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).
Tag Archives: DRE
Daubert and Expert Testimony of Impairment
With the amendment of Rule 702 of the North Carolina Rules of Evidence in 2011, North Carolina became a Daubert state. That change means that trial judges in this state, like their federal counterparts, serve as gatekeepers when faced with a proffer of expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (interpreting the role of the judge under Rule 702 of the Federal Rules of Evidence, which is substantially similar to amended N.C. Evid. R. 702). The judge must determine, at the outset, whether the expert is purporting to testify to scientific, specialized or technical knowledge that will assist the trier of fact to understand or determine a fact in issue. Kumho Tire v. Carmichael, 526 U.S. 137 (1999) (recognizing applicability of Daubert principles to all types of expert testimony admitted under Rule 702). This requires the court to preliminarily assess whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue. Factors that may be relevant to that consideration are whether the theory or technique upon which the expert relies has been tested, whether it has been subject to peer review or publication, the known or potential rate of error, and whether the theory or technique enjoys general acceptance within the relevant scientific community.
She blinded me with science. The purpose of these requirements is to ensure that expert testimony is reliable and relevant. The gatekeeper “make[s] certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152 (1999). One federal magistrate judge explained the rationale in a way any child of 1980s is sure to appreciate: “[Such evidence] must not be cloaked in an aura of false reliability, lest the fact finder, like the protagonist in the Thomas Dolby song, be ‘blinded by science’ or ‘hit by technology.’” United States v. Horn, 185 F. Supp. 2d 530, 551 (D. Md. 2002).
More than tort reform. While the changes to Rule 702 were enacted as a component of tort reform, the changes impact criminal as well as civil cases. Experts in criminal court are proffered to testify to items ranging from firearm toolmark identification, see State v. Britt, 217 N.C. App. 309, 314 (2011), to the “science” of the use of force, see State v. McGrady, 753 S.E.2d 361, 365 (N.C. Ct. App. 2014) review allowed, 2014 WL 2652419 (N.C. June 11, 2014). Such testimony frequently is offered in impaired driving cases to establish a defendant’s alcohol concentration or the fact of a defendant’s impairment by alcohol or other drugs.
Rule 702(a1). Before the 2011 amendments to Rule 702, which incorporated the Daubert gatekeeper requirements, the Rule was amended in 2006 to allow certain expert testimony regarding a defendant’s impairment. That portion of Rule 702 remains, and provides:
(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.
A few years after the enactment of Rule 702(a1), and before the Daubert amendments, the state court of appeals interpreted the new subsection “as obviating the need for the State to prove that the HGN testing method is sufficiently reliable” as a condition of admitting the result. State v. Smart, 195 N.C. App. 752, 756 (2009). The Smart court rejected the defendant’s argument that a person testifying about HGN results must be an expert in the methodology underlying the test, explaining that such an interpretation “would make the subsection nothing more than an example of the requirements of subsection (a), which . . . states that “ ‘a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.’ ” Id. (quoting former Rule 702(a)). The state’s appellate courts have not considered the requirements of Rule 701(a1)(2), pertaining to DRE testimony, but given that the subsection is similarly worded, one might have expected the same reasoning to apply – at least before the 2011 amendments.
Daubert vs. Smart. It is unclear whether the Smart analysis controls under current Rule 702. If the trial court cannot consider the reliability of the HGN test or the DRE protocol, then it arguably cannot fulfill its gatekeeper role under Rule 702(a). On the other hand, one might interpret Rule 702(a1) as expressing the legislature’s intent that the trial court not exercise this gatekeeper function with respect to these categories of expert testimony. If that interpretation controls, and the legislature’s imprimatur of this methodology does not violate a defendant’s right to due process, then one can expect the State to have a relatively easy time introducing expert testimony on the results of HGN analysis and conclusions based upon a DRE examination. Indeed, before the supreme court in Kumho Tire clarified that Daubert applied to all types of expert testimony under Rule 702, not just to scientific testimony, some courts concluded that HGN and DRE testimony was not subject to Daubert because it was not scientific. See United States v. Everett, 972 F. Supp. 1313, 1321 (D. Nev. 1997) (finding that DRE testimony was not governed by Daubert “on the basis that the DRE’s testimony is not ‘scientific’ in nature, but based upon observation, training and experience” and permitting DRE to testify “to the probabilities, based upon his or her observations and clinical findings, but cannot testify, by way of scientific opinion, that the conclusion is an established fact by any reasonable scientific standard”); State v. O’Key, 899 P.2d 663, 670 (Or. 1995) (holding that admissibility of HGN “is subject to a foundational showing that the officer who administered the test was properly qualified, that the test was administered properly, and that the test results were recorded accurately”).
If, however, the amendments to Rule 702(a) call for the trial judge to assess the reliability of all expert testimony, including HGN and DRE testimony, the State will have to satisfy a higher, though likely surmountable, threshold. Cf. State v. Aleman, 194 P.3d 110, 120 (“[W]hether the [DRE] Protocol is deemed non-scientific or scientific, every case called to our attention that has considered the issue [has] held the DREs’ testimony to be generally admissible.”) This may require, however, that the State establish the reliability of the scientific principles underlying such testing, which may involve the testimony of a witness other than the arresting officer or evaluating DRE. One state appellate court has concluded, for example, that evidence of DRE procedures and results are admissible as scientific evidence only when corroborated by a toxicology report. The Court of Appeals of Oregon explained in State v. Aman, 95 P.3d 244 (Or. App. 2004) that “the omission of the corroborating toxicology report deprives the test of a major element of its scientific basis, and there is no evidence that an examiner’s reputation for accuracy constitutes an adequate substitute.” Id. at 472-73. The same court concluded in a subsequent case that a police officer was properly allowed to testify as to his “nonscientific expert opinion” that the defendant was under the influence of a narcotic analgesic where that opinion was based on a foundation that included evidence encompassed in a DRE test. See State v. Rambo, 279 P.3d 361, 365 (2012) review denied, 296 P.3d 1275 (Or. 2013).
A fine line? I’d say. What’s happening in your trials? Is the gate swinging wide open for DRE and HGN testimony or is it guarded by a skeptical judge?
Expert Testimony Regarding Impairment
Rule 702(a1) was enacted in 2006 (effective for hearings held August 21, 2006 or later) to render admissible two types of expert testimony on the issue of impairment: (1) testimony regarding the results of a Horizontal Gaze Nystagmus (HGN) test; and (2) testimony from a certified Drug Recognition Expert (DRE) regarding whether a person is under the influence of an impairing substance. For both types of expert testimony, the rule specifies that testimony is admissible solely on the issue of impairment and not on the issue of a specific alcohol concentration level. Expertise in HGN and drug recognition and classification are premised upon standardized curricula developed by the National Highway Transportation Safety Administration.
HGN is one of three components of the Standardized Field Sobriety Test battery. The others are the Walk-and-Turn and the One-Leg Stand tests. The latter tests measure behavior that a lay person without specialized training would commonly associate with intoxication such as lack of balance and coordination. The HGN test, in contrast, evaluates the eye’s ability to smoothly follow a moving stimulus and the jerking of the eye (termed “nystagmus”) as it moves to the far side of a person’s vision. Specialized, or scientific, knowledge is required to correlate this type of eye movement with intoxication. Thus, before enactment of Rule 702(a1)(1), the state supreme court held in State v. Helms, 348 N.C. 578 (1998), that testimony from a police officer regarding the results of an HGN test performed by the defendant was inadmissible without the introduction of foundational evidence establishing that the HGN test was scientifically reliable. The scientific reliability of HGN testing has been hotly debated among law enforcement and legal advocates, and research supports both the views of HGN proponents and its detractors. Compare Steven J. Rubenzer and Scott B. Stevenson, Horizontal Gaze Nystagmus: A Review of Vision Science and Application Issues, Journal of Forensic Sciences (March 2010) (reviewing prosecution and defense claims about HGN and concluding that “[w]hile the sobriety testing literature provides circumstantial evidence of HGN’s validity when BAC is used as a criterion, the eye movement literature raises serious questions about its use as a roadside sobriety test”) with Marcelline Burns, The Robustness of the Horizontal Gaze Nystagmus Test, National Highway Transportation Safety Administration (September 2007) (concluding that “HGN as used by law enforcement is a robust procedure” and finding “no basis for concluding that the validity of HGN is compromised by minor procedural variations”).
Indeed, Rule 702(a1)(1) was proposed by the Governor’s Task Force on Driving While Impaired, which opined that HGN testimony was “among the most effective sobriety tests” and would “enhance accurate assessment of DWI offenders,” but that “[b]ecause of State v. Helms (1998), most judges will not admit this testimony.”
The adoption of Rule 702(a1)(1) up-ended the Helms analysis by “obviating the need for the state to prove that the HGN testing method is sufficiently reliable.” See State v. Smart, ___ N.C. App. ___, 674 S.E.2d 684 (2009). Under the current rule, an officer trained in administering the test may testify about the defendant’s performance without being qualified as an expert on the scientific principles underlying the HGN test or whether there is a causal connection between alcohol use and distinct and sustained nystagmus. Doubtless, experts will continue to debate the reliability of HGN, but their arguments in criminal cases now will be aimed at the finder of fact rather than the gatekeeper jurist.
A similar provision likewise proposed by the Governor’s Task Force on Driving While Impaired—Rule 702(a1)(2)—permits a certified Drug Recognition Expert (DRE) to testify regarding whether a person was under the influence of an impairing substance and the category of the substance. DREs are trained to administer a 12-step protocol 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 certification and evaluation process is described in detail here.
There are no published appellate cases in North Carolina applying Rule 702(a1)(2) or defining the permissible scope of DRE testimony, though two unpublished cases reveal the sort of testimony the State may attempt to proffer through a DRE. In State v. Wright, No. COA09-1062 (N.C. App. May 18, 2010) (unpublished op.), a DRE officer testified that the defendant was impaired by Ambien, a central nervous system depressant available only by prescription. The defendant did not object to this testimony at trial, but argued on appeal that the DRE’s opinion was improperly admitted because it was inconsistent with the results of the analysis of her blood, which revealed the presence of a central nervous system stimulant rather than a depressant, and because the officer was not qualified to testify about the effect of prescription drugs on the human body. The court held that the officer was properly tendered as an expert and the testimony was proper, but that even if the testimony was improper, it did not amount to plain error.
In State v. Blinderman, COA08-824 (N.C. App. June 2, 2009) (unpublished op.), the defendant likewise failed to object at trial but argued on appeal that the trial court should have excluded testimony from a DRE regarding the effects of prescription drugs on the body as well as other confusing and erroneous testimony. Notwithstanding the erroneous nature of the testimony and the fact that the DRE never personally examined the defendant as required by DRE protocol, the court found no plain error. Interestingly, the Supreme Court of Kentucky recently reversed a defendant’s convictions for second-degree manslaughter and second-degree assault based on improper testimony from a DRE who did not observe the defendant but instead based his opinion solely on his review of ambulance report. See Burton v. Kentucky, 300 S.W.3d 126 (Ky. 2009). The Burton court held that the DRE’s testimony “improperly invited the jury to speculate that Burton could have been under the influence of LSD, ecstasy, and methamphetamine—all illicit substances of which there was no evidence.”
Because DRE testimony can be a critical to the state’s case in prosecutions where a chemical analysis fails to detect an impairing substance or is inconclusive regarding the time of its ingestion, it seems likely that our appellate courts will be called upon in future cases to more clearly define what sorts of opinion testimony may accompany DRE testimony regarding a person’s impairment.
As always, we’d love to hear from you regarding how these issues are playing out in the trial court trenches.