Nebraska Supreme Court Decision says DRE meets Daubert!

http://www.supremecourt.ne.gov/opinions/2009/november/nov20/s08-192.pdf
 
State of Nebraska, Appellee v. Jacob J. Daly, Appellant
Filed November 20, 2009, No. S-08-192

Marcie Hagerty, formerly a Deputy County Attorney with the Lancaster County, Nebraska, County Attorneys Office, reports that the Nebraska Supreme Court ruled that DRE meets the Daubert standard.

In part, the court wrote: "A law enforcement officer with the training and experience offered by 'drug recognition expert' certification is sufficiently qualified to testify, based on his or her evaluation, that a suspect was under the influence of drugs."

Congratulations to Marcie Hagerty, Officer Jesse Hilger, the DRE in the case, and the expert witnesses who testified in support of DRE. (Expert witnesses were: Karl Citek (optometry), Zenon Zuk (medical doctor), Michelle Spirk (toxicology), and me.)

Certification training in Miami Beach, FL, November 6, 2009

On November 6, 2009, I had the honor of meeting with DREs and DRE Candidates from South Florida at a certification training event in Miami Beach, FL.  Sergeant Luis Taborda of Miami PD supervised and conducted this event.  Luis is to my immediate right.  I gave a short overview of the history of the DRE program and discussed the development of some of the certification steps.  We also discussed situations in which an officer is unable to conduct the classic 12 steps of the evaluation process, and how this is not necessarily fatal to the case.  The key point I made was that if some of the steps are missing, the DRE must still reach the same level of certainty as he/she would in a full evaluation.

My complements to Luis for the professionalism and leadership he showed during this training.

Drug Category versus calling a specific drug question

In response to a discussion on the Impaired Driver forum.....

This discussion was initiated by an inquiry from one of the true mainstays of Drugged-driver prosecution, Susan Glass, the Traffic Safety Resource Prosecutor of Missouri.  Susan asked:

"Has anyone ever successfully tried a DWI-drugs case where the only evidence of the presence of a controlled substance in the defendant's blood was the testimony of a DRE that he was impaired?"

"I'm assisting on a case where the sole evidence of drug use is DRE testimony that the subject was impaired by cannabis and a CNS depressant. We have no toxicology, no admissions regarding drug use, and no other manifestations of use (i.e. odor, puncture or track marks, drugs/ paraphernalia in the car). We now have to convince the court that the DRE testimony alone is sufficient to sustain a conviction. Any case law on the issue would be much appreciated, thanks!"

Steve Talpins, also a mainstay, responded:

"Does your law require you to prove a specific drug or drugs? If so, I do not believe your case is provable without something allowing you to specify the substance (ie. odor, presence of cannabis, drug paraphernalia, toxicology, anything). DREs call categories, not specific substances. I'm cc'ing these guys and asking DREs to comment on this as well."

At that point I responded.  This is a very common issue.  In fact I have written on this in the past.  Here's my response:

In California DREs have historically identified the specific drug, rather than just the category. This has been the case in arrests and investigations for 11550 Health and Safety Code. This law, sometimes referred to as "internal possession," prohibits use and/or being under the influence of specified controlled substances, not just a category of drugs. This law has nothing to do with driving. Neither does it have anything to do with a "public place." Historically, it was designed to break the cycle of addiction. And also historically, California courts have ruled that someone can be prosecuted for 11550 H&S (e.g., "under the influence of cocaine") and for DUI-drugs, "under the influence of a CNS Stimulant." The determination by the officer that the specific drug is cocaine, rather than just a generic CNS Stimulant is based upon many factors,including signs of ingestion, knowledge of drug trends in the community, suspect's statements, drugs and paraphernalia possessed, etc. Usually (again historically), the officer's opinion states that the signs and symptoms exhibited by the suspect were consistent with cocaine (or the specific drug in question). Decision about prosecuting understandably awaits the toxicology report.

By the way, I discuss this when I'm asked to present on the history and development of DRE. There was already an expertise and acceptance of officers making under the influence of drugs arrests in Los Angeles prior to DRE. I believe that DRE became accepted in Los Angeles first because of this.


And yes, Susan, there have been many cases in which individuals have been convicted of DUI-drugs without supporting toxicology. There have also been cases in which convictions have resulted even though toxicology was negative. I can refer you to the, Los Angeles City Attorney's Office (Ellen Sarmiento or Dan Jeffries if you want specific information.

Steve then asked me if this was unique to California.  My response:

I think that Nevada, for one, has a similar law.

Yes, the officer must be able to articulate why he/she concludes that the person is under the influence of a specific drug, and not just a category. It's usually not that difficult. And frankly, there is almost always corroborating evidence in DRE cases, such as an admission, possession of the drug itself, paraphernalia that is usually used with one specific drug, methods of administration (Eg many fresh puncture wounds point to a short-acting drug such as cocaine), duration of effects (A four hour duration surely points to heroin much more than extremely short-acting fentanyl), and much more. Again, the officer must be able to convincingly articulate why he concludes that it is a specific drug. And that conclusion is based on a lot more than solely the presenting signs and symptoms. And if that conclusion is supported by toxicology (cocaine corroborated by benzoylecgonine for example), well, what's the defense!

As I think about this issue, I suspect that DREs world-wide,and not just California, would be able to identify the specific drug, and not just the category, with a high degree/percentage of corroboration. My guess - 80%.

I was in a south Florida supermarket the other day - Publix - when I saw a young lady - probably 25 but aged like she was 40, with pimples, stringy hair, grossly underweight, shabby clothes that were too big, bad teeth, jerky movements. CNS Stimulants certainly. I think it's reasonable to conclude that it wasn't just too many lattes that caused her appearance and behavior. I'd certainly suspect methamphetamine. In fact, this person looked at me while I looked at her, and high-tailed it out of the store without making a "purchase." I relate this little story to emphasize that DRE determinations are based on the totality of observations, and not solely the DRE procedure itself.

In 1995, the Royal Canadian Mounted Police hosted the first Canadian DRE School in British Columbia. (See prior blog entry.) After successfully completing the classroom phase of the training, students entered into the certification phase of the training. Much of the certification training was conducted in Los Angeles at the Parker Center jail. Many of the Canadian officers wore their local uniforms while they conducted evaluations. As you can imagine, more than one intoxicated suspect expressed surprise that he was now in Canada! And in typical police humour (Canadian spelling), we posted the Canadian Maple Leaf flag next to the breath testing instruments!

This picture, which includes me on the right, was taken in front of Parker Center, more formally known as the Police Administration Building. This facility, known to suspects and good-guys alike as “The Glass House,” was closed in October of this year. At this writing, the jail remains temporarily open until a new jail is ready for full occupancy (hopefully!). As one wag said, “A full jail is a happy jail.”

The Canadian officers took the “Systematic and Standardized” DRE mantra to heart. As an example, the Canadian officers began giving “Miranda” warnings to suspects in Canada! When I reminded the officers that “Miranda” was an American procedure, one Canadian officer told me that because of the infiltration of American television north of the border, all Canadians know about “Miranda,” and that suspects routinely ask officers to “read me my rights."

DRE Flashback: Certification, continued

Certification Progress Log

The development and adoption of the Certification Progress Log itself by the LAPD DRE Unit was a response to a problem.  In the late 1980s the DRE program began to grow rapidly.  As it grew, it was increasingly difficult to determine which candidate DRE was approaching readiness for certification.  For one thing, it was time-consuming for the DRE Unit to research the records, including the number of evaluations, on each candidate. Also, candidate DREs often didn't have a good idea of where their progress toward certification stood. We adopted the philosophy that was being used in the training of LAPD probationary police officers: that the candidate DRE would maintain a log of his/her progress, and that this log would be presented to DRE instructors at each certification event.  Not only did this help the candidate DRE, it helped the instructor to more adequately assess the candidate's progress.

The first Certification Progress Log was printed on an old dot matrix printer!  Remember those?  Over time, as standards developed, the progress log was modified to incorporate these new standards.

DRE Flashback: Certification, continued

In September I blogged that DRE certification initially came from the prosecution division of the Los Angeles City Attorney's Office. Simply, LA prosecutors wanted to be confident of the DRE's expertise before attempting to qualify the officer as an expert in court.  Certification was a means to that end. 

In fact, most of the standards and milestones of the DRE certification process were developed as a practical response to problems and issues. Did you ever wonder why two DRE instructors must sign off on the Certification Progress Log?  Back in the late 1980s, the signature of only one DRE instructor was required.  Two situations caused the LAPD DRE Unit to change it.  (By the way, in the late 1980s the LAPD DRE Unit consisted of  the inimitable Sergeant Dick Studdard, Officer Gary Tetzlaff, and Sergeant Tom Page, yours truly!) The first situation was simply a disagreement between the three of us regarding the readiness of an officer for certification. In the second situation a DRE instructor signed-off on a candidate DRE.  Before the candidate submitted his progress log for certification the DRE instructor telephoned me and confided that he was really wasn't confident of the candidate's readiness for certification.  I recall that Dick, Gary and I had a fairly animated discussion regarding this issue.  After considering some other options, such as requiring that the DRE instructor be of a supervisory rank, Dick suggested that requiring a two instructors sign-off would ensure  the quality control we were seeking.  There was no Technical Advisory Panel at the time so there was no mechanism for a review.  We just made the change by fiat!

In my opinion, the two instructor sign-off requirement is the most important milestone in the DRE certification process.  The candidate DRE must seek the recommendation of experienced DRE instructors. By signing his or her name to the progress log, the DRE instructor affirms that the candidate has sufficient expertise to be welcomed into the DRE community. This process is very similar to what I experienced in my graduate education.  In order to complete my Master's program, I went before a board of three professors who challenged my thesis and peppered me with questions. Only when all three professors approved me did I complete the program.  Very similar to the DRE process. 

First Canadian DRE School, 1995, Students

In my estimation, this landmark school would not have happened were it not for the relentless perseverance of Wayne Jeffery.  Wayne, an eminent Royal Canadian Mounted Police toxicologist based in British Columbia, laid the groundwork for this class by working directly with the LAPD DRE Unit.  Wayne attended the full DRE class in Los Angeles in 1991. 

I served as the lead instructor for this school.  The instructors were chosen not only for their knowledge, but for their ability to adapt the curricula to the Canadian legal environment.  For example, we converted the measurements used in the DRE process to the metric system.  Constitutional and Charter Rights issues also required some curricula adaptation.

This class picture, including instructors Rob Bustrum, Clark John, and me, was taken inside the RCMP training facility.  Canadian DRE coordinator Evan Graham is to Clark John's right.  Evan later became the chair of the DRE Section of the International Association of Chiefs of Police, the regulating body for the DRE program.  Some of the other students pictured are toxicologists Heather Dinn, Jeff Coughlin, Mike Anselin and Rick Ulrich, constables Beth Blackburn, Doug Ferguson, Jim Paquette and Paul Milne.

New York Times covers DRE in 1989

On September 25, 1989 the New York Times published an article about the growing problem of drugged-driving.  The article included a discussion about the merits of the Drug Recognition Expert program.  The graphic for the article showed LAPD Motor Officer and DRE Instructor Ray Messerly as he conducted a pupil size examination on me.  Officer Steve Davey of the Glendale, CA, PD is to my right.  Ray Messerly, who was my LAPD academy classmate, was killed in an on-duty traffic crash on October 22, 1992.  Ray's picture is included in the "Roll Call" which takes place at the annual DRE conference.

First Canadian DRE School, 1995, Instructor cadre

In October of 1995 the Royal Canadian Mounted Police in Vancouver, B.C. hosted the first DRE school held outside of the United States.  This school used the accelerated format developed by the LAPD DRE Unit.  It combined the SFST course, DRE pre-school and the DRE school itself into a unified 10-day course.  This picture shows the instructor cadre in front of the Fairmont Academy.  From left to right: Bryan Schafer (Minneapolis PD), Clark John (LAPD), Clarence Metcalfe (LAPD), Rob Bustrum (Boulder, CO, PD), Wayne Jeffery (Toxicologist, RCMP), Thomas Page (LAPD), Douglas Paquette (New York State Police), Steve Willis (Glendale, AZ, PD), and Arthur Haversat (LAPD).

First DRE Checklist - from 173 case study

DREs use a 12 step checklist to conduct the drug influence evaluation. The checklist helps to ensure standardization of the process. The first checklist, however, consisted of 21 steps! This checklist was created to conduct the landmark 1985 173 case study, formally titled the Los Angeles Field Validation Study. This checklist was developed with the oversight of Marcelline Burns, Ph.D, the director of the Southern California Research Institute. As you can see, the DRE procedures, including terminology, have changed since this study was conducted.

First DRE School out of California, July 1988

In July of 1988, Phoenix, Arizona (hotel rates are quite reasonable in July!) hosted the first DRE school held outside of California.  The school was held at the Pointe at Squaw Peak.  This picture includes this landmark school's instructors and students.  Jack Oates, wearing white slacks in the front row, was the NHTSA representative.  Jack created the schedule and made instructor assignments.  I am to Jack's right, next to Dick Studdard. 

September 1987 NHTSA press release announces expansion of DRE

On September 29, 1987, U.S. Secretary of Transportation Elizabeth Dole announced grants to the LAPD and to the IACP to expand the DRE program out of Los Angeles.  The grants were announced in this NHTSA press release.  In July of 1988 the first DRE school to be held out of Southern California was conducted in Phoenix, Arizona.

1987 Los Angeles DRE School - first to use NHTSA curriculum

This is a picture of the students and instructors who participated in the 1987 DRE school in Los Angeles. I'm pretty certain that this was the first DRE school that used the new NHTSA curriculum. The class was held at the Los Angeles Armory near the LAPD Academy. Many famous DREs are in this picture. Dick Studdard is in the middle of the front row. I am to Dick's left. On my left is Mike Murray and then Art Haversat. To Dick's right is Gary Tetzlaff, Bob Hohn (now with NHTSA), and City of Los Angeles psychologist (and DRE instructor), Patrick Prince.  Joe Klima, now a Phoenix PD Commander, is in the 2nd row, third from the left. Cliff Vanell (Phoenix Prosecutor's Office) is directly behind Joe.

First DRE Instructor School

Here is a class photo of the very first DRE Instructor's school. Jack Oates from NHTSA (3rd from the left, 1st row) was the lead. I am to Jack's right. Dick Studdard missed the picture as he had a meeting. I'm pretty sure the date of the picture was early 1987.

A number of famous DREs are in this picture, including Clarence Metcalfe, Greg Nichols, Gary Tetzlaff, Art Haversat, Mike Murray, Phil Rodriguez, Jim Stoney, Bill Walker, Milt Dodge, Craig Peters, Sonny Medina, Tom Page (all LAPD), Steve McAndrews (Long Beach PD), Tom Winterstein, Doug Paquette, Al Brown (all New York State Police), Derald Gautier, John Burbach (both Denver PD), Bob Sparks, Joe Klima (both Phoenix PD), Mike Hayes (Nassau County PD), Ken Clark (Virginia State Police), Ken Lantaigne (Virginia Beach PD), Rob Bustrum (Boulder, CO, PD, Scotty Coulimore (Colorado State Patrol), John Rydel (California Highway Patrol), and others.

The purpose of the class was to introduce us to the first NHTSA DRE curricula package. All LAPD instructors had already completed instructor development courses sponsored by the LAPD. This class picture was taken at the Long Beach, CA, Police Academy. The LBPD hosted this course. Enjoy.

173 case study participants

DREs know about the significance of the landmark 173 case study, formally known as the Los Angeles Field Validation Study. The study was conducted in 1985 by Dr. Marcelline Burns of the Southern California Research Institute, the Los Angeles Police Department, NHTSA and the Governor's (California) Office of Traffic Safety. But who were the officers involved in actually doing the study? This picture of the study's participants was taken at an LAPD awards ceremony on February 4, 1987. The study's participants were awarded the Police Meritorious Unit Citation for "...outstanding service by members functioning as a team." Chief Daryl Gates is seated in the middle. To his right is Hollywood actor Richard Anderson. To the Chief's left is Dick Studdard. I am in the back row, second from the right.

The recipients of the Police Meritorious Unit Citation are:
Lt. Daniel Watson, Sergeant Richard Studdard, Sergeant Arthur Haversat, Sergeant Jerry Powell, Sergeant Thomas Page, Sergeant Jeffrey Siggers, Sergeant Leslie Wilbanks, Officer Joeseph Beck, Officer Patricia Russell, Officer Robert Carlson, Officer Larry Ferrel, Officer David Gray, Officer Ian Hall, Officer John Hone, Officer Don Hutchingson, Officer Clark John, Officer Robert Karlstrom, Officer Baron Laetzsch, Officer Charles "Doug" Laird, Officer Ralph McComb, Officer Michael Murray, Officer Eugene Nabonne, Officer Scott Sherman, Officer Gary Sidell, Officer James Stoney, Officer John Tanner, Officer Geoffrey Taylor, Officer Arvin Turner, Officer Larry Voelker, Officer Michael Widder, and Officer Richard Zielinski. 

Of course, this study could not have been done without the continued cooperation of the drug users themselves!

DRE Flashback: Certification

DRE Flashback: Certification.
The International Association of Chiefs of Police issues certification credentials for Drug Recognition Experts. The actual certification comes from the state/provincial coordinator. But it wasn't always like this. Before the IACP became the credentialing body for DREs, DREs were certified by the Los Angeles Police Department. In fact, the first Arizona DREs (Bob Hohn, Bob Holliday, Bob Sparks and John Patla) were initially certified by the LAPD. Prior to the LAPD issuing certification, Los Angeles DREs were certified by the Prosecution Division of the Los Angeles City Attorney's Office. A list of officers who had completed drug influence training was submitted to the City Attorney's Office, accompanied by complete resumes. The City Attorney's office then compiled a list of officers that were "certified," and used this list to determine which officers they would be willing to attempt to qualify as experts in court. Once qualified as an expert in court, the officer was considered to be a  "court-qualified expert."  So, as you can see, the DRE program has a long history of working closely with prosecutors.