the DRE program appear in traffic safety, alcohol, and drug journals. She stated that there have been many published papers concerning the effects of drugs on driving performance.

C. DR. DAVID PEED.

Dr. Peed, a doctor of optometry, testified that he is familiar with nystagmus from his education, training, and experience. Dr. Peed testified that he learned that police were administering eye tests to identify drunk drivers and contacted his local state patrol. Dr. Peed attended a field sobriety school and a DRE school.

Dr. Peed testified as to the way the human eye works and the brain's role in vision. He stated that the brain controls eye movements through five distinct systems which are designed to keep light focused and to maintain good vision. He testified that nystagmus is a jerking or fluttering of the eyes which is visible to the naked eye. Nystagmus is a breakdown in the systems which control eye movement. He stated that four percent of the population have nystagmus under normal conditions. In addition, nystagmus can be induced in a normal individual in a variety of ways. Nystagmus may also be present due to sleep deprivation.

Dr. Peed testified that some drugs can induce nystagmus through depression of the central nervous system. He stated that, the more impaired an individual is, the more limited the eye movement control the individual has, and the more limited the individual's field of vision becomes.

HGN is the jerking of the eyes as they attempt to pursue an object moving horizontally. He stated that HGN is a reliable indicator of impairment by alcohol and other central nervous system (CNS) depressants, PCP, and inhalants.

Vertical nystagmus is the jerking of the eyes as they try to focus at the extremes of vertical vision. Dr. Peed testified that vertical nystagmus is usually apparent in individuals who have ingested higher levels of alcohol and other CNS depressants, PCP and inhalants.

Dr. Peed testified that police officers can administer and observe nystagmus even if they do not understand the medical reasons for it. He stated that pupil size, hippus, lack of convergence, the appearance of the eyes, eye tracking ability, and the eyes' reaction to light are relevant to detecting drug impairment.

D. KAREN SPRATTLER.

Ms. Sprattler is a Traffic Safety Coordinator with the Minnesota Department of Safety and serves as the Minnesota DRE Coordinator. She testified that she participated in the implementation of the DRE program in Minnesota. NHTSA approved Minnesota as a site for a DRE program. NHTSA set up the training schedule for DREs and provided training materials. She stated that DRE training in Minnesota has met NHTSA's standards.

E. DR. ZENON ZUK.

Dr. Zuk is a medical doctor. From 1985 to 1991, he was employed by the City of Los Angeles and worked at a jail treatment center in Los Angeles. Dr. Zuk attended DRE school in Los Angeles in 1989.

Dr. Zuk testified that there are many correlations between the methods physicians use to diagnose medical conditions and the DRE's 12-step program. He stated that the Drug Evaluation Form used by DREs (Exhibit 2) is a good tool for documenting observations. He stated that the information provided in the symptomatology matrix (Exhibit 4) is generally accepted in the medical community, but he believes that lack of convergence and hippus are not helpful signs or symptoms. He stated that one sign or symptom is insufficient to form an opinion regarding drug impairment and that such an opinion should be based on the overall circumstances. He testified that the symptoms noted in the matrix are relevant to identifying drug impairment because they reflect an abnormal neurophysiology or neurobiochemistry. Dr. Zuk testified that eye exams are particularly important because the eyes are made of brain material so they easily and rapidly reflect changes in the brain.

Dr. Zuk testified that the method DREs use in their evaluations is similar to the method he uses, and that the DRE's approach is a good one. He believes that DRE training is sufficient to teach police officers to administer a drug evaluation. He also believes that the DRE protocol is a trustworthy and reliable method for evaluating drug impairment. He testified that HGN is generally accepted in the medical community as a sign of the use of alcohol, other CNS depressants, PCP, and inhalants. He stated that drug impairment evaluations such as those done by DREs do not have to be done by a doctor. He feels that DREs do not have to understand the reasons why drugs cause the various symptoms in order to evaluate drug impairment.

F. TROOPER KEVIN DALY.

Trooper Daly is a Minnesota State Trooper and certified DRE. He thinks that HGN and vertical nystagmus are reliable indicators of impairment by alcohol, other CNS depressants, PCP, and inhalants.

G. LIEUTENANT MARK PETERSON.

Lieutenant Peterson is the agency DRE coordinator for the Minnesota State Patrol. He oversees the state patrol's DRE program.

H. EUGENE ADLER.

Mr. Adler is a forensic toxicologist with the Arizona Department of Public Safety Crime Lab. He attended DRE school in Los Angeles in 1988. He subsequently assisted in the implementation of Arizona's DRE program. Mr. Adler testified that analysis of a blood or urine specimen can reveal that an individual has used a particular drug, but that it cannot be used to determine whether the individual was impaired by the drug since there is no numerical correlation for drug impairment (as there is for alcohol impairment). He also stated that labs cannot always detect drugs in blood or urine even when drugs have been ingested. He said cocaine is difficult to detect in urine or blood samples because it has a short half-life.

Mr. Adler also testified that drug impairment diminishes a person's mental and physical abilities. He stated that drug impairment can be observed and detected because drugs produce signs and symptoms. He testified that the symptomatology matrix (Exhibit 4) is an accurate summary of the signs of drug use as used in the field of toxicology. He stated that these are possible symptoms and might not always be present.

Mr. Adler testified that the DRE protocol is based on signs and symptoms already known and accepted in the scientific community. He stated that the protocol is a reliable approach to determining drug impairment.

He stated that the State of Arizona uses the NHTSA curriculum. Mr. Adler testified that he has compared DRE evaluations in Arizona to lab results in cases in which a specimen was collected and has published his findings in law enforcement publications. (See Exhibit 37). He testified that Arizona DREs correctly identified at least one drug category in 86.5% of the cases. He stated that when DREs indicated a specific drug category, that drug was found in a lab test 75% of the time.

Mr. Adler testified that the scientific literature on the DRE program is growing, that DRE has been well received, and that the DRE program has not been repudiated.

I. DR. S. G. JEJURIKAR.

Dr. Jejurikar is a forensic toxicologist with the Minnesota Bureau of Criminal Apprehension. Dr. Jejurikar testified that the presence of a drug in an individual's blood or urine cannot prove impairment by the drug and that a person could be impaired by a drug which is not found in his blood or urine.

He testified that he oversaw the preparation of the Minnesota corroborative Study (Exhibit 40) which included all DRE cases where a DRE formed an opinion and a sample was obtained from August, 1991 through March, 1993. He stated that the Minnesota data shows that when a DRE identified an individual as impaired by a specific drug category, the drug was found in the individual's blood or urine 79.5% of the time. He also stated that when a DRE predicted at least one drug category, at least one drug category was found in the individual's blood or urine 88.7% of the time.

J. DR. MILES BELGRADE

Dr. Belgrade is a neurologist at the Hennepin County Medical Center in Minneapolis, Minnesota.

Dr. Belgrade testified that neurologists use some, but not all, of the DRE protocol's components. He stated that he has not seen the DRE protocol mentioned in publications and that it has not been presented or accepted in the neurological community.

Dr. Belgrade testified that HGN is used as part of a neurological exam but that it is difficult to administer and interpret. He testified that the training DRE's receive in performing HGN exams is not sufficient to lead to a reliable interpretation. He testified that lack of convergence is not particularly meaningful.

Dr. Belgrade testified that all of the symptoms listed in the symptomatology matrix might be seen in a person who has ingested the drugs listed in each category. He stated that he believes it is possible to recognize impairment by drugs, but that it is not possible to determine which specific drug is impairing a person. Dr. Belgrade testified that the most important indicators of drug impairment are the individual's mental behavior (irritability, level of confusion, and level of consciousness), speech, and coordination. However, he stated that he believes that police officers can form a reliable opinion about whether a driver is impaired by a controlled substance.

K. DR. JOHN MORGAN

Dr. Morgan is a clinical pharmacologist at the City University of New York Medical School. Dr. Morgan testified that there has been no discussion of the DRE protocol in the medical community. He stated that the DRE protocol is highly oversimplified and does not provide reliable information. He stated that the Johns Hopkins, Los Angeles, and Arizona studies do not show that the DRE protocol is reliable.

Dr. Morgan stated that the symptomatology matrix is highly oversimplified. He stated that it is very difficult to determine whether an individual is under the influence of a drug.

L. DR. JEFFREY JANOFSKY.

Dr. Janofsky is a forensic psychiatrist at Johns Hopkins University School of Medicine. Dr. Janofsky testified about the proper way to conduct studies and explained that he does not think the studies conducted on the DRE program are adequate to establish that the DRE protocol is valid. In his opinion, the DRE protocol is not reliable or valid. Dr. Janofsky also noted that the DRE protocol has not been accepted in medical literature.

M. DR. PAUL PENTEL.

Dr. Pentel is a clinical toxicologist at the Hennepin County Medical Center. He testified that the DRE protocol has not been accepted in medical literature. Dr. Pentel stated that the symptomatology matrix is oversimplified because some people who ingest the drugs do not have the effects listed in the matrix. He stated that, although the protocol contains many components used by doctors, it is insufficient to allow a police officer to make a decision. He does not believe that a police officer can rely on his observations to reach a conclusion about impairment in the absence of a lab test, but he stated that blood and urine tests have little value as corroboration of drug impairment.

Defendants assert that the DRE protocol constitutes a novel scientific test and thus the test promulgated by the District of Columbia Court of Appeals in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) applies. Defendants also assert that the State has failed to meet its burden of showing that experts in the field generally agree that the protocol leads to a conclusion that is sufficiently reliable and trustworthy to be admissible in a criminal case.

On November 18, 1992, this Court held an evidentiary hearing on Defendants' motion for Frye hearing. At that time, this Court heard evidence from Trooper Daly and Robert Meyer, an employee of the Bureau of Criminal Apprehension, who testified that he was aware of a dispute in the medical and scientific communities concerning the reliability of HGN and vertical nystagmus.

On January 27, 1993, this Court granted Defendants' request for a Frye hearing, holding that, based on the evidence presented, an evidentiary hearing was appropriate to determine whether HGN, vertical nystagmus, and the DRE protocol meet the Frye test.

Under the common law, the traditional test for determining the admissibility of the results of mechanical or scientific testing in criminal proceedings has been the test promulgated in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). The Frye Court noted:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

Id. at 1014.

The Minnesota Supreme Court has consistently cited the Frye test in evaluating emerging scientific techniques. State v. Jobe, 486 N.W.2d 407, 419 (Minn. 1992) (DNA evidence); State v. Fenney, 448 N.W.2d 54,57 (Minn. 1989) (electrophoresis); State v. Schwartz, 447 N.W.2d 422, 424 (Minn. 1989) (DNA testing); State v. Anderson, 379 N.W.2d 70, 79 (Minn.1985) (graphological personality assessment); State v. Mack, 292 N.W.2d 764, 769-772 (Minn.1980) (hypnotically-induced memory); State v. Kolander, 52 N.W.2d 458 (Minn.1952) (lie detector test); State v. Kraushaar, 459 N.W.2d 346, 349-50 (expert's interpretation of child victim's drawings). Minnesota appellate courts have held that evidence which is not analogous to a scientific test is not subject to Frye analysis. State v. Moore, 458 N.W.2d 90, 97 (Minn. 1990) (holding that because blood spatter evidence is based on well settled fields of chemistry and physics, and because the defendant did not request a Frye hearing or refute the state's testimony, the court could take judicial notice of its reliability); State v. Jensen, 482 N.W.2d 238,239 (Minn.Ct.App.), rev. denied, (Minn.1992) (principles underlying retrograde extrapolation not novel); State v. Oslund, 469 N.W.2d 489, 494-95 (Minn.Ct.App. 1991) (illustrative use of anatomically correct dolls and projective story-telling cards not subject to Frye but if the techniques are used as basis for expert opinion testimony may need to satisfy Frye standards).

In State v. Schwartz, the Minnesota Supreme Court specifically addressed the argument that the Frye standard should be rejected and novel scientific evidence should be treated like other expert opinion evidence. The supreme court declined to change the standard, holding that Frye standard "facilitates more objective and uniform rulings." Schwartz, 447 N.W.2d at 424. In order to satisfy the Frye standard, the evidence must generally be accepted as reliable. Id.

B. HORIZONTAL GAZE NYSTAGMUS AND VERTICAL NYSTAGMUS.

In this case, the specific issue regarding HGN and vertical nystagmus is whether experts in the field agree that they are scientifically reliable indicators of impairment by alcohol, CNS depressants, PCP, or inhalants, so that their use in the DRE protocol is justified.

The HGN test is currently used by Minnesota police officers as part of their standardized field sobriety tests for evaluating alcohol impairment. Although these tests are not new or novel, no Minnesota appellate court has ever ruled on their use. These tests were developed for use by members of the medical community in evaluating neurological and eye conditions.

The majority of experts who testified about HGN and vertical nystagmus stated that these tests are reliable indicators of impairment by alcohol, CNS depressants, PCP, or inhalants. Dr. Peed, an optometrist, and Dr. Zuk, a medical doctor, both gave credible and persuasive testimony establishing the generally accepted reliability of these tests as indicators of impairment. They testified that HGN will frequently be present when an individual is impaired by these substances, and vertical nystagmus may be present at greater degrees of impairment. A small percentage of individuals have one of these conditions normally. Some impaired individuals do not demonstrate these conditions. Nevertheless, the tests are generally reliable as indicators of impairment by these substances.

Controversy arises when these tests are used as the sole basis for a conclusion of impairment, or when these tests are used for additional purposes, such as determining a person's blood alcohol level, or when efforts are made to correlate the angle of onset of HGN with a degree of impairment. In this case, however, DREs merely use HGN and vertical nystagmus as possible indicators of impairment by certain controlled substances. In this respect, it is similar to the use of the HGN test by police officers as one of the standardized field sobriety tests in alcohol assessments.

This court finds that the State has met its burden of showing that these tests are generally accepted as reliable indicators of impairment by these substances, thereby satisfying the Frye standard. Therefore, this Court finds that the use of the HGN and vertical nystagmus tests as one of the steps in the DRE protocol is justified.

This Court initially concluded that a Frye hearing was necessary to determine whether experts in the field generally agree that the DRE protocol leads to a conclusion that is sufficiently reliable and trustworthy to be admissible in a criminal case. After hearing a substantial amount of additional testimony on the issue, this Court now believes that the DRE protocol is not a new or novel scientific technique or procedure and thus the Frye standard does not apply. This conclusion is based on a close analysis of the twelve components of the DRE protocol.

The first three steps of the protocol, with the exception of the pulse, include a review of the results of the breath test, an interview of the arresting officer, questioning the suspect, and evaluating his appearance. The fifth step consists of the divided attention tests which are variations on the traditional field sobriety tests. Steps nine and ten involve looking for injection sites and questioning the suspect about drug use. Steps eleven and twelve include reaching an opinion and attempting to obtain a sample for a toxicological screen. None of these components are new or novel scientific procedures or techniques. They are essentially the same components that are used by police officers in evaluations for alcohol impairment.

In step four, the DRE does an eye examination, where the suspect is tested for HGN, vertical nystagmus, and convergence. This Court has concluded that the State has met its burden of showing that HGN and vertical nystagmus are reliable indicators of impairment by alcohol and certain controlled substances, and that their use in the protocol is justified.

Step six, the vital signs, step seven, the dark room examination of the eyes, and step eight, the examination of muscle tone, are performed to assist the DRE in evaluating whether drugs are present, and if so, what category of drug. These are all examinations which are routinely performed by medical personnel for a variety of reasons. They are not difficult to perform. Although these tests have not been traditionally performed by police officers, the medical witnesses testified that they can be competently performed by a police officer.

In summary, 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.

There is also nothing new or controversial about allowing a police officer to give an opinion that an individual is impaired. Even the defense witnesses conceded that the key indicators of drug impairment are mental behavior, speech, and coordination, all of which are observable signs or symptoms that police officers can rely on in forming a reliable opinion on impairment. The DRE protocol is not a new scientific technique, it is merely a systematic method which allows police officers to compile and analyze information obtained from their own observations. This is nothing new since police officers have traditionally been allowed to rely on their observations, training, and experience to form opinions regarding alcohol intoxication. This Court finds that, since the DRE protocol is not a novel scientific technique, there is no requirement that experts in the "field" generally agree that the evidence is reliable.¹

The proper analysis, in this court's view, is one focusing on the admissibility requirements for expert testimony under the Minnesota Rules of Evidence.

Rule 702 of the Minnesota Rules of Evidence is identical to the federal rule. Rule 702 provides:

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.

Minn. R. Evid, 702. The Committee Comment to Rule 702 provides:

The admissibility of expert opinion has traditionally rested in the discretion of the trial court. This discretion is primarily exercised in two areas:

1. determining if an opinion can assist the trier of fact in formulating a correct resolution of the questions raised; and

2. deciding if the witness is sufficiently qualified as an expert in a given subject area to justify testimony in the form of an opinion.

There will be no change in existing practice in this regard.

The rule is not limited to scientific, or technical areas, but is phrased broadly to include all areas of specialized knowledge. If an opinion could assist the trier of fact it should be admitted subject to proper qualification of the witness. The qualifications of the expert need not stem from formal training, and may include any knowledge, skill, or experience that would provide the background necessary for a meaningful opinion on the subject. The rule also contemplates expert testimony in the form of lecture or explanation. The expert may educate the jury so the jurors can draw their own inference or conclusion from the evidence presented.

The new United States Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, 61 U.S.L.W. 4805 (1993), holding that the Frye standard no longer applies in federal cases further provides some helpful analysis.

In Daubert v. Merrell Dow Pharmaceuticals, the issue was whether expert evidence concerning whether a prescription drug caused birth defects could be admitted in a federal civil trial even though no medical study had found the drug capable of causing birth defects. Specifically, the Supreme Court was asked to decide what the proper standard is for the admission of expert testimony in federal cases.

The Supreme Court held that the Frye test was superseded by the adoption of the Federal Rules of Evidence. The Court noted that Rule 702, governing expert testimony, does not require that a test be generally accepted in order to be admissible and that such a requirement should not be applied in federal trials. Id. at 4807-08.

In Daubert, the Supreme Court noted that, by displacing the Frye test, the Court was not removing all limits on the admissibility of scientific evidence. The Court stated that, as always, a trial judge must still ensure that all scientific evidence is relevant and reliable. Id. at 4808. In addition, the evidence must assist the trier of fact to determine an issue at trial. Id. The Court stated that the following factors may be helpful in deciding whether scientific evidence is admissible: whether the scientific theory can be (and has been) tested; whether the theory has been subjected to peer review and publication; the known or potential rate of error; and whether the theory has achieved general acceptance. Id. at 4809. This analysis is flexible thus no particular factor is decisive. Id.

In Daubert, the Court also noted that there are checks which remain on the use of expert evidence, including vigorous cross-examination, presentation of contrary evidence, jury instructions on the burden of proof, and the Court's option to direct a verdict if the evidence is insufficient. Id. at 4809-10.

Applying this analysis under Rule 702, the issue is whether the DRE protocol is capable of yielding reasonably reliable results.

In the Johns Hopkins Study (Exhibit 26), DREs from the LAPD performed modified DRE evaluations on volunteers who had been administered with various dosages of certain drugs. The study revealed that in 91.7% of the cases in which a DRE indicated that an individual was under the influence of a drug, the DRE correctly identified the drug category.

In the Los Angeles Study (Exhibit 20), DREs evaluated suspects who were arrested for driving under the influence and were suspected of being under the influence of a drug or a combination of a drug and alcohol in Los Angeles during the summer of 1985. The study revealed that when a DRE formed the opinion that an individual was impaired by drugs, drugs were present 97% of the time. When a DRE formed the opinion that a suspect was under the influence of a specific drug, 79% of the time that drug was present.

In the Arizona study (Exhibit 38), Eugene Adler collected all of the 526 DRE evaluations performed in Arizona in which a DRE reached a conclusion and collected a specimen. He testified that Arizona DREs correctly identified at least one drug category in 86.5% of the cases. He stated that when DREs indicated a specific drug category, that drug was found in a lab test 75% of the time.

In the Minnesota corroborative Study (Exhibit 40), Dr. Jejurikar and his assistants collected all of the 76 DRE evaluations performed in Minnesota between August, 1991 and March, 1993 in which a DRE reached an opinion and obtained a urine sample. Dr. Jejurikar testified that the Minnesota data reveals that when a DRE identified an individual as impaired by a specific drug category, the drug was found in the individual's blood or urine 79.5% of the time. He also stated that when a DRE predicted at least one drug category, at least one drug was found in the individual's blood or urine 99.7% of the time.

Although these four studies were undertaken in different manners to accomplish different goals, and although each of these studies may be somewhat flawed or statistically imperfect, the results of the studies are strikingly similar. The similarity of these results, as well as the results themselves indicate that the DRE protocol is reasonably reliable in determining whether an individual is impaired by drugs.

D. CONCLUSION.

This court finds that the DRE protocol is sufficiently trustworthy and reliable to be admitted in evidence. The credible evidence shows that there are readily observable signs and symptoms of drug intoxication. Although experts in various communities may disagree as to the helpfulness of some of the information contained in the symptomatology matrix, and although some may feel that the matrix is oversimplified, the matrix is an adequate tool for the purposes of the DRE evaluation. DREs are taught not to rely on one particular sign or symptom in determining whether an individual is under the influence of a drug. Instead, DREs rely on all of their observations, evaluate all of the information obtained, and base their opinions on the overall circumstances. The symptoms listed in the matrix represent all of the possible symptoms which might be associated with the particular drug categories. If the DRE has made observations which lead him to believe that the individual is impaired, the symptoms listed in the matrix are relevant to the DRE's identification of the particular drug category causing the impairment.

The credible evidence demonstrates that the standardized 12-step protocol is a useful and reliable method to collect and record the officer's observations. The protocol provides a trustworthy and reliable method for evaluating the information collected to determine whether the individual is impaired by drugs.

The State has presented evidence that Trooper Daly has received adequate training and has acquired knowledge, skill, and experience which provide a sufficient background for him to give an opinion as to whether an individual was intoxicated by a drug. The DRE training provides the officer with a reliable method to evaluate drug impairment.

This Court also finds that the DRE's opinion regarding whether an individual is under the influence of a drug is relevant. The signs and symptoms of drug intoxication are outside the realm of common knowledge. Thus, the DRE's testimony will assist the jury in determining whether a defendant was under the influence of a controlled substance.

In reaching these conclusions, this Court is mindful of the practical realities of law enforcement in enforcing the laws against driving under the influence of a controlled substance. Unlike cases involving possible alcohol impairment, there is no quantitative chemical test that provides definitive evidence that an individual is impaired by a controlled substance. While the presence of a drug in the blood or urine may corroborate an officers' opinion or the absence of a drug may undermine the opinion, neither result is definitive. Therefore, the only direct evidence the State has in drug impaired prosecutions is the opinion of the evaluating officers.

Furthermore, there are some inherent limitations in these prosecutions as evidenced by the relatively small number of these cases. A DRE is not called in unless an arresting officer observes some obvious signs of impairment and the breath test result is too low to explain the observed signs and symptoms.

Secondly, each DRE keeps track of every examination he performs, his conclusions, and the toxicology results. Therefore, for each DRE, it is possible to compute an "error rate" which, although not a statistically correct error rate, does serve several purposes. The DRE's "error rate" makes each DRE extremely careful in reaching his conclusions so as to avoid false positives.² Secondly, this record keeping provides the defense with exceptionally fertile ground to plow on cross-examination. In the same vein, all of the studies done on the reliability of the DREs' opinions show a reliability rate of 75% to 90%, depending on the drug. While these statistics suggest that the protocol leads to a sufficiently reliable conclusion to be admissible in a criminal trial, they may be more helpful to the defense than to the prosecution in an actual trial situation where the standard is beyond a reasonable doubt.

In conclusion, while this Court is concerned that a defendant may be prejudiced by the labeling of the DRE as an "expert," any such prejudice does not outweigh the probative value of the evidence. In addition, the adversarial system of justice provides adequate safeguards since the defense will cross-examine the DRE extensively and may submit evidence which refutes the DRE's claim, and the trial court should instruct the jury on the proper use of the evidence.

In conclusion, this Court finds that the DRE protocol is not a new or novel scientific technique, that the Frye standard of general acceptance in the scientific community therefore does not apply, and that the protocol meets the Minnesota Rules of Evidence on the admissibility of expert testimony.

L.A.W.

Footnotes:

¹       The obvious dilemma presented by the DRE protocol is determining what the applicable "field" is. Clearly the protocol was developed by law enforcement for use by law enforcement. Although it draws from knowledge and procedures utilized in the medical community, the medical community does not use the DRE protocol, is very unlikely to ever use the protocol, and has no interest in assessing the validity or reliability of the protocol. (Because of the medical community's apathy to law enforcement's use of the protocol, it is doubtful whether the validity or reliability of the protocol would ever be addressed in medical literature.) It is certainly true that the DRE protocol is generally accepted as reliable and accurate in the law enforcement field, but that acceptance has at least the appearance of being self serving. By the same token, the members of the medical community who testified for the defense and raised their concerns about law enforcement officers using the protocol appeared to be more concerned with discouraging non-medical personnel from encroaching on their area of expertise than with any meaningful problems with the protocol or the way it is utilized by DREs.Go back to the document

²       As an example, Trooper Daly's rolling log shows a relatively high number of cases where he concluded that the suspect was not impaired.Go back to the document