*1 rаnge place person of a are within where Even when these reasons combined race, alleged color is to have committed a crime. stop- Agunbiades’ fact of with the suspicion committing the them on ping reasonably
robbery warranted. was still not factors, exception with the factor 6
These stop, a traffic would have warranted stopping any African American lead to
would vicinity happened in the
male who to be Indeed, City counsel for the con-
the crime. I point argument. at oral under-
firmed Minnesota, City “reasonably the term warrant” to re- STATE of stand Minneapolis, petitioners, possibility slight more than quire Plaintiffs, committed, person stopped may have commit, To to a crime. warrant about v. stop, suggest per- factors Terry have to activity. stopped is involved in criminal son Larry KLAWITTER, Michael et analysis They do not do so The court’s here. al., petitioners, Defendants. actually negate any the factors implies must No. C6-93-2092. activity in criminal possible involvement be- Terry stop fore a is unwarranted. Supreme Court Minnesota. not list the The court’s does most 30, 1994. June leading investigative this important factor to stop—the people fact that most Mounds Agunbiades are white. The
View were
stopped because their race differed predominates in Mounds
race which View. people
That most View are white Mounds give
certainly did not a basis for an
individualized, suspicion that the articulable robbery. were in the
Agunbiades involved specter
This case raises the
being permitted stop to innocent individuals they
solely happen someplace because to be
they “belong.” do not The court’s stops
suggests simply such one of the belong people
hazards identifiable accept.
minority willing must be It
unimaginable mother a white her
thirteen-year-old would son to school have stopped had been white
male. Supreme
As the said United Court 873, 878, Brignoni-Ponce, 422 U.S.
States
(1975),
2579,
95 S.Ct. depends “a
reasonableness balance be- public
tween the interest individual’s arbitrary
right personal security free from Here, by law
interference officers.” there simply
nothing public to balance—the has no every person stopping
interest color
578 Stuart,
John M. Minnesota State Public Defender, Swanson, Minneapolis, Scott G. for amicus curiae.
OPINION COYNE, Justice. granted parties’ joint petition
We for accelerated review in this case in order to important address an and doubtful certified question: whether and to what extent so- (DRE) Drug Recognition called Expert testi- mony prosecutions is admissible in for driv- ing while under the influence of a controlled substance. prosecution
This case involves the
of 13
individuals for
while under the influ-
ence of a
parties
controlled substance. The
prosecution
to use the
of one of the
defendants,
Klawitter,
Larry
as a test case.
specifically
The state contends
that defen-
dant Klawitter drove while under the influ-
marijuana.
prove
ence of
It seeks to
this
(a)
primarily through
testimony by
arresting
appeared
officer that defendant
(b)
drug,
under the influence of a
admission of defendant to the officer that he
marijuana joints
had smoked two
earlier in
(c)
day,
testimony
of a state
trooper
performed
12-step
examina-
tion of
following
defendant
what is called the
III,
Humphrey,
Atty. Gen.,
Hubert H.
St.
“Drug Recognition Protocol.”
Paul,
Alfton, Minneapolis City
and Robert J.
Defendant moved
suppress
before trial to
Atty.,
Herland,
Swedenburg
Karen
Asst.
trooper’s testimony
as novel scientific
City
Froehlke,
Atty., Teresa L.
City
Asst.
generally
evidence not
accepted by the scien-
Atty., Minneapolis,
plaintiff.
for
community
tific
and therefore not admissible
Kennedy,
R.
Hennepin County
William
under what has become
Frye
known as the
Defender,
Remington,
Public
Ann
Asst.
suppression
rule.1 After
hearing, at
Defender,
County
Inz,
Public
Julia
Asst. which ten witnesses testified for the state
County
Defender, Minneapolis,
Public
defense,
de-
and four witnesses for the
the trial
fendants.
court denied the
suppress. Specif-
motion to
States,
1141,
Frye
2248,
1. The rule is named after
v. United
476 U.S.
106 S.Ct
In order to training, Trooper only his ate suspects. Daly small number of Daly performed suspects examinations on identify could not log his sheet which majority” the field. vast suspects “[T]he individu- primary he interviewed as the offi- als he tested had not Daly cer. conceded that the ultimate evaluators, drug a car. Like other opinions others, he was also relies required participate evaluations, non-primary when a responsible evaluator is eight evaluator,” “prime as correctly recording tests, the results of the his Drug (4) (PCP) 2. The Phencyclidine Evaluation and Classification Pro- gram sponsored by Highway (5) the National analgesics Traffic Narcotic Safety recognizes drug Administration seven (6) cat- Inhalants egories: (7) Cannabis (1) system depressants program identify spe- Central nervous is not intended to system Central nervous stimulants cific to narrow the focus to one or (3) Hallucinogens drug categories. more nystag- nystagmus, gaze vertical gaze zontal those of may mixed with be observations drug recognition protocol. mus and opinion. ultimate responsible for the officer using drugs, as suspect has admitted If the Angeles Page of the Los Sergeant Thomas “aware did, will be the evaluator Klawitter Charge” “Officer in Department, Police doing any drug influence evaluation” prior to program, Angeles’ drug recоgnition Los the admission. suspect has made LAPD, Frye hearing. The at the testified the evalu- pointed out that counsel Defense Page protocol, trained pioneered or she also arrested opinion, unless he ator’s Page recognition officer. de- as a n “is not an later and suspect, is formed study which indicated a California scribed suspect] was under opinion that [the correctly an evaluation of the time that 94% may have been driv- at the time he influence nonalcoholic sub- discovered ing.” drug was and 79% of the time the stances Page that he con- correctly identified. said Later, Daly asserted that professionals medical and scientific sults with * * * of im- indicators] are “reliable tests Angeles’ program. supervision of Los his system depres- pairment by” central nervous and hal- Page that use of inhalants asserted sants, PCP, and inhalants. He testified ever, “rarely, if corrobo- lucinogens could *5 usually perform an examination not he does toxicology that he has by a exam and rated” alcohol rule[d] “almost out unless he has professionals to medical taught numerous He ad- begin[s] the evaluation.” [he] before impairment. Page recognize drug-induced only one con- log that his revealed mitted 12-step protocol separate opined that the is nonal- opinion, two confirmed firmed inhalant enforce- analysis because of its law field of cases, diag- and no PCP depressant eohol however, focus; said, he also ment in primary evaluator six He was the noses. spoken professionals he has with medical 1991-1993, toxicological cases Sergeant protоcol. generally accept only him three times. corroborated results protocol that is Page is of the testing Subsequent in the 50 eases chemical predictor scientifically reliable as a Daly “ruled out” in was the examiner which opinion of He stressed that an impairment. Daly’s about 14 times. assessment “totality” of is based on the impairment particu- eye tests are symptoms but that the indicated, the state called a number As we you cannot reach an larly important. “[I]f experts support of its contention said, “you certainty,” he find opinion of scientifically accepted, reli- DRE evidence is * * * cross- the individual.” On favor of Meyer, a BCA admissible. Robert able and examination, protocol he admitted evidentiary at an hear- toxicologist, testified study exactly the same” was “not used Frye hearing. His motion for a ing on the currently, that a and he conceded as is used “nothing new” opinion was that there study a cocaine detec- Angeles showed Los by Daly. Al- process described about the marijuana only 19% and a detec- tion rate of new, “they training program is though the 60%. tion rate technology that has using any new are not used already known Burns, not psychologist and/or Dr. Marcelline * * * Meyer ad- many organizations.” Ange- other long with the Los has been associated toxicological not al- exam will protocol’s mitted that program, evaluated the les DRE that an opinion and ways accuracy. confirm an officer’s testified that physiological She impair- necessarily” mean fail- nystagmus does “not is assessed horizontal smoothly gaze object as eye read that horizоntal track an ment. He has ure of the side-to-side, necessarily jerking and is reliable” distinct nystagmus “is not it moves from object dispute. is held farthest subject eyeball of medical and scientific view, point at protocol Although principles behind the from the center conceded, in a new, putting it all tremors first occur Meyer are not Alcohol, object. central nervous “may tracking in some together in this inhalants, PCP all depressants, system trial court ordered [novel].” sense nystagmus, nystagmus. may cause Vertical admissibility of hori- hearing to test object up eyes point may which occurs when moved on a near indicate suspect, high alcohol, reveals alcohol marijuana, PCP, down before depressant, or inha- PCP, depressant content or or inhalant use. use, inability eyes lant but the to cross one’s supervised Angeles the Los accu- Dr. Burns may naturally up occur to 40% of the study by Sergeant Page. racy noted She population. marijuana Peed noted that use expertise identified the “field” of as law en- eyes, driving, causes bloodshot can as aller- forcement “and alcohol and research” gies, and common illnesses. The failure of a experts agree and concluded that in the field pupil may drag to dilate indicate use or sufficiently reliable. damage. Although unrelated Peed has seen testimony, however, Much of her was direct- performed test on actual sub- impairment ed toward alcohol tests and stan- jects only although three times and he dards, drug impairment tests. Based on that head movement disturb the foundation, this she testified offi- assessment, accuracy aof con- he capable administering cers “are and inter- reliably apply cluded that can the test preting the results of the [horizontal HGN impairment. diag- determine He does not gaze nystagmus] test.” Dr. Burns told the drug impairment nose or treat as of his psychological experts court that medical and practice optometry, he had attended entirely” early development “almost led the sobriety both the testing standardized field Angeles of the DRE in Los and that school and the DRE course. “sought people the LAPD out from the medi- Zuk, M.D., Zenon supported cal and scientific communities” to refine the Dr. Burns’ highlighted gaps tests. Cross-examination assertions. Dr. Zuk drag witnessed to 40 Angeles study; Dr. responded working the Los Burns evaluations while for the study study everything” City Angeles jail that “no physician. can and be Los as a He *6 only general free from attаck. conceded that in She described a medical examination as consisting 48% the cases studied did the officer cor- inquiry history of an into and rectly identify drugs present. all symptoms, She signs, an examination of vital lab study tests, also admitted that her did not “address oratory diagnosis. and He testified ability distinguish DRE of a a user that the followed in a DRE evalua nonuser,” undermining from a thus analogous tion is process a medical study’s relevance to an officer’s determina- professional employ. would The instruments particular tion a whether motorist is im- symptomatology used, said, and matrix he paired. typically The studies do not include “generally accepted are in the medical com cases where the DRE concludes that the munity.” Horizontal nystagmus and vertical * * n drugs. is not under influence of “generally are accepted sign” as a agreed eye Dr. Bums further test associated with the depressants, intake of portions heavy “have a sub- PCP, convergence, and inhalants. Lack of jective component.” however, may be less reliable in the custodial setting. The four “divided attention” dexter
Optometrist David Owen Peed discussed ity “drag tests impair reveal alcohol [or] eye movement tests. He has studied they ment” because show the effect on “cere pharmacology, he which described as “the * * * changes bellar functions [and] biodynamics drugs.” science of the Peed neurochemistry neurophysiology and learned the DRE tests from the may brought upon by ingestion Georgia nystag- State Police. He stated that drags.” typically The coordination naturally only mus occurs tests are popu- 4% of the comprehensive neurological of “a presence normally sign lation and that its exami is a nation.” A problem. Drug-induced nystagmus signs pupil-dilation of a vital is and forms, more exam is also detecting drag intense obvious than other “relevant to im by pairment,” sleep. although such as that caused a lack of by He the stress caused alcohol, may with Dr. Bums that arrest depres- signs. elevate vital He contended sants, inhalants, nystag- impairment by PCP cause the level of detectable a mus. Injury or common viruses are other DRE exam would render an individual un possible convergence causes. The absence of safely. able to drive He said that an evalu examinations, a professional, medical but he would not trust ator not be a need perform offi in which an officer to or he two occasions described suspect’s drug rigidity use more accu test because even doctors cer assessed a muscle tests, 12- experience problems interpreting Dr. these rately than he did. Zuk believes by step trustworthy symptoms may and reliable caused process “is and these also be evaluating drug impairment. physical disputed conditions. method” for He Romberg reliably drug test indicates balance Arizona, toxicologist Eu- A forensic use, sign and he said that “the vital alcohol Adler, gene helped develop Arizona’s DRE * * * fraught difficulty assessment with attending in Los program after the course many there are so [b]ecause influences toxicological Angeles. said that a Adler blind * * * signs, particularly our vital we drug impair- exam alone cannot determine being pulled over.” A or blood are urine signs and symptoms [which ment. “The test, stated, way “the he reliable DRE’s are al- evaluation] basis for the identify drugs person taking.” A [a is] what community ready known the scientific * * * patient using drugs in combination—which use,” said, daily although he he * * * witnesses “un the state’s said is common—is has that much not “heard about has, opined. Belgrade he interpretable,” Dr. training. components” DRE outside his however, neither manuals seen studies, Adler conducted two Arizona nor observed evaluation. reliability supportive he considered protocol. reported He that in 86% DRE Morgan, pharmacology profes- Dr. John studied, predicted 341 cases DRE York, published in New has articles on sor drug; at least one evaluator drugs and their effects in or 40 different “30 correctly specific “attributed journals.” He criticized offered the studies category” in 75% of 526 cases. lacking adequate contrоl the state as remaining percentage cases represents groups providing and as an incentive to dis- DRE erred or could not where the the lab accuracy. officer’s tort an He reviewed confirm use. Adler was not aware of offered, manuals, including exhibits the DRE any allegation published that the evaluation and concluded “does process “seriously flawed.” provide “has been reliable information” and any subject to no scienti- almost discussion Jejurikar of Dr. S.J. the Minnesota BCA *7 community.” reliability disputed fic He the explained testing samples the chemical of convergence. Like pupil of dilation or lack of suspects. The lab uses a “Gas Chroma- Morgan Belgrade, Dr. Dr. has not witnessed tography-Mass Spectrometry” He said test. an evaluation. very [impair- that is difficult to assess “[i]t sоlely specimen.” the basis [a] of ment] Janofsky, Jeffrey psychia- a forensic Dr. request, prosecutor’s prepared At he a trist, liter- that international medical testified in report analysis of the BCA’s of cases protocol. has not discussed the DRE ature predicted presence officer of a which the assess- complained procedure’s that He cases, predicted drug. Of 71 officer impair- impairment, unlike alcohol ment of presence type drug one in 84.5% of at least of tests, has not confirmed under ment been predicted drugs present of the cases and all opined the conditions. He simulated the eases. officers 79.5% of Minnesota protocol not valid either for is “reliable or marijuana best, presence stimu- identified disability or “for looking impairment,” at or time, of depressants of the 64.3% lants 66% [identifying presence the] or absence” time, only of the and narcotics 54.5% they drugs. confirm the Because time. thought to drugs only in the bodies of those by the presented impaired, the studies relied on defense four witnesses. be * * * a Belgrade, neurologist, “give impression false Dr. Miles testified state highly Finally Dr. Ja- part [they DRE accurate.” are] that he “would use examina * * n * * * nystagmus, orga nofsky not have it said assessments tion but would size, convergence, and vital pupil that he lack of quite in this fashion.” He said nized opinion on patient perform not sufficient for an interrogate signs and are would 584
drug impairment; symptoms PCP under the influence of some controlled sub- use, marijuana example, vary -wildly. stance. for Second, steps protocol, of the twelve The last defense witness was Dr. Paul any particular few of them seem to call for Pentel, County Hennepin physician medical or scientific or skill on the drug specializes in intoxication and adverse Certainly, prelimi- the officer. knowledge He had no reactions. about nary medical examination to determine program apart supplied DRE from that attention, whether the needs medical indepen He no defense counsel. knew of taking pulse, temperature, and dent, process. validation of the scientific He pressure blood all capabil- are well within the rarely testified that he tests for lack of con Trooper Daly, ities who is a certified vergence nystagmus may present and that be emergency medical technician. cases, invariably depressant but “it’s not Only the tests for horizontal and vertical present.” that a can He officer convergence and for are out of signs pupil trained to evaluate vital ordinary, they hardly can be charac- size; thought “experience but he in various emerging terized techniques. as scientific settings required medical become * * * Nystagmus convergence long have accurate observer of muscle tone.” contemplated by known and the tests stand, may employ one-leg Pentel heel-to- have been common medical use walk, test, finger-to-nose toe but he nor change many years. without for The tests mally Romberg does not use test and he simple require and do not the use of “[has] not seen test used literature complicated equipment—the pen examiner’s and standardized.” He cautioned that a toxi target. Nevertheless, cоnstitutes a suitable cological confirmation reveals step—and, perhaps, this step calling for exposure had “[has] * * rigidity examination for muscle as well—is intoxication, *. It’s not a measure of it’s “scientific” in the sense that we use the term not Dr. meant to be that.” In Pentel’s view deciding whether to scrutinize evidence un-“blinding” by telling DREs them before gained to ascertain if it has accep- sufficient arresting suspects, the exam what the officer admissibility tance scientific circles. The opinions. undermines their He thinks that of evidence based on the use of determining is not reliable testing question previ- is not a that we have impairment because “it has been vali [not] n n ously directly, * * addressed but the * * issue has certainly dated it scrutiny been under in other courts. Com- something accepted by the medical Quinn, pare People 153 Misc.2d community.” He is of the that some (Dist.Ct.1991), N.Y.S.2d rev’d on thing than the more evaluation done grounds, other 158 Misc.2d needed, DRE is and he stated he would not N.Y.S.2d 534 with Commonwealth v. utility accept until a DRE *8 Apollo, 453, 1023, 412 Pa.Super. 603 A.2d group people evaluated a of who have not denied, appeal 1028 531 Pa. 613 arrested, the evaluation to be made (1992). Stephanie A.2d 556 See also E. Bus- using protocol.
without the loff, Eyes Can Your be Against Used You? earlier, subject agree, As we said we to The Use the Nystagmus Horizontal Gaze of qualifications, some with the trial court’s rul- Courtroom, Test in the 84 J.Crim.L. & Cri- ing denying suppress Trooper the motion to (1993). is, minology course, 203 It of obvious Daly’s testimony. nystagmus that the effectiveness of a test as an element of an evaluation to determine analysis begin proposition We our with the drug impairment universally accepted. is not that, properly viewed, protocol the followed Indeed, experts agreement, had the been in by Trooper Daly is not itself a scientific there would have been no reason for the technique things but rather a list of the hearing. prudent, experienced trained and officer Here, should formulating consider before or ex- judge the trial determined that pressing opinion an subject nystagmus whether the is the require- tests satisfied the
585 States, impaired by presence drug. or the of some F. Frye ments of v. United (D.C.Cir.1923). of rec- put way, protocol, Our review the it a To different the in the judge the trial did not ord convinces us that main, garb dresses that in scientific which is clearly arrive at a her or abuse discretion Calling particularly not scientific. an officer determining the in that erroneous conclusion pursuant trained the art of observation to nystagmus the standard.3 tests satisfied “Drug Recognition Expert” the Swenson, Hagen 306 Minn. See to seems to us assume the conclusion. If the (1975). N.W.2d 161 then, course, an “Expert,” officer is of his or recognized that experts All of the the tests opinion pursuant expert her is admissible to nystagmus employed for the evalua- Moreover, calling Minn.R.Evid. 702. the of- neurological tion are tests. The standard “Expert” weight ficer tends to lend to the experts’ challenge was to defense directed opinion. officer’s utility ascertaining drug for of the tests experts impairment. The defense did not general misleading In it to us seems drugs suggest may that the use of certain not present “Drug for the state officer as a to but, nystagmus nystagmus cause rather that Recognition appellation Expert.” sug That in all “necessarily” present is not cases of something gests that there is scientific about contended, however, drug use. not that It is testimony, requiring officer’s thus presence or absence of to court determine whether scientific un presence drugs determinative of the derpinnings testimony adequately of the present, may nystagmus, when it is accepted circles. We are of the scientific supportive of a element conclusion however, opinion, ques drug impairment on the based elements scrutiny not kind of tion does demand the protocol, taken as a whole. And it required presentation of some novel support also the identification discovery technique. real scientific The category involved. admissibility of the issue is evidence challenge The defense point other reсeive, weight but the it should that is a goes competence police officer’s to jury being matter for to decide without protocol. draw on the Ba- conclusions based led to believe that the evidence entitled to sically, however, following the does Therefore, weight greater than it deserves. any significant not involve scientific skill or in the the officer shall not be courtroom training Drug officer. Recognition Expert.” “Drug called a Per designed recognition training qualify is not “Drug Recog haps the can be called a officer but to train offi- officers as scientists designation nition Officer” or some other cers as observers. intended recognizes has that the officer received to refine enhance the skill of acute ob- possessed of special training and is any good sеrvation which is the hallmark of experience recognizing power to focus that officer and drugs suggesting without unwarranted scien particular observation in a situation. For expertise. careful tific After consideration example, protocol requires the officer testimony conclude based on we performance suspect’s observe the of motor if a testing is admissible sufficient designed skill tests to reveal motor skill defi- exp laid for the foundation has been expect find ciencies the kind one would court, the trial provided if were “under influence” ressed4 *9 City urges Frye P.2d 171 and State ex rel. Hamilton v. 3. The state abandonment of stan Court, 514, (1990), dard favor of the standard articulated in Dau 855 799 P.2d cases Ariz. 165 - -, Dow, v. U.S. bert Merrell 2786. 113 S.Ct. support opinion generally admission of we affirm the determination that Because testimony nystagmus testing but which based on here, Frye met not standard has been we do letting about a wit caution counsel and courts address the effect of the Daubert decision on the expressing opinion go an ness farther in on application Frye use or rule in Minnesota. drug impairment ultimate issue intoxication or justified. than is Superior 4. We refer courts to State counsel and v. 269, County, Court ex 149 Ariz. 718 rel. Cochise 586 requested, gives appropriate police give opinion an cau- officer an to that an indi- Therefore,
tionary instruction.5 impaired. vidual the court found that the DRE not a novel summary, In it seems to us that the technique requiring experts scientific that 12-step procedure a standard use of generally agree the “field” that the evidence recognizing drug impairment greater leads to< testimony Sergeant is reliable. As the consistency accuracy opinions in the however, Page Trooper Daly suggests, likely if officers than is each officer various easily separated cannot be into develops deciding or his own format for her steps its several but it is an assessment drug impaired. whether the We totality” based on “the of an officer’s obser- agree with the trial court that the officer vations. give opinion should be allowed to based on experience the officer’s and his course, right, The trial court is that following 12-step or her observations “nothing there is new or controversial about (a) drug recognition protocol, long as as allowing give officer opinion to specific is sufficient foundation for there impaired,” that an individual is but a (b) opinion expressed, thе state does not application officer’s of medical or scientific attempt exaggerate the officer’s creden rendering opinion tests and the of an by referring “Drug tials to the officer as a impairment based on those tests is an Recognition Expert” unfairly suggest or to “emerging technique” Frye that warrants greater that officer’s is entitled to inquiry. This is so because the field to which (c) deserves, weight than it the evidence just technique belongs is not law enforce- analy otherwise Minn.R.Evid. 403 survives forensics, claims, ment and as the state sis. it We add should be obvious includes elements the medical and neu- that the mere fact that such testimo rological fields as well. ny necessarily is admitted mean does test, Frye/Mack as set out in orn- testimony by that such itself will be sufficient eases, determining states that when admissi- supрort guilty verdict. bility emerging of evidence based on scienti- Affirmed. techniques, fic require experts we “that widely the field share the view re- WAHL, (dissenting). Justice testing] sults of scientifically [scientific I respectfully dissent. The DRE Mack, reliable as accurate.” State v. 292 on which a law enforcement officer bases an (Minn.1980) 764, (evidence N.W.2d 768 ob- drug impairment emerg- assessment of is an Jobe, hypnosis). tained See State v. 486 ing technique Frye/Mack must meet our 407, (Minn.1992) (DNA N.W.2d 419 evi- standard for scientific evidence. The trial dence); Fenney, 54, State v. 448 N.W.2d 57 components court viewed the DRE (Minn.1989) (electrophoresis); State that, protocol separately and concluded ex- Schwartz, (Minn.1989) 447 424 N.W.2d cept for the use of the HGN and vertical (DNA Anderson, testing); State v. tests, new, novel, nothing there is (Minn.1985) (graphological N.W.2d any single component. controversial аbout assessment); Kolander, personality State v. respect to nys- With the HGN and vertical 209, 219-22, 236 Minn. 52 N.W.2d 464- tests, tagmus the court concluded that (1952) (lie test). detector showing state had met its burden of generally accepted these tests are as reliable In the criminal context with its constitu- satisfy indicators of and thus implications, tional it is not too much to accurate, standard. The court also did require expert testimony not find anything valid, new or controversial about and reliable. No one doubts that an “symptomatology matrix” used the DREs drug impairment officer’s assessment of allowing reach their’ conclusions or personal about a based on the observations and medi- Busloff, sample nystagmus cautionary 5. For a supra, instruc- see at 237. tion, *10 approve disapprove, which we neither nor driving motor vehicles under the Persons protocol DRE tests of the cal or scientific Therefore, of a controlled substance should be pro- DRE influence testimony. expert convicted, they apprehended and but should validity/ae- its be tested for both tocol must by convicted the force of an not be it is curacy, ability to measure what by on and enhanced impairment based measure, reliability, and its supposed to proved protocol which has not been DRE obtaining results consistency in the same study specifically A valid and reliable. performed. See each time the procedure validity designed to evaluate the and reliabili- Forinash, Ev- Analyzing A. Renee Scientific currently way ty protocol is under at Reliability with a Validity to idence: From Research Center the Nation- the Addiction Mary’s Approach, 24 L.J. Two-Step St. Hopkins Drug Abuse at Johns al Institute on (1992). 237-38 University. study being In this scales are tested, it has DRE can be The designed component of the DRE for each yet properly. tested None DREs can evaluate protocol so that different support trial court cites to four studies1 the comparison can be the same protocol is rea- that the DRE its conclusion Experienced drug made of their evaluations. determining an sonably whether rehable being study The will be users are recruited. impaired by drugs prove that individual is in that the DREs will not be doubleblind protocol for is a valid or reliable the DRE persons questions about their allowed to ask in- drug impairment.2 Evidence predicting prior evaluation. use hearing indicated at the trial court troduced in this I conclude that the evidence would that none of the studies аdministered proto- that the DRE case does not establish in a fashion so as to DRE blind Frye/Mack and that col meets the standard study DRE validity. In each insure their pro- on that on based already had knew in advance tocol is inadmissible. drugs using drugs or that admitted to found on or near drug paraphernalia were arrest—thus suspect at the time of his study tainting the DRE’s
unblinding the provided for None of the studies
evaluation. same than one DRE to evaluate the more Minnesota, Respondent, STATE compare and subject, making impossible it judge accuracy of the evaluations. None SCALES, Appellant. Michael Jerome measured evaluation under of the studies against correct standard of DRE No. C4-93-1541. safely operate motor vehicle— ability to Supreme of Minnesota. Court prohibits driving a motor ve- Minnesota law impaired a controlled sub- hicle while 30, 1994. June stаnce; prohibit driving a motor it does not Aug. 1994. Rehearing Denied urine. drugs present one’s vehicle with experts agreed that the mere All system
drugs person’s in a does not mean
person impaired. (1984) samples toxicological of urine Study results Hopkins was a con- which
1. Johns The Hopkins University study opinions. compared at Johns The trolled with the DRE were specific drug doses were administered comparison 71 cases in the was made with same subjects four who were then rated volunteer (1993). Study Minnesota Angeles Study Angeles DREs. The Los Los (1986) study at the LAPD in which was held Jeffrey testimony Ja- of both Dr. 2. was the This suspects evaluated who were arrested DREs driving nofsky, psychiatrist teaches at a forensic drugs the influence of a or of under expert Hopkins University and who is Johns suspects samples Blood from 173 and alcohol. review, development, design, and research samples toxicological results of those Morgan. John and Dr. opinions. compared were with the DRE Study compiled 526 cases Arizona