In light of the recent Court of Appeals opinion State v. Moore, this post is a follow-up to the 2018 blog post State v. Fincher: No Foundation Required for DRE Testimony by my colleague Shea Denning.
Rule 702 of the North Carolina Rules of Evidence governs the admissibility of expert testimony. Rule 702(a) requires the proponent to show that the expert testimony is based on sufficient facts or data (Rule 702(a)(1)), the product of reliable principles and methods (Rule 702(a)(2)), and the result of the witness reliably applying the principles and methods to the facts of the case (Rule 702(a)(3)). That said, there are circumstances where the proponent is not required to make these showings. Rule 702(a1)(2) permits a witness to give expert testimony about whether a person was impaired, and by what category of impairing substance, “notwithstanding any other provision of law” when the witness holds a current certification as a Drug Recognition Expert (DRE). In a case of first impression, the Court of Appeals held that the proponent of expert testimony by a witness properly certified as a DRE must nonetheless meet the showing required by Rule 702(a)(3) that the testimony is the result of the witness reliably applying the principles and methods to the facts of the case. Read on for more detail.
Drug Recognition Experts. Established in the 1970’s, the Drug Evaluation and Certification program was developed to train law enforcement officers in the detection and apprehension of drug-impaired drivers. Upon successful completion of the course, officers are certified as Drug Recognition Experts. In North Carolina there is a long list of prerequisites, including being certified as a chemical analyst, at least two years of law enforcement service, and experience in DWI arrests and investigation. Once certified, DRE officers can conduct a 12-step evaluation of the potentially impaired person. The evaluation takes approximately one hour to complete and includes assessing the person’s appearance, behavior, vital signs, psychophysical ability, information processing ability, coordination, and various other characteristics. The evaluation includes tests such as examining pupil dilation in three different lighting levels and physically feeling the suspect’s muscle tone in their arm. The evaluation permits a DRE officer to form an expert opinion as to whether a person (1) is impaired, (2) if so, whether their impairment is due to an injury, illness, medical complication, or drugs, and (3) if it is due to drugs, which category or combination of categories is the most likely source of the impairment.
Rule 702. In 2011, Rule 702 was amended to require expert testimony be (1) based on sufficient facts or data, (2) the product of reliable principles and methods, and (3) the result of the witness reliably applying the principles and methods to the facts of the case. These requirements were adopted from Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Five years later, the North Carolina Supreme Court confirmed that Rule 702 incorporates what is known as the Daubert standard for expert witness admissibility. State v. McGrady, 368 N.C. 880 (2016).
In its current version, Rule 702 provides for two circumstances where proponents are not required to meet the showing set out in Daubert. Rule 702(a1) states “notwithstanding any other provision of law,” (1) a person successfully trained in the Horizontal Gaze Nystagmus (HGN) test may give expert testimony on the results of an HGN test when the test is administered in accordance with their training, and (2) a person with a current certification as a DRE may give expert testimony related to whether a person is impaired by an impairing substance and the category of any impairing substance or substances.
Foundation. Over the years, case law has addressed some of the aspects surrounding what foundation, if any, is necessary for the introduction of HGN and DRE testimony. Regarding DRE testimony, the Court of Appeals upheld the admission of DRE testimony without requiring a showing that the DRE evaluation is reliable and based on sufficient facts and data. State v. Fincher, 259 N.C. App. 159 (2018).
In Fincher, the trial court admitted expert testimony by a DRE officer that the defendant was under the influence of a central nervous system depressant based on the officer’s application of the 12-step evaluation. The defendant appealed, arguing that the trial court abused its discretion when it admitted this testimony without a foundation that the 12-step evaluation was based on sufficient facts and without a foundation that the evaluation was reliable. The Court found the language in Rule 702(a1)(2) indicated the General Assembly’s desire that this type of evidence be admitted and indicated that this type of evidence “has already been determined to be reliable and based on sufficient facts and data.” As a result, the expert testimony did not have to meet the first two foundational requirements for expert witness testimony under Rule 702. The defendant did not argue, and the Court did not consider, whether the DRE officer applied the 12-step evaluation reliably to the facts of the case—the third requirement of Rule 702.
State v. Moore. The Court of Appeals considered the third requirement of Rule 702 in regard to DRE testimony in State v. Moore, ___ N.C. App. ___, (2025).
In April of 2020, Richard Moore was driving in Winston-Salem, North Carolina when he veered into oncoming traffic and collided headfirst with another vehicle. The front-seat passenger of the other vehicle died at the scene of the accident from her injuries. Moore was taken to the hospital where he received a comprehensive medical evaluation and full alcohol and drug screenings. The hospital found no head, neck, or chest injuries and no evidence of spinal trauma or cardiac distress. However, according to the attending physician, Moore “wasn’t fully with it” and could not complete the full medical review. Slip op. at 2. Over the course of four hours, Moore improved significantly and was able to stand up and move around. According to the physician, Moore’s behavior was consistent with the use of impairing substances. He was subsequently arrested on charges of felony death by vehicle, improper towing, driving while impaired, failure to maintain lane control, reckless driving, and a designated lane violation.
The State’s witnesses included (1) Dr. Iltifat Husain, who testified to the presence of the central nervous depressants benzodiazepines and opiates in Moore’s toxicology results; (2) Corporal M.L. Dime, one of the officers who responded to the collision and noted numerous indicators of the defendant’s impairment; (3) Officer E.A. Cox, who searched Moore’s Jeep and testified to finding a small plastic bag with three types of pills; (4) forensic chemist Alexis Blankenship, who testified that the pills found were amphetamines, hydrocodone, and benzodiazepines; (5) forensic toxicologist William Shroerder, who testified that Moore’s blood tested positive for opiates and amphetamines, and borderline positive for benzodiazepines; and (6) Sergeant James Mitchell, who testified as a crash reconstruction expert that Moore was speeding at the time of the collision. The State’s final witness was Sergeant Preston Stringer, a DRE officer. Sergeant Stringer offered expert testimony based on a post-investigation review of the records and hearing the testimony and evidence presented at trial. The defense objected on the basis that Sergeant Stringer’s conclusions were not based on an in-person investigation of Moore as required by the 12-step evaluation and DRE protocol.
The Court of Appeals first considered the inclusion of “notwithstanding any other provisions of law” in the introductory language to the HGN and DRE exceptions to Rule 702. The Court noted that applying this language literally would permit testimony from a DRE officer without regard to not only the requirements of Rule 702, but also all other rules of evidence, including relevancy. Further, the Court considered the legislative summary of the bill enacting the contested language, Fincher’s recognition of the reliability of DRE evaluations, and the requirement that the HGN test must be “administered in accordance” with HGN training to be admissible through the HGN exception. Taking all this together, the Court concluded “[i]t is beyond reason . . . to construe ‘notwithstanding any other provision of law’ to mean the legislature intended to allow testimony outside of the witness’ qualification or area of expertise . . . .” Slip op. at 12.
Holding. The Court held that the third requirement of Rule 702, that the witness apply the principles and methods reliably to the facts of the case, must apply to DRE officers offering expert testimony. In Moore, as Sergeant Stringer did not perform an actual DRE evaluation and based his opinion on a post-investigation review, the trial court erred and should have sustained the defendant’s objection to Stringer’s testimony. However, the Court determined that the evidence of guilt apart from the DRE testimony was overwhelming and concluded the defendant was not prejudiced by the error. As a result, the Court held the error did not warrant relief.
The holding in Moore aligns the foundational requirements for DRE testimony under Rule 702(a1)(2) with the foundational requirements for HGN testimony under Rule 702(a1)(1). Where the subsection for HGN testimony specifically provides that the expert testimony is admissible “when the test is administered in accordance with the person’s training,” Moore now similarly requires a DRE officer to administer the evaluation in accordance with their training in order for the expert testimony to be admissible.