Proving that a driver was impaired by alcohol is not all that difficult, particularly when the driver submits to a breath test and the result is .08 or more. Proving that a driver was impaired by drugs or by a combination of alcohol and drugs is considerably more challenging. But an opinion released yesterday by the court of appeals demonstrates one way in which it can be done, even without a confirmatory chemical test. Continue reading
Tag Archives: lay opinion
Even the greenest of prosecutors knows to ask it. And all officers, from rookie to veteran, know how to answer. Rare is the impaired driving case without it. What’s the it? The opinion question, of course.
You’ll find the following exchange recorded in many a DWI transcript.
Q: Did you form an opinion, satisfactory to yourself, that the defendant had consumed a sufficient amount of some impairing substance so as to appreciably impair his mental or physical faculties or both?
A: Yes, I did.
Q: What was that opinion?
A: It was my opinion that the defendant had consumed a sufficient quantity of an impairing substance so that his mental and physical faculties were both appreciably impaired.
Q: Did you have an opinion as to what the impairing substance was?
A: I believed it to be some type of alcohol.
This line of questioning is as proper as it is prevalent. North Carolina’s courts have long held that a lay witness who has personally observed a person may express an opinion as to whether the person was impaired by an impairing substance. See State v. Lindley, 286 N.C. 255 (1974). Though officers frequently base such opinions in part upon their training and experience regarding the physical manifestations of having consumed alcohol or some other impairing substance in addition to their personal observations, courts have considered such opinions to be those of a lay rather than an expert witness. See id.
Perhaps because the question is so ubiquitous, it has taken on a talismanic quality. Defendants sometimes argue that the State’s evidence is insufficient as matter of law if an officer does not testify as to his opinion that the defendant was “appreciably impaired,” by an “impairing substance.” Such opinion testimony is not, however, essential to proving the elements of impaired driving.
Certainly the State must prove that the defendant was impaired. The State may establish this element by proving that the defendant (1) was under the influence of an impairing substance, (2) consumed sufficient alcohol that he or she had, at any relevant time after the driving, an alcohol concentration of 0.08 or more, or (3) had any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See G.S. 20-138.1(a)(1), (2), (3). Chemical testing can establish impairment for purposes of the .08 and Schedule I controlled substances theory, and fact testimony from witnesses can establish that a defendant was “under the influence,” or, in other words, “appreciably impaired,” by an impairing substance. Thus, an officer’s testimony regarding his or her observations, which might include faulty driving, an odor of alcohol, red, glassy, eyes, poor performance on field sobriety tests, and slurred speech, among other observations, often
are is legally sufficient, without the opinion based on those perceptions, to prove impairment.
So, while the officer’s opinion often will be
was helpful to the jury, see State v. Adkerson, 90 N.C. App. 333, 338 (1988), it is not essential to the State’s case. It’s not magic. That’s a myth.
I came across an interesting out-of-state case today. In State v. McLean, __ A.3d __ (N.J. Mar. 31, 2011), the Supreme Court of New Jersey held that an officer who “observed defendant engage in behavior that the officer believed was a [hand-to-hand] narcotics transaction” could testify only about the basic facts that he observed, and could not give his lay opinion that he saw drug sales. The court concluded that such an opinion is not helpful to the jury, which is able to interpret the basic facts observed by the officer on its own, and that allowing such opinion testimony would improperly allow a witness to comment directly on the defendant’s guilt. The case got me wondering about North Carolina law concerning lay testimony by officers about drug activity.
Drug identification. We know that such testimony can’t be used to identify controlled substances, except, apparently, for marijuana. A recent post on that evolving issue is here.
Drug packaging. On the other hand, officers, at least those with some personal experience regarding the drug trade, can provide lay opinion testimony about the packaging of drugs. State v. Hargrave, 198 N.C. App. 579 (2009) (officers properly gave lay opinion testimony that “the cocaine [found near the defendant] was packaged as if for sale” based on the officers’ “personal experience” and “personal knowledge of drug practices”).
Connection between drugs and money. Similarly, officers with appropriate personal experience may also testify about the connection between drug sales and money. Id. (officers properly testified that “the number of twenty-dollar bills found on defendant were indicative of drug sales”); In re D.L.D., __ N.C. App. __, 694 S.E.2d 395 (2010) (officer’s testimony that it is common for drug dealers to possess both money and drugs, and to have more of the one when they have less of the other, was properly “based on personal experience” and helpful to the fact-finder); State v. Bunch, 104 N.C. App. 106 (1991) (officer properly gave lay opinion testimony that among people involved in the drug trade, it was common “for one person to hold the money and for another person to carry the drugs”).
Connection between drugs and items. Officers may also testify about the association between certain items and drug activity. State v. Hart, 66 N.C. App. 702 (1984) (officer properly gave lay opinion testimony that chemicals found in the defendant’s home were often used in the heroin trade); State v. Drewyore, 95 N.C. App. 283 (1989) (officer properly gave lay opinion that “a boat which was parked in front of the beach cottage was a type of boat which is often used in drug smuggling,” among other matters). But cf. State v. Givens, 95 N.C. App. 72 (1989) (officer’s lay opinion that scales are “common drug paraphernalia” was erroneously admitted because state failed to establish a proper basis for such testimony, but was not prejudicial).
Drug slang. Finally, whether officers can testify about slang used in the drug trade is discussed here. As that post observes, there’s not much law directly on point in North Carolina.
I didn’t find a case similar to McLean, the New Jersey case that kicked off my research. If you know of one, let me know. But based on the cases cited above, I would guess that our appellate courts would come out the other way and would allow lay opinion testimony that a hand-to-hand transaction appeared to be a drug sale.
Because our appellate courts often find the Fourth Circuit’s opinions to be persuasive authority, I read all the Fourth Circuit’s published criminal cases. Yesterday, the court decided United States v. Johnson, a drug case involving two noteworthy issues.
The short version of the facts is as follows: Officers wiretapped a suspected drug dealer’s phone. The suspect had several conversations with the defendant. The conversations consisted of slang that the officers interpreted as evidence of a drug conspiracy. The defendant was arrested and charged accordingly, and the case proceeded to trial. The government’s evidence consisted largely of (1) the recorded conversations, plus testimony from an officer about the meaning of the slang used in the recordings, and (2) evidence about the defendant’s prior drug activity, admitted under Fed. R. Evid. 404(b). The defendant was convicted and appealed, but the Fourth Circuit reversed.
First, it found that the trial court erred in admitting the officer’s testimony. It reasoned that (a) the officer was not offered as an expert, so his testimony was admissible, if at all, as lay opinion under Fed. R. Evid. 701; (b) Rule 701 allows lay opinion only if it is based on a witness’s personal knowledge and observations; and (c) the officer testified that he knew the meaning of the slang based on his training and experience, not his personal observations. Thus, his testimony was “expert testimony dressed in lay witness clothing,” and was inadmissible.
Despite that characterization, the court stated that the testimony would not have been admissible as expert testimony under Rule 702, either. Although several prior Fourth Circuit cases — cited in the opinion — allow officers to testify as experts regarding the drug trade and the language used therein, they may do so only when they can show that “reliable principles and methods” support their testimony. In this case, the officer did not testify in any detail about his principles and methods, and indeed, the government admitted that the phrases he interpreted were not “typical drug code” and did not have a fixed meaning in the drug world. (For example, the officer testified that “I’m going to hit you and let you know what’s happening” meant “when [I am] able to obtain cocaine, [I]’ll let [you] know so [you] can purchase it.”)
I don’t know of a North Carolina case that analyzes this issue in as much detail. I found several cases in which an officer testified in passing about the meaning of a term, but these cases do not focus on the propriety of such testimony. See, e.g., State v. Mackey, 352 N.C. 650 (2000) (officer explains that to be “looking” is “terminology indicating a desire to purchase drugs”). The most relevant case may be State v. Hargrave, __ N.C. App. __, 680 S.E.2d 254 (2009), in which the court of appeals held that officers properly gave lay opinion testimony that “the cocaine [found near the defendant] was packaged as if for sale and that the total amount of money and the number of twenty-dollar bills found on defendant were indicative of drug sales.” The court concluded that the testimony was based on the officers’ “personal experience” and “personal knowledge of drug practices.” I suspect that our appellate courts would view most testimony about drug-related slang, when offered by an experienced officer, as similarly grounded in the officer’s knowledge of the drug trade.
Of course, the line between an officer’s personal experience and her “training and experience” — which the Johnson court found to be an improper basis for lay opinion testimony — is not a sharp one. My sense is that the key to Johnson was not so much the specific theory of admissibility as it was the government’s concession that the terms at issue there were not typical drug code, and lacked any fixed meaning in the drug business. That concession calls into question the relevance of both the officer’s “training” and his “experience.” In effect, the officer was trying to translate a language that the government admitted he did not speak.
The second issue in the case was the Rule 404(b) issue. One of the government’s witnesses was an inmate who claimed that he had purchased drugs from the defendant nearly ten years earlier. The court ruled that this evidence should not have been admitted to show the defendant’s intent and knowledge. It found the prior conduct insufficiently relevant given the lack of connection in “time, pattern, or state of mind” between the earlier transactions and the charged offenses. This Rule 404(b) analysis is routine, and is similar to how North Carolina courts would address the same issue. Yet the case is noteworthy because the court found admission of the evidence to be reversible error even though the the trial judge had given a limiting instruction about the purpose for which the jury was permitted to consider the evidence. The Fourth Circuit has often placed considerable faith in limiting instructions, see, e.g., United States v. Johnson, 587 F.3d 625 (4th Cir. 2009) (expressing the court’s “presum[ption] that juries follow such instructions”), making this aspect of the opinion somewhat surprising.
A civil case decided by the court of appeals last week, Blackwell v. Hatley, addresses when a witness may testify as to his or her opinion of how fast a vehicle was traveling. In Blackwell, the court held that an accident report prepared by a town police officer estimating the defendant’s speed at the time of the crash was inadmissible because the officer had not seen the accident. The court likewise held inadmissible testimony about the defendant’s speed proffered by the plaintiff’s accident reconstruction expert on the basis that the expert had not seen the accident, which occurred in 2004. The date of the crash was significant with respect to the latter ruling as the court recognized that N.C. R. Evid. 702 was amended in 2006 to permit a witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash or who has reviewed the report of investigation, with proper foundation to give an opinion as to the speed of a vehicle—even if the witness did not observe the vehicle moving. See N.C. R. Evid. 702(i). Because the Blackwell accident occurred before the effective date of this provision (August 21, 2006), the court applied the rule from pre-amendment case law that permitted the admission of such evidence only if the expert witness saw the accident.
State v. Davis, ___ N.C. App. ___, 678 S.E.2d 385 (2009) demonstrates how Rule 702(i) applies in a criminal case involving a post-amendment crash. In Davis (discussed here), a state trooper who did not see the accident was qualified as an expert witness in accident reconstruction. Based upon his investigation, which included measurements and analysis of the weight of the vehicle in involved, the trooper testified as to his opinion of the speed the defendant’s vehicle was traveling just before the collision. See Defendant-Appellant’s Brief at 6; Brief for the State at 8, available here. The admissibility of this evidence was not challenged on appeal.
So, under current law, a witness qualified as an expert in accident reconstruction may, upon meeting other foundational requirements, give an opinion as to the speed a vehicle was moving, regardless of whether the expert saw the vehicle moving. Any other person may only testify as to his or her opinion of a vehicle’s speed if the witness saw the vehicle in motion.
What about lay witnesses? Can a person with no training in estimating speed testify about how fast a vehicle was moving? You betcha. The state supreme court has explained that “a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.” Insurance Co. v. Chantos, 298 N.C. 246, 250, 258 S.E.2d 334, 336 (1979). Indeed, in Blackwell, the court held admissible testimony from two lay witnesses who saw the accident from across the street and estimated the defendant’s speed.
But wouldn’t evidence of speed based upon a radar reading be better? Not necessarily . G.S. 8-50.2 provides that the results of the use of “radio microwave, laser, or other speed-measuring instruments” are admissible as evidence of the speed of an object “for the purpose of corroborating the opinion of a person as to the speed of an object based on the visual observation of the object by such person.” Indeed, in State v. Jenkins, 80 N.C. App. 491, 342 S.E.2d 550 (1986), the court granted the defendant a new trial based upon the trial court’s intimation, in response to a question from the jury, that defendant could be convicted solely upon the radar measurement of his speed. The Jenkins court explained that “[t]he General Assembly has provided that the speed of a vehicle may not be proved by the results of radar measurement alone and that such evidence may be used only to corroborate the opinion of a witness as to speed, which opinion is based upon actual observation.”