Drug Recognition Evaluators and Daubert
The Wisconsin Court of Appeals recently held that testimony from a police officer trained as a drug recognition evaluator (“DRE”) is based upon “specialized knowledge” subject to Wisconsin’s Daubert standard under Wis. Stat. § 907.02. State v. Chitwood, 2015AP97, ¶ 32 (Wis. Ct. App. Apr. 13, 2016). In its published decision, the court further held that the standard DRE protocol provides a “sufficiently reliable” principle and method to determine drug intoxication.Id. ¶ 52. Although the full DRE protocol was not conducted in this case, the appellate court nonetheless affirmed the admission of the DRE’s testimony concluding that the defendant was incapable of operating a motor vehicle safely due to his drug intoxication.Id. ¶¶ 21, 52.
In Chitwood, the defendant had four prior OWI convictions and was found bleeding at the scene of a single vehicle accident. Chitwood, No. 2015AP97, ¶ 3. Despite his obvious injuries, Chitwood appeared to be “very relaxed, almost lackadaisical” and it was difficult to understand his responses.Id. ¶ 4. Based off his training and experience as a crash reconstructionist, the responding officer investigated and doubted Chitwood’s explanation that the accident was caused by Chitwood dodging a squirrel.Id. ¶ 5. Adding Chitwood’s admission that he had taken oxycodone to his other observations, the responding officer arrested Chitwood for operating while intoxicated (“OWI”).Id. ¶ 6.
As a result of his OWI arrest, Chitwood’s blood was drawn to complete a drug panel. Chitwood, 2015AP97, ¶ 6. The blood draw revealed multiple narcotic analgesics and central nervous system depressants. Id. ¶ 8. While one of the drugs was at therapeutic levels, another was above therapeutic levels, and a third was open to multiple interpretations.Id. The State’s toxicologist testified that there was a “high probability” that the “average person” would not be able to operate a vehicle safely with the reported drug levels, but she also acknowledged that a person with “a very good tolerance to these drugs” could possibly “handle” the levels in Chitwood’s blood.Id. ¶ 10.
The State’s final witness was Nathan Peskie, a deputy sheriff who had completed the 80 hours of DRE classroom training and 40 hours of field certification in 2007.Chitwood, 2015AP97, ¶ 11. After a voir dire and over the objection of defense counsel, Peskie testified that based upon his DRE training and experience, he believed that Chitwood was under the influence of drugs which rendered him incapable of safely operating his motor vehicle. Id. ¶ 34. The defendant contended that not only was the DRE protocol not sufficiently reliable to produce such an opinion, but that Deputy Peskie had in fact only completed a partial test which rendered the results completely unreliable.Id. ¶¶ 25-26. In response, the State argued that Deputy Peskie’s training included scenarios where only a partial evaluation could be conducted, and it was common for the DRE to not use all 12 steps of the DRE protocol.Id. ¶ 14.
The circuit court found that the opinion was not “expert scientific testimony” and therefore Daubert did not apply. Instead, the circuit court analogized DRE testimony to police officers offering subjective factual opinions regarding field sobriety tests (“FST”) and concluded that the defendant’s criticisms should go to the weight of the testimony, not its admissibility.Id. ¶ 17. The jury convicted and the defendant appealed. Id. ¶ 24.
The Wisconsin Court of Appeals affirmed on other grounds by finding that the circuit court erred in failing to apply Daubert to Deputy Peskie’s testimony. Chitwood, No. 2015AP97, ¶ 34. The court found that Deputy Peskie’s DRE training constituted “specialized knowledge” that was subject to Daubert. Id. The court then reiterated the Daubert standard which permits expert witness testimony when:
- The testimony is based upon sufficient facts;
- The testimony is the product of reliable principles and methods, and
- The witness has applied the principles and methods reliably to the facts of the case.
Applying this standard to the case, the court conducted an extensive review of the development of DRE protocol and the various research demonstrating that DRE protocol was highly successful (approximately 80%-94%) in detecting drug-induced impairment generally, while much less successful in discriminating between the various drugs that caused the impairment. Chitwood, 2015AP97, ¶¶ 35-44. Ultimately, the court concluded that the DRE protocol is a sufficiently reliable principle and method to determine drug intoxication. Id. ¶ 44.
Even assuming the DRE protocol was reliable, defense counsel alternatively argued that the State failed to show that an incomplete DRE protocol is capable of producing such a reliable result. Chitwood, No. 2015AP97 ¶ 44. Here, the court reviewed the various tests that Deputy Peskie was able to conduct and noted that there may be frequent impediments to conducting a complete DRE protocol. Id. ¶ 46. The court also noted that police officers routinely opine regarding a defendant’s ability to drive safely based on personal observations and behavior – which was part of the DRE protocol. Id. Based on the vitals testing and other tests he conducted, Deputy Peskie had “sufficient” evidence to “reliably conclude that Chitwood was behaviorally impaired by drugs.”Id. ¶ 49. Regardless of whether a full DRE protocol would have been “more reliable,” the court was satisfied that Daubert was met and any deficiencies would go to the weight of the evidence and create fodder for cross-examination. Id.
As it stands, Chitwood provides two important takeaways. First, the court found that DRE testimony is subject to a Daubert analysis because it is “specialized knowledge.” This finding is not only a departure from the circuit court’s ruling, but also could be viewed as a departure from the traditional view that police officers may offer subjective factual opinions on impairment. In the OWI context, testimony regarding FSTs has been deemed only an observational tool and not “scientific” and therefore not subject to expert testimony requirements. However, the historical FST decisions were handed down before the legislature adopted Wis. Stat. § 907.02 and the Daubert standard in 2011. The Chitwood decision could be used to argue the “specialized knowledge” standard creates a broader application of Daubert in both the OWI context and to opinion testimony generally.
Secondly, the Chitwood court affirmed the admissibility of the DRE testimony despite the fact that the full DRE protocol was not conducted, and the State (or court) failed to point to any studies regarding the reliability of partial DRE tests – instead only relying on research of results from tests of the full DRE protocol. Arguably, this is a quite liberal application of whether an accepted principle or method has been reliably applied to the facts under the Daubert standard. This analysis highlights how distinguishing between subjective factual opinions and expert opinion subject to Daubert is no easy task. This holds especially true when the principle or method calls for the subjective factual opinions of the witness – like the DRE protocol. Although its practical effect remains unclear, Chitwood stands for the proposition that DRE training constitutes “specialized knowledge” subject to Daubert, and that standard will be construed to permit expert opinion testimony relying on less than the full DRE protocol.