{1} In this opinion, we deal with a DUI prosecution in which Defendants ingested drugs rather than alcohol. We address the admissibility of the expert opinion testimony of a Drug Recognition Evaluator (DRE) regarding a 12-Step Protocol (Protocol), which is a process designed to enable law enforcement to identify (1) whether a subject’s ability to operate a vehicle is impaired and (2) which category of drugs has affected a subject. 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 becausе the State established a sufficient scientific foundation for the Protocol under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
I. BACKGROUND
{2} Miriam Aleman and Alberto Valenzuela (Defendants) were arrested on separate occasions for driving under the influence of intoxicating liquor or drugs. In both cases, the arresting officers called a DRE in order to evaluate Defendants because they tested negative for blood alcohol content while showing other signs of intoxication and impairment. After Defendants were evaluated using the first ten steps of the Protocol, the DREs reached an opinion that Defendants
{3} In relevant part, Defendants were charged under NMSA 1978, Section 66-8-102(C) (1999) (amended through 2007) for driving while under the influence of intoxicating liquor or any drug. Both Defendants filed motions to exclude the testimony of the DREs because the DREs did not qualify as scientific experts. The State filed a motion to consolidate the Daubert hearings for the two proceedings, and the district court held a consolidated Daubert hearing. Following the hearing, the district court entered an order denying Defendants’ motions to exclude the testimony of the DREs. Defendants entered conditional guilty pleas and now appeal their convictions, claiming that the district court erred in admitting the DREs’ testimony.
II. DISCUSSION
{4} Rule 11-702 NMRA states that “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” In Daubert, the United States Supreme Court developed a standard for the admission of expert testimony under Federal Rule 702. The “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but rehable.” Daubert,
{5} In the present case, the district court concluded that the DREs could testify as experts based on their specialized knowledge regarding the Protocol in order to establish “whether the driver[s] w[ere] impaired by the use of drugs at or near the time the driver[s] w[ere] driving the motor vehicle[s].” Defendants contend that the State laid an insufficient foundation to establish the reliability of the Protocol under the requirements of Daubert. Specifically, Defendants argue (1) that the testimony of the State’s scientific witnesses failed to establish the Protocol’s validity and reliability; and (2) that the DREs, who testified about the application of the Protocol, did not qualify as scientific experts. Valenzuela further argues that the DRE in his case failed to properly perform the Protocol and, as a result, the evidence was not admissible even if the proper foundation was laid. The Stаte responds by arguing that the Daubert analysis does not apply to the Protocol because it is not scientific knowledge. We consider each argument in turn, and we begin by considering the threshold questions of whether the Protocol is scientific knowledge, and whether the Daubert standard is applicable.
A. Scientific Knowledge
{6} Rule 11-702 permits experts to testify based on “scientific, technical or other specialized knowledge.” Our Supreme Court has explained that the “application of the Daubert factors is unwarranted in eases where expert testimony is based solely upon experience or training” and not scientific
{7} The Protocol consists of twelve steps: (1) a breath alcohol test (BAT); (2) an interview of the arresting officer; (3) a preliminary examination to look at the suspect closely and search for an explanation for any observed impairment; (4) an eye examination, which includes horizontal gaze nystagmus test (HGN); (5) divided attention psychophysical tests, which assess whether a subject can perform two or more tasks at the same time; (6) taking an assessment of vital signs; (7) a dark room examination of the size of the pupils, the reaction of the pupils to light, and a cheek for evidence of ingestion of drugs around the nose and mouth; (8) examination of muscle tone; (9) an examination for injection sites; (10) a confrontation with the suspect, advancing the DRE’s opinion regarding the category of drugs affecting the suspect; (11) documentation of the DRE’s opinion; and (12) confirmation of the DRE’s opinion by toxicology. The district court permitted the State to present testimony from the DREs that the Protocol established (1) that Defendants had drugs in their systems; and (2) that the drugs impaired Defendants’ ability to operate a motor vehicle.
{8} Courts in other jurisdictions have taken different approaches to the question of whether the Protocol is scientific knowledge. The State encourages this Court to emulate the Supreme Court of Minnesota in State v. Klawitter,
{9} We agree with Klawitter and Everett that many of the individual steps of the Protocol can easily be identified as non-seientific. For example, the following steps are based solely on observation: the officer’s interview, the preliminary examinаtion of the suspect, the assessment of vital signs, and the examination for injection sites. Based on training and experience, the DREs use these observations to document the physical signs that a person is impaired and to establish parameters for the toxicological tests, which will ultimately confirm the presence of a particular substance in the subject’s system. The Protocol in its entirety is not scientific because some of the steps the DREs perform merely document a series of observations of “the common physical manifestations of intoxication,” and these symptoms are self-explanatory. Torres,
{10} We are also persuaded by the reasoning in Williams. However, some of the individual steps of the Protocol are scientific processes and therefore require a scientific foundation. We observe that our Supreme
{11} In State v. Lasworth, this Court considered the admissibility of HGN testing in the context of impairment by alcohol and stated the following:
[I]n order to lay a foundation for the admission of the arresting officer’s statement that [the defendant was under the influence of alcohol or another central nervous system depressant, the State was required to establish two predicates: first, that the HGN FST is a scientifically valid means of discriminating between BACs below 0.08 percent and those at or above 0.08 percent; and, second, that a BAC at or above 0.08 percent correlates with diminishment of [the defendant's mental or physical driving skills.
{12} The State offered the testimony of Karl Citek, an optometrist, and Sarah Kerrigan, a forensic toxicologist, in order to establish the required physiological relationship between HGN and impairment, as well as between HGN and a particular category of drugs. Dr. Citek gave the following testimony:
There are ... two aspects of the eyes that the DRE evaluates. One is eye movements, and the other is the pupil’s reaction to light.
Drugs that will affect eye movements, the ability to track a target smoothly, the ability to maintain fixation, keep a stable gaze, those drugs typically fall into categories known as central nervous system depressants, inhalants and phencyclidinе.
On the other hand, drugs that form— that typically affect pupil size fall into the categories of central nervous system stimulants, hallucinogens, cannabis and narcotic analgesics.
[A]s far as control of eye movements and pupil reactions are concerned, the effects that drugs — that impairment drugs have— are not necessarily, and very often, not on the muscles that make those particular eye movements or change the pupil, not on the muscles directly, but rather on the nerve control centers that innervate those muscles.
Thoseare the control centers that also control our normal physiology, our respiration, our heart rate. They gather information from the very sense organs, so it’s very basic functioning, very — absolutely necessary functioning to work perfectly, so that you can survive and live normally.
Various of those nuclei, or nerve control centers, are specific to controlling eye movements and controlling pupil sizes. The drugs that will affect that part of the brain, the brain stem, specifically, have different effects on those different nerve control centers.
And then, depending on how that innervation changes, if the innervation is increased or decreased, that will affect the resulting eye movements, or will affect the resulting pupil sizes.
{13} Dr. Kerrigan testified that the HGN test results “help [toxicologists to] evaluate the likelihood that a person is under the influence of a substance.” We are satisfied that the testimony presented established a physiological link between different HGN test results and the presence of certain categories of drugs in a subject’s system.
{14} Dr. Citek explained that drugs from different categories affect pupil size and eye movement differently, and HGN is therefore a reliable means of narrowing the range of drugs by which a suspect is likely to be impaired. His testimony adequately demonstrated that certain HGN test results correlate with the brain’s ability to process information. He testified that a subject’s eyes provide insight into how the brain is reacting to the presence of drugs or alcohol. The nerves that dictate eye movement and pupil size also control “our normal physiology, our respiration, our heart ratе.” For example, he explained that when a subject’s eyes “seem to ratchet and move ... quickly, ... as opposed to moving smoothly,” it is indicative of “a problem at the level of the brain in the brain stem and in the cerebellum.” He then related this physiological data to his observations of intoxicated persons, and how “they’re not able to move their eyes separately from their heads.”
{15} We also note that the State offered the testimony of the same witness, Marcel-line Burns, who had testified unsuccessfully in Lasworth. We are not persuaded that Dr. Burns’ qualifications have changed significantly since Lasworth, when she “conceded that she herself had not conducted studies or experiments to determine how and why alcohоl causes HGN and that her understanding of the mechanisms that produce HGN was based upon her review of the published results of studies by other researchers.” Id. ¶ 17. Despite her inability to explain the physiological relationship between HGN and impairment, we consider relevant and reliable her testimony regarding the visible signs of impairment and its correlation to HGN results. She testified that she had conducted many laboratory studies, which examined the effects of alcohol and drugs on performance in a driving simulator. In one study regarding only alcohol impairment, she concluded that HGN was “almost as good as the entire test battery[;] the presence of the jerking of nystagmus was simply the most sensitive index.” Based on her personal research, shе further concluded that there was no better test than HGN to determine whether a driver is impaired by drugs.
{16} We are satisfied that the testimony of Drs. Citek, Kerrigan, and Burns explains the relationship between certain eye movements and impairment by drugs or alcohol. As a result, the State laid an adequate foundation for the admission of HGN test results to establish the presence of a certain category of drugs, and to show that Defendants’ ability to operate a motor vehicle was impaired.
B. Other Specialized Knowledge
{17} Although consideration of the Daubert factors as applied to the entire Protocol is unnecessary, we continue our analysis to determine whether the proper nonscientific foundation for expert testimony was laid under Rule 11-702. The State was required to establish that (1) the experts were qualified, (2) the testimony will assist the trier of fact, and (3) the testimony relates to scientific, technical, or other specialized knowledge. Alberico,
{19} The DREs’ testimony is helpful to the trier оf fact because although many jurors might be familiar with the individual symptoms that the DREs observed, “we doubt that a typical juror would have had the detailed information” about the correlation between these observations and a particular category of drug. State v. Hueglin,
{20} Defendants also argue that because the DREs’ testimony is nothing more than lay opinion testimony, it is unfairly prejudicial under Rule 11-403 NMRA to “cloak such a guess under the guise of ... expertise.” Rule 11-403 prevents a party from offering evidence if the probative value of the evidence “is substantially outweighed by the danger оf unfair prejudice.” Our Supreme Court has explained that “[u]nfair prejudice ... refers to evidence that tends to suggest decision on an improper basis.” State v. Anderson,
C. Daubert
{21} Defendants argue that the trial court implicitly made the initial determination that the DREs’ expertise was scientific in nature and that the court therefore held a Daubert hearing. Even if we were to agree with the trial court’s evaluation of the Protocol as scientific in nature, we would still affirm because our review of the evidence presented during the hearing supports the trial court’s conclusion that the evidence was admissible. See State v. Sampson,
(I) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known [or] potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field.
Torres,
1. Testability
{22} The first factor considers whether a technique can be tested. The focus of this factor is not whether tests have shown that a technique works or is successful, but whеther there are methods that subject the technique to scientific scrutiny. See Lee v. Martinez,
2. Peer Review and Publication
{23} The second factor requires a technique to have been subjected to peer review or publication. Again, Lee is instructive. “We arе only looking at whether the scientific technique has been subjected to peer review and publication, not the validity of the scientific research or the scientific community’s response to the research.”
{24} The district court found that the Protocol has “been published to include peer-reviewed publications.” The State cites to one peer-reviewed study and two other studies, which were apparently not published in a peer-reviewed journal. Aleman directs our attention instead to a study (Hlastala Study) that evaluates the studies cited by the State. Defendant uses the Hlastala Study to question the accuracy and neutrality of the earlier studies. In Anderson, our Supreme Court faced a similar situation in which “many of the articles [had] not been published in a ‘peer-reviewed journal’ in the strict sense of that term.” Id. Nevertheless, the Court acknowledged that the trial court found that “techniques received adequate scrutiny through presentations at scientific conferences, workshops and other forums for the exchange of ideas and through the dissemination of unpublished and non-peer-reviewed writings.” Id. (internal quotation marks omitted). As a result, the Anderson Court concluded that the “techniques [hаd] been subjected to peer reviews and publication” and that the Daubert factor was satisfied. Id. at 298,
3. Standards and the Rate of Error
{25} The third factor considers the existence of standards to control the operation of the technique and the rate of error for the technique. In Lee, our Supreme Court considerеd the existence of standards for the polygraph examinations. The Court concluded that polygraph examiners underwent extensive training and certification, and that Rule 11-707 NMRA and the American Polygraph Association had established standards for the application of polygraphs. Lee,
{26} Lee explains that the rate of error factor is required in order to establish that the technique provides “evidence that ... has a tendency to make the existence of a fact more or less probable than it would be in the absence of the evidence.” Id. ¶ 35. We observe that the rate of error discussed in subsequent paragraphs is the rate of error for the DRE’s opinion as to whеther the subject is impaired and by which category of drugs. The error rate is not related to the confirmation of results by toxicology.
{27} There is some dispute about the rate of error. One study reveals that the DREs were accurate in identifying at least one drug in more than ninety percent of evaluations. In cases in which more than one category of drugs was present in the subject’s system, the State claims that toxicology confirmed the DREs’ opinion regarding at least one drug in 83.5 percent of the evaluations. Defendants argue that these statistics are inflated because the calculations ignore the number of false negatives. For example, during the course of one study, the DREs incorrectly judged five percent of the cоntrols to be intoxicated, while those subjects were given only placebos. Defendants contend that the success rate does not account for these failures and, therefore, the State’s statistical showing is insufficient to establish reliability.
{28} We disagree. The five percent rate of error in the control group is the error rate that most establish for the Protocol’s reliability. The purpose of the Protocol is not to identify the drug by which a subject is affected. Instead, the Protocol is designed to show whether the subject is impaired, and by what category of drugs the subject is impaired. The DREs were incorrect in identifying some sort of drug impairment in only five percent of the control group eases. It is unclear from the record whаt the impairment error rate was over the entire range of subjects not only limited to the control group, but the rate of error in recognizing impairment is remarkably low in that study. The rate of error for the DREs defining the correct category of drugs in both single drug use and multiple drug use scenarios is also
4. Accepted in the Field
{29} The final factor examines whether оr not a technique has been generally accepted in a particular scientific field. The district court found that “[t]he [Protocol] is generally accepted in the particular scientific field of forensic toxicology.” Although the Protocol has been the subject of conflicting studies and scientific opinions as established by the review of the studies in the preceding paragraphs, we conclude that this finding is not an abuse of discretion. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case is clearly untenable or is not justified by reason.” Heath v. La Mariana Apartments,
{30} “[A]ny doubt about the admissibility of scientific evidence should be resolved in favor of admission.” Lee,
D. Testimony of the DREs
{31} Defendants also contend that the DREs were not competent witnesses to testify about the Protocol because they were not competent to establish the scientific foundation for the Protocol. Torres speaks directly to the acceptable content of a DRE’s testimony. “In the context of HGN testing, we conclude that such non-scientific experts may testify, provided that another, scientific expert first establishes the evidentiary reliability of the scientific principles underlying the test.” Torres,
E. Proper Administration of the Protocol
{32} Finally, Valenzuela asserts that the DRE in his case improperly performed the Protocol, and that the failure to complete the Protocol as required negated any evidentiary foundation that the State may have succeeded in laying. The DRE failed to record Valenzuela’s temperature because the thermometer malfunctioned, and he did not record the third pulse rate because he was distracted. The State maintains that the DRE did not deviate from the Protocol, but instead was prevented from recording the results of the temperature and the third pulse rate.
{33} Valenzuela cites to State v. Aman,
III. CONCLUSION
{34} We affirm the district court.
{35} IT IS SO ORDERED.