State v. Fincher: No Foundation Required for DRE Testimony

The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2).

Facts. The defendant in Fincher was having a really terrible day (seriously, read the opinion) before she rear-ended a car in a restaurant drive-thru. The officers who responded to the accident noticed that Fincher’s eyes were red and glassy and her speech was slurred. She told them that she was prescribed several different types of medication and had taken Xanax the night before. One of the officers administered an HGN test and observed six of six clues. Fincher blew into a portable breath test, which registered a 0.00. Because Fincher was wearing a boot on one leg, the officers did not administer additional field sobriety tests before arresting her for impaired driving. Once at the jail, Fincher consented to a blood draw.

An officer certified as a Drug Recognition Expert then evaluated Fincher, using the 12-step evaluation process he had been trained to perform. The DRE protocol is designed to determine whether a person is impaired by drugs, and, if so, what category of drug (central nervous system depressant, central nervous system stimulant, hallucinogen, dissociative anesthetic, narcotic analgesic, inhalant, or cannabis) caused the impairment. The DRE officer who examined Fincher concluded that she was impaired by a central nervous system (CNS) depressant.

At trial. Fincher was convicted of DWI in district court and appealed to superior court for trial de novo.  At the superior court trial, the DRE officer who had examined Fincher testified about his conclusions and the State introduced evidence that Fincher’s blood contained measurable amounts of three drugs: alprazolam (Xanax), hydroxyzine buproprion (Wellbutrin), and lamotrigine (Lamictal). The trial court instructed the jury that alprazolam, a Schedule IV controlled substance, is an impairing substance, and Fincher was convicted.

On appeal. Fincher raised two arguments on appeal. First, she argued that the State’s evidence was insufficient as the State offered no evidence to show that the amount of alprazolam in her blood was sufficient to cause impairment. The court of appeals disagreed. The testimony from the officers who responded to the accident in the drive-thru about Fincher’s impairment, Fincher’s admission that she had consumed alprazolam, and the DRE officer’s testimony that he determined Fincher was impaired by a CNS depressant were sufficient evidence to warrant submitting the case to the jury.

Fincher also argued that the trial court abused its discretion by allowing the DRE officer to testify that she was impaired by a CNS depressant without requiring the State to first establish the reliability of the methodology used in carrying out a DRE examination.

Though it has since been amended, at the time of the Fincher’s trial, Rule 702 stated in relevant part:

(a) 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, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles and methods.

(3) The witness has applied the principles and methods reliably to the facts of the case.

(a1) A witness, qualified under subsection (a) of this section and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:

(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.

(2) Whether a person was under the influence of one or more impairing substances, and the category of such impairing substance or substances. A witness who has received training and holds a current certification as a Drug Recognition Expert, issued by the State Department of Health and Human Services, shall be qualified to give the testimony under this subdivision.

G.S. § 8C-1, Rule 702 (2015).

The defendant’s argument in Fincher thus echoed the objections that defendants in earlier DWI cases had raised to the admission of testimony regarding the results of a horizontal gaze nystagmus (HGN) test. In order to testify about the conclusions from such a test, the argument went, the State first must show that it is reliable. But last year, the court of appeals in State v. Younts, ___ N.C. App. ___, 803 S.E.2d 641 (2017) (discussed here), held that a law enforcement officer trained to administer a Horizontal Gaze Nystagmus (HGN) test may properly testify about the results of a test he administered without any determination by the trial court that HGN testing is scientifically reliable. Younts relied on the North Carolina Supreme Court’s statement in States v. Godwin, 369 N.C. 605 (2017), that the adoption of Rule 702(a1) “clearly signaled that the results of the HGN test are sufficiently reliable to be admitted into the courts of this State” in determining that Rule 702(a1) eliminated the need for a Daubert reliability review of HGN testing.

The Fincher court followed suit, determining that the same special admissibility rules apply to the admission of DRE testimony under Rule 702(a1)(2). Thus, no foundation establishing the reliability of a DRE examination is required for a DRE officer to testify about his conclusions based on such an examination.

Can the legislature do that? If the General Assembly were one of my teenagers, it might respond, “I just did.” Or, to mimic my second son:  “Watch me.” Clearly, the General Assembly has enacted rules establishing the reliability of this kind of evidence and the appellate courts have upheld the application of those rules.

I don’t think that means, however, that the legislature’s power in this regard is boundless. First, even the special rules under Rule 702 do not require the trial court to admit such testimony. The current version of Rule 702(a1), which was amended in 2017 to eliminate any debate about whether a foundation was required, provides that

(a1)      Notwithstanding any other provision of law, a witness may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:

(1)        The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered in accordance with the person’s training by a person who has successfully completed training in HGN.

(2)        Whether a person was under the influence of one or more impairing substances, and the category of such impairing substance or substances, if the witness holds a current certification as a Drug Recognition Expert, issued by the State Department of Health and Human Services.

As before, the rule states that a witness may testify to the specified matters. The rule continues to vest the trial court with the authority to determine, in its discretion, whether such evidence is admissible.  Accordingly, if a trial court were to find, for example, that a DRE officer did not properly administer an evaluation, the trial court could exclude the testimony. The rule also leaves open the possibility that a trial court presented with evidence that the HGN test or DRE methodology was not sufficiently reliable could exclude the evidence from trial – a safety valve that is required by due process. See, e.g., Commonwealth v. Camblin, 31 N.E.3d 1102, 1111 (Mass. 2015) (recognizing that the legislature has the power to prescribe the rules of evidence and the methods of proof for trial but stating that this power “does not mean that the reliability of every type of evidence the Legislature may deem admissible, particularly in a criminal case, is automatically insulated from challenge and review on reliability grounds.”)