Sobriety Checkpoints, Field Sobriety Testing, and DRE Testimony

Constitutionality of Sobriety and Substance Checkpoints

State law on the use of sobriety checkpoints or roadblocks varies. The U.S. Supreme Court has ruled that sobriety checkpoints are constitutional as a general rule when they meet certain guidelines and procedures. The Court found a narcotics checkpoint did not meet the standard because the purpose of the checkpoint was general crime control rather than a specific purpose such as controlling the borders or reducing drunk driving.

State Sobriety Checkpoint Laws, Governors Highway Safety Association (March 2017). This resource provides a breakdown of state laws on the legality of sobriety checkpoints. Currently, 38 states and the District of Columbia permit sobriety checkpoints, while 12 states do not permit sobriety checkpoints.

Sobriety Checkpoints
Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). This case established the constitutionality of sobriety checkpoints under the U.S. Constitution and dealt with guidelines setting forth procedures governing checkpoint operations, site selection, and publicity.

Holding: "In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment."

Narcotics Checkpoints 
City of Indianapolis v. Edmond, 531 U.S. 32 (2000). The Supreme Court held in this case that narcotics checkpoints were unconstitutional.

Holding: "Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment."


Particular Methods of Sobriety Testing

In the 1970’s, the National Highway Traffic Safety Administration funded research to identify techniques that police officers could rapidly employee on the roadside which would provide empirically reliable evidence of whether a driver was driving while intoxicated. The researchers originally tested 6 different field tests. However, they later concluded that a three test battery would provide the most accurate results. Those three tests were the Horizontal Gaze Nystagmus, the Walk and Turn, and the One-Leg Stand. These three standardized test are universally taught at law enforcement academies and are used in almost every jurisdiction. Judicial officers are likely to hear testimony regarding them in the vast majority of DUI trials. A general familiarity with tests and the science behind them will help judicial officers navigate this are of the law.

Validation Studies
A placebo-controlled study to assess Standardized Field Sobriety Tests performance during alcohol and cannabis intoxication in heavy cannabis users and accuracy of point of collection testing devices for detecting THC in oral fluid, Psychopharmacology (2012). This study addresses the effectiveness of SFSTs to detect cannabis intoxication. 

The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues, Law and Human Behavior, Vol. 32, No. 4 (August 2008).

Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent: Final Report, NHTSA (August 1998). “The results of this study provide clear evidence of the validity of the Standardized Field Sobriety Test Battery to discriminate above or below 0.08 percent BAC. Further, study results strongly suggest that the SFSTs also accurately discriminate above or below 0.04 percent BAC.”

A Florida Validation Study of the Standardized Field Sobriety Test (S.F.S.T.) Battery, Florida State Safety Office (1997). “The data obtained during this study demonstrate that 95% of the officers' decisions to arrest drivers were correct decisions. Furthermore, 82% of their decisions to release drivers were correct. It is concluded that the SFST's not only aid police officers in meeting their responsibility to remove alcohol impaired drivers from the roadway, they also protect the rights of the unimpaired driver. These data validate the SFST's as used in the State of Florida by Pinellas County Sheriffs deputies who have been trained under NHTSA guidelines. SFST validity now has been demonstrated in Florida, California (1997) and Colorado (1995).”

Other Resources on SFST
Horizontal Gaze Nystagmus—The Science and the Law: A Resource Guide for Judges, Prosecutors and Law EnforcementNHTSA. This guide is designed especially to assist judges, prosecutors and law enforcement personnel in gaining a basic understanding of HGN, its correlation to alcohol and certain other drugs, other types of nystagmus, the HGN test’s scientific validity and reliability, its admissibility in other jurisdictions, and the purposes for which it may be introduced.

Evaluation of the Effects of SFST Training on Impaired Driving Enforcement, NHTSA (May 2011). As a result of SFST training, officers reported increased confidence in performing DWI-related activities comĀ­pared to pre-SFST training levels.

The Robustness of the Horizontal Gaze Nystagmus (HGN) Test, NHTSA (September 2007). Three experiments examined the effects of procedural variations in administration of the HGN test. Variations in stimulus speed and elevation, and distance of the stimulus from the suspect’s face were examined in a laboratory experiment. A second experiment conducted in training workshops varied the participants’ positions (standing, sitting, lying down). The third experiment examined HGN in participants who have functional vision in only one eye. The data demonstrate the validity of the HGN test with both standard and varied testing procedures. The variations did not alter the occurrence of, or the observations of, HGN.

Admissibility of Horizontal Gaze Nystagmus: Targeting Hardcore Impaired DriversAmerican Prosecutors Research Institute (May 2003). This resource details apparent advantages of the HGN test and suggests why it should be admissible in court.

Psychophysical Tests for DWI Arrest, NHTSA (June 1977). On the basis of preliminary investigations, six tests were chosen for an evaluation study. Ten officers administered the 6-test battery to 238 participants who were light, moderate and heavy drinkers. Placebo or alcohol treatments produced BACs in the range 0 - .15%. The police officers scored the performance of each test on a 1-10 scale, and on the basis of the entire battery judged whether the person should be arrested or released. All of the 6 tests were found to be alcohol sensitive, and the officers made correct arrest/release decisions for 76% of the participants. Data analysis led to recommendations of a “best” reduced battery of tests which includes examination of balance (One-Leg Stand) and walking (Walk-and-Turn), as well as the jerking nystagmus movement of the eyes (Alcohol Gaze Nystagmus).

Court Cases
State v. Homan, 89 Ohio St.3d 421 (2000).
The Ohio Supreme Court held that any variation in the use of NHTSA standardized field sobriety tests make the result complete unreliable as it relates to probable cause, a much lower standard than proof beyond a reasonable doubt needed for conviction.

The Homan court stated: “It is well established that in field sobriety testing even minor deviations from the standardized procedures can severely bias the results.” The court reasoned, to “the small margins of error that characterize field sobriety tests, making strict compliance critical.” The court found that “when field sobriety testing is conducted in the manner that departs from established methods and procedures, the results are inherently unreliable.”

City of West Bend v. Wilkeus, 2005 WI App 36.
The Wisconsin Court of Appeals stated: “Other than the bare assertion that the recommended standardized tests are both scientifically reliable and valid, the record contains no indication that they are based on science. Any scientific explanation for why the standardized procedures yield any particular result is completely absent. Standardization may lead to reliability in the sense that where examiners look for the same 'clues' to shape their observations of the subject, their observations are likely to be more similar. Similarity does not equate to more correct observations, however. The mere fact that the NHTSA studies attempted to quantify the reliability of the field sobriety tests in predicting unlawful [blood alcohol content] does not convert all of the observations of a person’s performance into scientific evidence.”

State v. Meador, 674 So. 2d 826 (Fla. 1996).


Drug Recognition Expert Testimony Cases

Drug Recognition Experts (DREs) are law enforcement officers trained to identify people operating vehicles under the influence of drugs and substances other than alcohol. Different jurisdictions take a variety of approaches to DRE testimony. Some jurisdictions hold DRE protocol and evidence to be scientific evidence; some do not. Some jurisdictions permit DRE testimony to be introduced as expert testimony (usually under Rule of Evidence 702 or the equivalent in that state), while some jurisdiction require DRE testimony to be introduced as non-expert opinion testimony. Some jurisdictions analyze DRE testimony through the lens of Daubert, while other jurisdictions use the Frye analysis. The following is a chart which lists appellate (unless otherwise noted) cases that address the admissibility of DRE protocol and/or DRE testimony in court and discuss DRE testimony through the evidentiary lens of either Frye or Daubert. Under the chart, there are case summaries for each of these cases and additional case summaries in which courts admitted or accepted the DRE protocol and testimony into evidence. For a well-developed state-specific look into treatment of DRE evidence and testimony, Oregon has an expansive and easily accessible set of cases on the topic. (Current as of August 2017)

Case Citation

DRE Scientific?

New or Novel?

Frye/Daubert

U.S. v. Everett, 972 F. Supp. 1313 (D. Nev. 1997)

No

Not Addressed

Daubert

Williams v. State, 710 So. 2d 24 (Fla. Dist. Ct. App. 1998)

No

No

Frye

State of Maryland v. Consolidated Cases, 2012 Md. Cir. Ct. LEXIS 1.*

No

Not Addressed

Frye

State v. Klawitter, 518 N.W.2d 577 (Minn. 1994)

No

No

Daubert

State v. Daly, 775 N.W.2d 47 (Neb. 2009)

Yes

No

Daubert

State v. Aleman, 194 P.3d 110 (N.M. Ct. App. 2008)

No

Not Addressed

Daubert

People v. Quinn, 580 N.Y.S.2d 818 (1991)*

Yes

No

Frye

State v. Sampson, 6 P.3d 543 (Ct. App. Ore. 2000)

Yes

No

Daubert

Utah v. Layman, 953 P.2d 782 (Utah Ct. App. 1998)

No

Not Addressed

Unclear

State v. Baity, 991 P.2d 1151 (Wash. 2000)

Yes

Yes

Frye

State v. Chitwood, 879 N.W.2d 786 (Ct. App. Wis. 2016)

Yes

No

Daubert

* = non-appellate court

Federal

U.S. v. Everett, 972 F. Supp. 1313 (D. Nev. 1997). In this case, the U.S. District Court held that: (1) the factors for determining whether expert scientific testimony is admissible under Daubert include whether the theory or technique employed by the expert is generally accepted in the scientific community, whether it has been subjected to peer review and publication, whether it has been tested, and whether the known or potential rate of error is acceptable, and (2) upon an appropriate foundation being laid, the DRE protocol conducted by the witness, together with his conclusions drawn therefrom, would be admissible to the extent that the witness can testify to the probabilities, based upon his or her observations and clinical findings, but could not testify, by way of scientific opinion, that the conclusion was an established fact by any reasonable scientific standard.

Florida

Williams v. State, 710 So.2d 24 (D. Ct. App. Fla. 1998). In this case, the Florida District Court of Appeals held that the DRE Protocol in general was not scientific. However, the court also held the HGN, VGN and LOC aspects of the test are scientific in nature but do not need to be analyzed under Frye because they are not new or novel.

"The defendant contends that the trial court erred in admitting the DRE testimony and evidence because the State failed to establish the reliability of the DRE protocol at the hearing. According to the defendant, the DRE protocol constitutes a scientific test, and fails to meet the Frye standard as generally accepted by the relevant scientific community. We disagree and affirm the trial court's order granting the State's motion to admit the DRE testimony and evidence, including the standardized field sobriety and horizontal gaze nystagmus tests. In order to accurately address the issues as framed by the trial court, we must first distinguish between the general portion of the DRE protocol and its subsets, the HGN, VGN, and LOC."

Illinois

People v. Ciborowski, 55 N.E.3d 259 (App. Ct. Ill. 2016). In this case, the Appellate Court of Illinois affirmed the field of “drug recognition” as an area of expertise. The court held that the trial court in this case did not abuse its discretion in allowing limited testimony from a DRE into evidence.

Maryland

State of Maryland v. Consolidated Cases, 2012 Md. Cir. Ct. LEXIS 1 (unpublished). In these cases, the court considered the admissibility of drug recognition expert (DRE) testimony in the state of Maryland. The court heard conflicting expert testimony on the reliability of DRE testing. One of the defense experts testified that the nystagmus tests performed as part of the DRE’s battery of tests was being performed inadequately and that DREs lacked the medical background to properly determine the cause and implications of nystagmus. Another defense expert testified that the variable nature of the test (like being able to pick and choose only the “important” elements of the test) severely undermined its scientific credibility and that some of the medical information in the DRE handbook was blatantly incorrect. The court used the Frye standard to determine the eligibility of DRE testimony in court. The court considered that previous courts had ruled that DRE testimony was admissible but not as expert scientific testimony and also considered that under the Daubert standard, the present scientific testimony would suggest that DRE testing was not generally accepted in a properly-defined scientific community. The court cited additional testimony saying that many of the factors used in DRE analysis are not used in the medical community to determine drug use. The court ultimately concluded that DREs were not qualified to testify on the impairment of suspects and that DRE testimony was more prejudicial than beneficial, so it granted the defendants’ motion to exclude the testimony of the DREs.

Massachusetts

Commonwealth v. Remy, 40 N.E.3d 1056 (2015) (unpublished). In this case, the Appeals Court of Massachusetts upheld case law stating that an opinion regarding a defendant’s sobriety is a lay opinion, and not an expert opinion (citing Commonwealth v. Brown, 83 Mass. App. Ct. 772 (2009) that the evidence is not scientific). An officer may testify to a defendant’s apparent intoxication without laying any foundation for expertise because, unlike opinions based on scientific methods, the foundation for testimony regarding sobriety falls within the common experience and knowledge of jurors. However, the Appeals Court upheld the officer’s qualification as a DRE (specifically his training and experience in administering field sobriety tests) because it was highly relevant to the jury’s assessment of his testimony about the defendant’s performance on field sobriety tests.

Minnesota

State v. Klawitter, 518 N.W.2d 577 (Minn. 1994). In this case, the Supreme Court of Minnesota held that the DRE Protocol was not a new or novel scientific test under Frye, but allowed the officer’s testimony in the case to be entered into evidence as non-expert testimony.
"We are of the opinion, however, that the protocol in question does not demand the kind of scrutiny required for the presentation of some novel scientific discovery or technique. The real issue is not the admissibility of the evidence but the weight it should receive, and that is a matter for the jury to decide without being led to believe that the evidence is entitled to greater weight than it deserves. Therefore, in the courtroom the officer shall not be called a 'Drug Recognition Expert.' Perhaps the officer can be called a 'Drug Recognition Officer' or some other designation which recognizes that the officer has received special training and is possessed of some experience in recognizing the presence of drugs without suggesting unwarranted scientific expertise."

State v. Scheffler2014 WL 4957113 (unpublished). In this case, the Minnesota Court of Appeals held that while opinion testimony by a DRE that a person is impaired may not be sufficient, without more, to support a guilty verdict under Klawitter, the DRE’s testimony in this particular case was not the only evidence and the evidence was more than sufficient to sustain the conviction.

State v. Cammack, 1997 Minn App. LEXIS 278 (unpublished). This case supports the use of DRE protocol and testimony. In it, the defendant argued that the DRE interview should have been videotaped and that the court should have given the jury some cautionary instruction about DRE testimony. The appellate court disagreed.

Montana

State v. Pulliam, 378 Mont. 537 (2015) (unpublished). In this case, the Supreme Court of Montana held that the DRE trooper’s qualifications as an expert were established under Montana Rules of Evidence, as the trooper had been with the highway patrol for over 12 years and had seen over 40 cases involving methamphetamine in the past year; he had participated in several weeks of criminal interdiction training each year; and he testified about the selection process for Drug Recognition Expert (DRE) training, its prerequisites, the training course itself, and the DRE evaluation process. 

Nebraska

State v. Daly, 775 N.W.2d 47 (Neb. 2009). In this case, the Nebraska Supreme Court held that DRE protocol was a sufficiently valid methodology under Daubert to support a DRE’s testimony at trial on a DUI charge that, based on his observations, a suspect was under the influence of drugs. The court explained that a DRE examination involves, among other things, the ruling in or out of medical conditions that could be responsible for the suspect’s impairment.

New Jersey

State v. Zoppy, 2014 WL 1418317 (unpublished). In this case, the Appellate Division of the Superior Court of New Jersey upheld a lower court’s opinion that the drug recognition expert (DRE) who examined the defendant could not testify as an expert but said that his experience in performing these tests contributed to the validity of the opinion that defendant was intoxicated at the time of his traffic stop, ultimately upholding the conviction.

New Mexico

State v. Aleman, 194 P.3d 110 (N.M. Ct. App. 2008). In this case, the New Mexico Court of Appeals held that the DRE Protocol is not a scientific test but would meet the Daubert standard anyway.

"We determine that the Protocol is not scientific in its entirety, but that the State laid an adequate foundation to introduce the individual, scientific steps of the Protocol. Although we conclude that the Protocol as a whole is not scientific, even if we were to hold otherwise, we would affirm because the State established a sufficient scientific foundation for the Protocol under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). Because the State has established the scientific reliability of the Protocol, we further determine that a DRE may testify as an expert witness regarding the administration and results of the Protocol as it is applied to a particular defendant. Last, we hold that minor variations in the administration of the Protocol do not necessarily undermine the admissibility of Protocol evidence. We therefore affirm the decisions of the district court as to both Defendants, which denied Defendants' motions to exclude the testimony of the DREs."

State v. Gonzales, 2017 WL 747874 (unpublished). In this case, the Supreme Court of New Mexico upheld a conviction based partly off of erroneously admitted DRE evidence. In the defendant's trial, the state did not lay an adequate foundation for the introduction of DRE evidence, but the trial court admitted the evidence anyway. On appeal, the state conceded that the trial had erred in admitting the evidence, but argued that it was harmless error. The New Mexico Court of Appeals agreed and reversed the defendant's conviction. However, upon the state's writ of certiorari, the New Mexico Supreme Court considered the entirety of the officer's testimony and used it to hold that the introduction of the testimony was harmless error and therefore uphold the defendant's conviction. In its opinion, the court court stated that a full DRE analysis is helpful, but not required in every case, and denied to overturn the conviction based on the fact that the arresting officer did not complete a full DRE analysis.

New York

People v. Quinn, 580 N.Y.S.2d 818 (1991). In this case, the District Court for Suffolk County undertook an extensive analysis and determined that DRE Protocol is a scientific test, and it used the Frye test to find that the evidence was admissible. The defendant's conviction was later overturned, but on different procedural grounds unrelated to the court's DRE testimony analysis.

"The court holds that the People have successfully established that both the HGN test and the DRE protocol meet the standards enunciated by Frye (supra) and Middleton (supra). In coming to this conclusion, the court has considered the credible and unrefuted testimony of nine witnesses each of whom stated that both HGN and the protocol permit the DRE to reliably and accurately determine whether an individual is impaired, and if so, by what classification of drug. Further, the court found the People's evidence to be persuasive. The protocol is relatively simple. Jurors should have no trouble understanding the testimony of the DRE witness. This is not a case of a procedure so complicated and so technical that a :lay jury [might] rely to an even greater degree on the expert witness...[whose] testimony may be accepted and credited without being properly evaluated.'"

Oregon

State v. Sampson, 6 P.3d 543 (Ct. App. Ore. 2000) In this case, the Court of Appeals of Oregon held that DRE Protocol was a scientific test, and the court used a modified Daubert test to find that the evidence was admissible. 

"Our consideration of the various factors that weigh for and against admission of scientific evidence leads us to conclude that the underlying proposition of the DRE protocol--that ingestion of controlled substances causes a variety of symptoms detectable by a trained officer--is sufficiently reliable to justify admission of the protocol's results into evidence. Here, the state is offering the protocol as evidence tending circumstantially to make more probable a fact of consequence--that defendant was under the influence of a controlled substance. For that limited purpose, the DRE protocol is relevant under OEC 401. Furthermore, it meets the helpfulness requirement of OEC 702 by informing jurors of the significance of the results of FSTs and the other components that make up the protocol."

But see Oregon v. Aman, 95 P.3d 244 (Ct. App. Ore. 2004). In this case, the Court of Appeals refined its holding in Sampson and held that in a prosecution for driving under the influence of controlled substances, the trial court erred in admitting evidence of the 12-step Drug Recognition Expert (DRE) procedures and results as scientific evidence to prove defendant had been under the influence of a controlled substance, in the absence of the corroborating toxicology urinalysis report, which deprived the test of a major element of its scientific basis, rendering the test inadmissible as scientific evidence.

State v. Beltan-Chavez, 286 Or.App. 590 (2017). In this case, the Oregon Court of Appeals thoroughly discussed expert testimony on the recognition of impairment by a trained law enforcement officer. The question in this case was whether the state needed to lay a foundation for its evidence against the defendant. The court said that the general expert testimony of the officer regarding his observations was not scientific and did not require a foundation to be laid, but the officer’s determination as to whether the defendant had passed or failed field sobriety tests *was* scientific and required a foundation. As such, the court overturned the defendant’s conviction for impaired driving, as the state did not lay a proper foundation for that testimony.

State v. Rambo, 279 P.3d 361 (Ct. App. Ore. 2012). In this case, the police officer's opinion that defendant had driven while under the influence was admissible as nonscientific expert opinion evidence, at trial of defendant on charge of driving under the influence of a controlled substance (DUII), where testimony was based on a foundation that included certain evidence that is encompassed in a drug recognition expert (DRE) test, even though evidence of the DRE protocol itself was inadmissible because officer had failed to complete protocol by failing to complete obtain the results of an analysis of the defendant's urine. The evidence showed that the officer was qualified, by virtue of considerable training and experience, to recognize the symptoms of drug impairment in the course of a DUII investigation, and the fact that officer reinforced his opinion in part on independently admissible scientific evidence, such as blood alcohol content and horizontal gaze nystagmus (HGN) test results, that were part of the DRE protocol did not render the officer’s opinion inadmissible as unqualified scientific evidence.

State v. Downing, 366 P.3d 1171 (Ct. App. Ore. 2016). In this case, the Court of Appeals of Oregon upheld a lower court decision that stated that an incompletely administered DRE protocol is not, itself, admissible as scientific evidence (citing State v. Sampson and State v Aman), but may still be admissible testimony. In the case, the state introduced certain portions of the DRE protocol as evidence by independently laying a foundation for the admission of each facet of the DRE protocol that it wished to have admitted. The court of appeals held that the trial court was not required to exclude all evidence that resulted from the incomplete 12-step DRE protocol.

State v. Burshia, 120 P.3d 487 (Ct. App. Ore. 2004). As interpreted in Oregon, for the DRE protocol and testimony to be admissible, all 12 steps of the protocol must be completed. In this case, in an interlocutory appeal, the state challenged the suppression of a breath test, which resulted in the exclusion of the DRE protocol and testimony. The appellate court remanded the case to the trial court for trial on the merits.

State v. McFarland, 191 P.3d 754 (Ct. App. Ore. 2008). In this case, the Court of Appeals of Oregon held that a DRE trainee was not qualified to give DRE testimony about the DRE protocol, that the trainee’s testimony should have been excluded, and that its admission was not harmless error. 

State v. Hernandez, 206 P.3d 197 (Ct. App. Ore. 2009). The DRE officer in this case did not collect a urine sample because the defendant refused. The appellate court stated the DRE protocol is "scientific evidence." The Court in this case expressed a willingness to admit the non-scientific aspects of the DRE test but the state failed to indicate which parts of the test they intended to use. This case falls squarely under Aman and is important because it identifies the Oregon response to the defendant's refusal to provide a sample.

State v. Bayer, 211 P.3d 327 (Ct. App. Ore. 2009). The defendant in this case challenged the method used to do the urine testing and argued that the deviation in the testing caused the DRE tests to be incomplete and inadmissible. The appellate court disagreed, reaffirming the logic of Sampson.

South Carolina

South Carolina v. Martin, 706 S.E.2d 40 (S.C. Ct. App. 2011). In this case, the South Carolina Court of Appeals allowed DRE testimony under South Carolina’s Rule 702 of Evidence, which is identical to the FRE of Evidence 702. The court did not identify whether the evidence was new or novel.  Additionally, the court performed a Frye/Daubert-type analysis on the testimony, but did not cite directly to either case.

Texas

Richter v. State, 482 S.W.3d 288 (Ct. App. Tex. 2015). In this case, the Texas Court of Appeals found that even though the state’s DRE was not certified at the time of the incident, but was certified by trial, the trial court did not abuse its discretion in allowing the state’s DRE to testify, as he was able to testify to his training and his methodology in developing his testimony. The court affirmed the defendant’s conviction.

Utah

Utah v. Layman, 953 P.2d 782 (Utah Ct. App. 1998). In this case, the Court of Appeals of Utah held that DRE testimony is not a scientific test. 

"Layman claims the trial court erred in admitting Deputy DeCamp's testimony regarding Layman's intoxication without first analyzing that testimony under the test set forth in State v. Rimmasch, 775 P.2d 388, 396-99 (Utah 1989). We agree with the State, however, that the Rimmasch analysis applies only to expert testimony based on scientifically derived facts or determinations, and not to an expert's personal observations and opinions based on his or her education, training, and experience. This court has held a Rimmasch analysis is required to determine "the admissibility of testimony based on an external scientific process or statistical profile." State ex rel. G.D., Jr. v. L.D., 894 P.2d 1278, 1284 (Utah Ct. App. 1995). Where the expert testimony is opinion testimony based on the witness's training and experience, Rimmasch is not applicable, "as there [is] no scientific process on which to apply such an analysis." Id.see also Salt Lake City v. Garcia, 912 P.2d 997, 1000-01 (Utah Ct. App.) (finding no error where trial court allowed testimony on result of field sobriety test without entertaining Rimmasch analysis, and court specifically informed jury this was not scientific evidence but rather was "part of the basis of the arresting officer's opinion that the defendant was under the influence"), cert. denied919 P.2d 1208 (Utah 1996)."

Washington

State v. Baity, 991 P.2d 1151 (Wash. 2000). In this case, the Supreme Court of Washington held that the DRE Protocol is a novel scientific test and must be analyzed under Frye. The court determined the protocol and the testimony of the officer were admissible, provided that all 12 steps of the protocol are used.

"In summary, after analyzing the DRE protocol and the approach of other courts to its admissibility, we hold the DRE protocol and the chart used to classify the behavioral patterns associated with seven categories of drugs have scientific elements meriting evaluation under Frye. We find the protocol to be accepted in the relevant scientific communities. We emphasize, however, that our opinion today is confined to situations where all 12 steps of the protocol have been undertaken. Moreover, an officer may not testify in a fashion that casts an aura of scientific certainty to the testimony. The officer also may not predict the specific level of drugs present in a suspect. The DRE officer, properly qualified, may express an opinion that a suspect's behavior and physical attributes are or are not consistent with the behavioral and physical signs associated with certain categories of drugs."

But see State v. Mashek, 312 P.3d 774 (Ct. App. Wash. 2013). In this case, the Court of Appeals held that the trial court acted within its discretion in excluding State's proposed drug recognition expert testimony on defendant's motion in trial on charge of driving under the influence of alcohol (DUI), which testimony was offered to explain the results of defendant's field sobriety tests as evidence of her intoxication, where State was given opportunity to explain proposed testimony's value but failed to show how expert testimony would have been helpful to jury in light of testimony from police officer who was trained in administering field sobriety tests and actually performed defendant's tests, instead providing only bare assertion that expert would have been “better” at explaining the tests than officer.

Wisconsin

State v. Chitwood, 879 N.W.2d 786 (Ct. App. Wis. 2016). In this case, the Court of Appeals of Wisconsin strongly endorsed the admissibility of DRE testimony. The court evaluated the use of DRE testimony under the Daubert standard, which was adopted by Wisconsin. In its opinion, the court laid out the twelve factors DREs consider, with a short explanation of each. The court established that the admissibility of such evidence is guided by Wisconsin’s parallel rule to FRE 702. The court then extensively describes the reliability of DRE testimony and therefore holds it to be admissible under the state’s evidentiary rule/Daubert standard. Based on the court’s strong endorsement of DRE testimony as reliable, the court upheld the defendant’s conviction.

City of Mequon v. Haynor, 791 N.W.2d 406 (2010) (unpublished). The defendant in this case did not directly challenge the scientific basis of the DRE testing. He argued that the testing was unreliable and the court disagreed. The court applied a simple relevancy test to the DRE evidence.


Statutes Regarding the Admissibility of DRE Testimony

Maine
29-A M.R.S.A. § 2525
2. Admissibility of evidence. If a law enforcement officer certified as a drug recognition expert by the Maine Criminal Justice Academy conducts a drug impairment assessment, the officer's testimony about that assessment is admissible in court as evidence of operating under the influence of intoxicants. Test results showing a confirmed positive drug or metabolite in the blood or urine are admissible as evidence of operating under the influence of intoxicants. Failure to comply with any provision of this section does not, by itself, result in the exclusion of evidence of test results, unless the evidence is determined to be not sufficiently reliable.

North Carolina
Rules of Evid., G.S. § 8C-1, Rule 702
(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:…(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.