IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR DADE COUNTY, FLORIDA

STATE OF FLORIDA

v.

Fredrick Williams,

Defendant.

Case No. 245998

Judge Maxine Cohen Lando

FILED JANUARY 19, 1995

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

THIS CAUSE came on to be heard upon the State's Motion in Limine to Determine the Admissibility of Drug Recognition Expert (DRE) Testimony and Evidence. Assistant State Attorneys Stephen K. Talpins and Michael E. Gilfarb represented the State. Assistant Public Defenders Wendy Short and Craig Trocino represented the defendant. The Court, having reviewed the evidence² argument of counsel, finds as follows:³

On December 17, 1993, Miami Shores Police Sergeant Kevin Lystad stopped the defendant at a field sobriety checkpoint. Sergeant Lystad administered a series of field sobriety tests to the defendant. The defendant failed them. On a subsequent breath test, the defendant blew a 0.070 and a 0.069. Sergeant Lystad believed that the defendant's impairment was inconsistent with his relatively low breath alcohol level. Accordingly, Sergeant Lystad and a colleague, Metro-Dade Police Sergeant Jose Zarraga asked the defendant to take a Drug Influence Evaluation. The defendant agreed. Based on the results, the officers concluded that the defendant was under the influence of alcohol, a central nervous system stimulant and cannabis. The defendant provided a urine sample that later tested positive for marijuana metabolic and cocaine. The State sought to introduce the results obtained during the Drug Influence Evaluation at trial. The defendant moved to exclude the evidence under Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). This Court finds that the tests and test results are admissible, as noted below. In reaching this determination, the Court relies principally on State v. Klawitter, No. C6-93-2092 (Minn. June 30, 1994)(unpublished opinion).

I. The Frye general acceptance standard is inapplicable to the DRE Protocol because neither the protocol nor any of its subsets, excluding the Horizontal Gaze Nystagmus (hereafter HGN), Vertical Gaze Nystagmus (hereafter VGN) and Lack of Convergence tests are "scientific" within the meaning of Frye.

The tests, signs and symptoms are well within the common understanding of the average layman. See State v. Klawitter, No. C6-93-2092 (Minn. June 30, 1994)(unpublished opinion). The protocol is a compilation of simple tests and examinations that a prudent, trained, and experienced officer could consider along with other circumstances prior to formulating an opinion that a subject is under the influence of a chemical or controlled substance. The conducting of the preliminary medical examination to determine whether the suspect needs medical attention and the taking of the pulse, temperature, and blood pressure are all well within the capabilities of a trained DRE. Id. Accordingly, the Frye standard is inapplicable.

2.Alternatively, the Frye general acceptance standard is inapplicable to these tests because they are neither new nor novel.⁴ The DRE protocol is a compilation of tried and true medical evaluations and tests. See People v. Quinn, 580 N.Y.S.2d 818 (N.Y.D.C. 1991). All of the witnesses testified that none of the subtests are new or novel. Furthermore, the studies considered by the Court demonstrate that the protocol and all of its subtests have passed from the stage of experimentation to the stage of reasonable demonstrability.

3.The Frye general acceptance standard is inapplicable to the HGN, VGN, and Lack of Convergence tests because none of them is new or novel. See State v. Klawitter No. C6-93-2029 (Minn. June 30, 1994)(unpublished opinion). The tests are simple to perform and do not require the use of any complicated equipment -- the examiner's pen or a flashlight constitutes a suitable target. Police officers use the HGN test to estimate a subject's breath or blood alcohol level by relying on Tharp's Equation. Tharp's Equation states that a subject's breath or blood alcohol level may be estimated by subtracting the angle of onset from 50. The HGN test, like the VGN and Lack of Convergence tests, are "scientific" within the meaning of Frye. However, as all of the witnesses stated and the medical literature demonstrates, none of these tests or the theories and procedures they encompass, are new, novel or emerging scientific techniques. The medical and psychological professions have acknowledged the tests' underlying theories and procedures for decades.

4.DRE testimony and evidence, Including the VGN, Romberg Balance, One Leg Stand, Finger to Nose, Walk and Turn and the Lack of Convergence tests, is admissible because it is reasonably accurate, reliable and relevant. Studies on the DRE Program in general, and the field sobriety tests in particular, prove that DRE evidence is accurate and reliable and that properly trained DREs are competent to administer the tests. See People v. Quinn, 153 Misc.2d 139, 580 N.Y.S.2d 818,826 (N.Y.D.C. 1991), Dayton Johnson et al. v. Honorable Rita Jeff (real party in interest, City of Tucson) 90056965 et seq. CV-91-0488-SA (Ariz. May 7, 1992) (unpublished opinion); People v. Hernandez. No. 92M181 (Colo. County Ct. Aug. 14, 1992) (unpublished opinion), State v. Klawitter et al No. 92065882 et seq. (Minn. County Ct. 1993) (unpublished opinion), affirmed, No. C6-93-2092 (Minn. June 30, 1994) (unpublished opinion); State v. Beam, et al., 2 FLW Supp. 444 (Fla. Dade County Ct. Aug. 22, 1994). Contra State v. Squire, No. 892099008 (Md. Cir. Ct. 1992). Furthermore, this Court finds that the HGN test is accurate and reliable.⁵ See id. More specifically, this Court finds that officers may use the HGN test and rely on Tharp's Equation to estimate a subject's breath or blood alcohol level provided the State lays a proper predicate establishing the testing officer's qualifications pursuant to Bender.⁶ Accordingly, the State my prove that a subject had an unlawful breath or blood alcohol level based on HGN test results alone, assuming the Court is satisfied as to the training and expertise of the training officer. Note, however, that if the State attempts to establish a defendant's breath or blood alcohol level under the traditional predicate, it is not entitled to the presumptions contained in Florida States Section 316.1934(s) (1994).

5.Additionally and alternatively, DRE testimony and evidence, including the HGN, VGN, Romberg Balance, One Leg Stand, Finger to Nose, Walk and Turn and the Lack of Convergence test, is admissible under the Frye general acceptance standard because the tests' underlying theories and procedures are generally accepted in the relevant scientific communities.

The DRE protocol is premised on the fact that the consumption of alcohol and/or drugs produces readily identifiable and distinguishable psychophysical signs and symptoms. DRE Protocol and the tests it incorporates, belong to the fields of traffic law enforcement, forensic toxicology, behavioral and research psychology, and to a lesser extent, the medical profession. These disciplines have relied on identical or similar processes for decades, and have found them to be accurate and reliable. The defendant's own witnesses testified that they employ all of the tests the DREs use, and for the same purpose. See Dayton Johnson et al. v. Honorable Rita Jett (real party in interest, City of Tucson) 90056965 et seq.; CV-91-0488 SA (Ariz. May 7, 1992) (unpublished opinion): People v. Hernandez, No. 92M181 (Colo. County Ct. Aug. 14, 1992) (unpublished opinion): State v. Klawitter, et al., No. 92065882 et seq. (Minn. County Ct. 1993) (unpublished opinion) affirmed No. C6-93-2092 (Minn. June 30, 1994) (unpublished opinion); State v. Beam. et al., 2 FLW Supp. 444 (Fla. Dade County Ct. Aug. 22, 1994); State v. Varela, Case No, F93-30873 (Fla. 11th Cir. October 17, 1994) (unpublished opinion approving the use of the HGN test); State v. Cruz, Case No. 269153X (Fla. Dade County Ct. October 24, 1994) (unpublished opinion approving the use of the HGN test). Contra State v. Squire No. 892099008 (Md. Cir. Ct. 1992).

All of the experts who testified at the hearing acknowledged that the tests incorporated by the DRE Protocol are standard neurological examinations. There is no doubt that the tests' underlying theories and procedures are generally accepted in the relevant scientific communities.

Accordingly, qualified DREs may rely on the DRE Protocol and the tests it incorporates to determine drug impairment, and the category of drugs causing the impairment. In addition, properly qualified and experienced officers may use the HGN test and rely on Tharp's Equation to estimate a subject's breath or alcohol level as discussed above.⁷

Drug recognition training is not designed to qualify police officers as scientist, but to train them as observers. The training is intended to refine and enhance the skill of acute observation, which is the hallmark of any good police officer, and to focus that power of observation in a particular situation.

In general, it seems misleading for the State to present DREs as "Drug Recognition Experts." That appellation assumes the conclusion. If the officer is an "Expert," then obviously, his or her expert opinion is admissible pursuant to FLA. R. Evid. 90.702 (1994). Accordingly, the State must lay a proper predicate before referring to a DRE as anything other than a DRE or Drug Recognition Evaluator or Examiner. See State v. Klawitter No. C6-93-2092 (Minn. June 30, 1994) (unpublished opinion).

The real issue is not the admissibility of the evidence, but the weight it should receive. That is a matter for the jury to decide. The Court notes, however, that it should be obvious that the mere fact that DRE testimony is admitted does not necessarily mean that such will be sufficient to support a guilty verdict or judgment. Florida Statutes Section 316.193 (1994) requires the State to prove beyond a reasonable doubt that the defendant is impaired by a chemical or controlled substance. The State concedes that neurological disorders and dysfunctions, as well as impairment by uncontrolled or unlisted chemical substances, may mimic alcohol and/or drug impairment. Accordingly, the State must introduce some direct and/or circumstantial evidence that the defendant was impaired by a controlled or chemical substance, including, but not limited to, toxicological test results, admissions, unusual odors, drug specific observations, or the presence of a drug or drugs on the defendant's person or within easy reach, in order to meet its burden.

WHEREUPON, IT IS HEREBY ORDERED AND ADJUDGED that DRE testimony and evidence, including HGN, VGN and the standardized field sobriety tests are admissible providing that the State introduces evidence that the officer who conducted the evaluation is properly trained and qualified.

Because this decision will have a significant impact upon the prosecution of DUI cases in this state, this Court hereby certifies the following questions as matters of great public importance:

1.Is the Frye general acceptance standard applicable to the DRE protocol?

2.Assuming the Frye general acceptance standard is inapplicable, is DRE testimony and evidence admissible under the relevancy standard?

3.Is DRE testimony and evidence admissible if the Frye general acceptance standard is applicable?

4.May the State prove that a subject had an unlawful breath or blood alcohol level based on HGN test results alone under Bender?

DONE AND ORDERED at Miami, Dade County, Florida, this the 19th day of January, 1995.

JUDGE MAXINE COHEN LANDO
COUNTY COURT JUDGE

Footnotes:

¹       In other jurisdictions, Drug Recognition Evaluators are also known as Drug Recognition Experts and Drug Recognition Technicians.Go back to the document

²       The State submitted approximately two thousand pages of medical literature and studies pertaining to the effects of alcohol and drugs and neurological procedures for identifying alcohol and/or drug impairment. In addition, the State presented numerous studies and articles regarding the standardized field sobriety test, including the Horizontal Gaze Nystagmus (HGN) test, and the Drug Recognition Evaluator (DRE) protocol. The State also presented the testimony of Sergeant Thomas Page, Officer in Charge of the Los Angeles Police Department DRE Unit, Dr. Marcelline Burns, one of the foremost experts in the world on alcohol and drug impairment, Dr. Zenon Zuk, a medical doctor who has witnessed thousands o evaluations, Dr. Robert Dobie, Chairman of the Department of Oto-Laryngology at the University of Texas Medical School, Dr. Leon Prockop, Chairman of the Department of Neurology at the University of South Florida Medical School, Dr. Richard Maulion, President of the Broward County Psychiatric Society, Dr. David Peed, optometrist, Metro-Dade Police Sergeant Steven Liebowitz and City of Miami Police Officer Frank Pichel.

The defendant presented the testimony of Drs. Spurgeon Cole and Ronald Nowacyer of Clemson University, Dr. Jeffery Janofsky of Johns Hopkins University School of Medicine, Dr. John Morgan of Mount Sinai Medical School, and Dr. Craig Smith of the University of Washington Medical School.Go back to the document

³       Judges Jeri B. Cohen, Jose M. Rodriguez and Scott J. Silverman also participated in this en masse proceeding. As the Public Defender correctly noted, they did not have jurisdiction to determine this particular case. Nonetheless, it should be noted that they concur with this Court's findings.Go back to the document

⁴       The Frye general acceptance standard only applies to new or novel scientific evidence. See Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1969).Go back to the document

⁵       The State provided numerous studies, medical literature and testimony demonstrating that HGN is accurate and reliable. Of local significance, the State submitted an analysis of Sergeants Liebowitz's and Officer Pichel's HGN logs. This analysis showed that the officers correctly identified alcohol and/or drug influence and impairment in a combined 97 percent of their cases. In addition, Dr. Smith, the only defense witness who ever observed an officer administer the HGN test conceded that he has seen many officers perform the test "superbly."Go back to the document

⁶       Pursuant to Bender v. State, 382 So.2d 697 (Fla. 1980), the State may establish a defendant's breath or blood alcohol level by laying a "traditional predicate" demonstrating the test's reliability, the test's meaning and the technician's qualifications. In previous cases, the State repeatedly failed to prove that the HGN test is an accurate and reliable means of identifying a specific blood or breath alcohol level. Additionally, the State was unable to demonstrate the test's meaning. However, in the instant case, the State submitted ample evidence, including numerous studies and the testimony of several witnesses, that proves that the HGN test is accurate and reliable. Even the defendant's witnesses conceded that the HGN test and Tharp's Equation are well known and reasonably accurate and reliable. Thus the State has fulfilled its obligation of demonstrating the test's reliability and meaning. This Court notes, however, and the State concedes, that the generally accepted margin of error the HGN test is .02.Go back to the document

⁷       See supra footnotes 4-6Go back to the document