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.