Cases Affirming the Use of DRE Protocol and DRE Testimony

The chart below lists appellate cases that address the admissibility of the DRE Protocol and/or DRE testimony. Under the chart, there are case summaries for each of these cases. There are also additional case summaries in which appeals courts implicitly accepted the DRE Protocol and testimony, or are refinements of the lead case in the state. (Current as of July, 2016)


Case name

DRE Scientific?

New or Novel?

Frye/Daubert

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

No

Not Addressed

Daubert

Sakoc v. Carlson, 2015 U.S. Dist. LEXIS 60614

Yes but requires interpretation

No

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, 278 Neb. 903 (2009)

Yes

No

Daubert

Repinec v. Nevada, 2014 Nev. Unpub. LEXIS 930

Yes

No

Daubert

State v. Aleman, 194 P.3d 110 (Ct. App. NM, 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 (Or. Ct. App. 2000)

Yes

No

Daubert

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

No

Not Addressed

Unclear

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

Yes

Yes

Frye

State v. Chitwood,2016 WI App. 36

Yes but requires interpretation

No

Daubert

Federal

U.S. v. Everett, 972 F. Supp. 1313 (1997) DRE testimony is not governed by Daubert because it is not scientific in nature.
Based upon the foregoing, it is the DECISION and ORDER of this Court that, upon the appropriate foundation being laid, the Drug Recognition Evaluation protocol conducted by Ranger Bates, together with his conclusions drawn there from, shall be admitted into evidence to the extent that the DRE can 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. In other words, the otherwise qualified DRE cannot testify as to scientific knowledge, but can as to specialized knowledge which will assist the trier of fact to understand the evidence. (See page 10)

Florida

Williams v. State, 710 So. 2d 24 (Fla. Dist. Ct. App. 1998) The DRE Protocol in general is not scientific. However, 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. (See page 4)

Georgia

Baker v. State, 2014 Ga. App. LEXIS 317. The Court of Appeals upheld trial court’s conviction of a defendant who argued his arresting officer improperly expanded his traffic stop for a tag light violation, leading to his conviction on drug possession charges. The trial court denied his motion to suppress the drug evidence. On appeal, the court found that the arresting officer had reasonable grounds for suspicion which justified expanding his stop. Notably, the trial court cited the officer’s status as a drug recognition expert and his observations as such as a reason which, combined with other suspicious activity in the car, justified the expansion.

Indiana

Claywell v. Indiana, 2012 Ind. App. Unpub. LEXIS 180 (2012) The defendant in this case challenged the DRE Protocol on a sufficiency of the evidence argument. (It does not appear a trial objection was made to the DRE Protocol or testimony). The appellate court found the evidence presented, largely DRE, was sufficient to uphold the conviction.

Maryland

State of Maryland v. Consolidated Cases, 2012 Md. Cir. Ct. LEXIS 1. 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). Appeals Court 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. But, 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) The DRE Protocol is not new or novel scientific test under Frye.
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. (See page 7)
State v. Cammack, 1997 Minn App. LEXIS 278 This case supports the use of DRE protocol and testimony. 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.

State v. Scheffler, 2014 Minn. App. Unpub. LEXIS 1080. 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 case was not the only evidence and the evidence was more than sufficient to sustain the conviction.

Montana

State v. Pulliam, 378 Mont. 537 (2015). 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. 

New Mexico

State v. Aleman, 194 P.3d 110 (2008) 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. (See page 1)

Nebraska

State v. Daly, 278 Neb. 903 (2009). 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. Case cited positively in State v. Rothenberger, 2015 Neb. App. LEXIS 199.

Nevada

Repinec v. Nevada, 2014 Nev. Unpub. LEXIS 930. At issue was the admissibility of DRE test results in which not all of the steps were completed. Nevada Supreme Court has previously rejected a strict adherence to the Daubert evidentiary standard in order to give judges more flexibility as to what testimony they choose to admit. The DRE in this case performed all steps in the analysis except for blood or urine testing. Under Nevada’s relaxed evidentiary standard, the court said that since the rest of the testing was performed according to standardized and widely accepted procedures, the DRE could present an opinion as to the substance use of appellant without completing all twelve steps of testing. The court held that the lower court did not abuse its discretion in allowing the DRE’s testimony to be admitted into evidence and affirmed the conviction of the appellant.

New Jersey

State v. Vazquez, 2015 N.J. Super. Unpub. LEXIS 2487. Appellate court upheld the qualification of the DRE Expert and deemed his testimony to be reliable. The Court stated that his qualifications were in accord with other cases in which DRE certification was not challenged. The Court found that he was clearly qualified, given his training and experience, to testify regarding this defendant's impairment, the nature of the drug found in defendant's system, and the consequences of his ingestion.

State v. Zoppy, 2014 N.J. Super. Unpub. LEXIS 849. Appellate court upheld 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. Gonzales, 2016 N.M.App. Unpub. LEXIS 159. Officer’s testimony based on DRE training or experience was not lay opinion. Aleman established that a DRE must be qualified as an expert in order to testify about his or her observations, as informed by DRE training. The only proper basis for admitting Officer’s testimony was through qualifying him as an expert and laying an appropriate foundation for his opinion testimony. Such a foundation would have to satisfy the Daubert factors. The admission of the Officer’s testimony was not harmless error and therefore the evidence was insufficient to establish all necessary elements for a conviction.

New York

People v. Quinn, 580 N.Y.S.2d 818 (1991) DRE Protocol is a scientific test and used the Frye test to find that the evidence was admissible.  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" (See page 7)

People v. Ceravolo, 2010 N.Y. Misc. LEXIS 3112. The court concluded that it could not allow testimony about the horizontal gaze nystagmus (HGN) field sobriety test before making a proper determination as to its scientific merit and reliability. A prior case that could have been used to support the HGN test was reversed, so it was no longer available as support for the test. The HGN and VGN tests were admissible to show probable cause for defendant’s arrest, but without the scientific determination previously mentioned, they were not admissible at trial. The court did not make the necessary scientific determination in this case, and instead found other reasons to conclude that the arresting officer had probable cause to pull over, field test, and arrest the suspect.

Oregon

State v. Sampson, 6 P.3d 543 (Or. Ct. App. 2000) DRE Protocol is a scientific test and used 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. (See page 10)

But see Oregon v. Aman 194 Or. App. 463 (2004), the court refines Simpson by saying the the DRE Protocol requires the "corroborating evidence of the urinanalysis" to be complete and admissible.  Here, there is no evidence that the methodology employed--an 11-step DRE test without toxicological confirmation--generally has been accepted in the relevant field, has been used in a reported judicial decision, has a known rate of error, is mentioned in specialized literature, or is not a novel, even singular, employment in this state. To the contrary, 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. (See page 5)

State v. Burshia, 120 P.3d 487 (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 (2008) The case concludes that a DRE trainee is not qualified to give DRE testimony about the DRE Protocol.

State v. Hernandez, 206 P,3d 197 (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. Qy Fong, 204 P.3d 146 (2009) The defendant indicated at a pretrial hearing that he intended to object to DRE evidence at trial. He failed to do so, the evidence was admitted and the appellate court did not address it beyond noting this facts.

State v. Bayer, 211 P.3d (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.

State v. Rambo, 250 Ore. App. 186 (2012). Court held that if a proper foundation is laid for it, the results of an evidence-gathering technique that is a part of the 12-step DRE protocol is independently admissible.

State v. Wilson, 260 Ore. App. 286 (2014). Court held that an officer’s testimony that the officer observed signs of impairment in a defendant is admissible if the state establishes that the officer’s training and experience makes the officer qualified to detect those signs of impairment. The officer’s testimony was not scientific expert opinion evidence for which a foundation was necessary.

State v. Downing, 276 Ore. App. 533 (2016). Court upheld that a properly conducted and completed 12-step DRE protocol is scientific evidence and that an incompletely administered DRE protocol is not, itself, admissible as scientific evidence (citing State v. Sampson and State v Aman). 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 held that the trial court was not required to exclude all evidence that resulted from the incomplete 12-step DRE protocol.

South Carolina

South Carolina v. Martin, 391 S.C. 508; 706S.E.2d 40 (2011).  The Court 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 did a Frye/Daubert type analysis but did not cite directly to either case.

Utah

Utah v. Layman 953 P. 2d 782 (Utah App. 1998) The DRE Protocol 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. denied, 919 P.2d 1208 (Utah 1996). (See page 3)

Washington

State v. Baity, 991 P.2d 1151 (Wash. 2000) 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. (See page 8)

Wisconsin

City of Mequon v. Haynor, 791 N.W.2d 406 (2010). 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.
However, despite our skepticism, we reject Haynor's argument that the tests administered by Selk and Moertl are unreliable and the court erred in considering them. Our rejection of Haynor's argument is based primarily on the fact that the general standard for admissibility in Wisconsin is "very low." Id., P14. The keystone is simply relevancy. Id. The evidence is admissible if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." WIS. STAT. § 904.01. The reliability of the evidence is a "question of weight and credibility for the trier of fact to decide." Wilkens, 2005 WI App 36, 278 Wis. 2d 643, P23, 693 N.W.2d 324. (See page 8)

State v. Chitwood, 2016 WI App 36. Court held the lower court did not err in admitting the expert’s DRE protocol opinion testimony because the protocol, particularly as it related to identifying drug-induce impairment, was the product of reliable principles and methods, the error rate for determining some sort of drug impairment was acceptable, the protocol had been tested, published, and peer-reviewed, and it was widely accepted and in use in the law enforcement community. The Court also held the expert’s testimony was based on specialized knowledge and therefore Daubert did apply.

Vermont

Sakoc v. Carlson, 2015 U.S. Dist. LEXIS 60614. U.S. district court held that Vermont trial court decisions have agreed that DRE evidence, which includes certain standardized field sobriety tests (“SFSTs”), is admissible in the prosecution of a DUI charge. [State v. DuketteBetit, 161-2-10 Wmcr, slip op. *3 (Vt. Super. Ct. July 9, 2010) ("[T]his Court holds that DRE testing, if properly performed, is based upon reliable methods and principles and that V.R.E. 702 does not prohibit its admission [i]n this case."); State v. Pearo, 1226-10-09 Fncr, slip op. *6 (Vt. Super Ct. Jan. 4, 2010) ("[T]he Court . . holds that DRE testimony is scientific in nature and if properly performed, meets the Daubert standard."); State v. Lowe, 372-8-09 Ancr, slip op. *5 (Vt. Super. Ct. Nov. 24, 2009) ("[T]his court holds that DRE testing, if properly performed is the product of reliable principles and methods.") (internal quotation marks omitted).]