Commonwealth vs. Rich No. CP-38-CR-868-2012

Crimes – Driving Under the Influence of Drugs – Expert Witnesses – Frye vs. United States – Police Officer’s Opinion – DRE Evidence – HGN Testing – Proper Scientific Support – Motion in Limine.

1. If scientific, technical or other specialized knowledge beyond that possessed by a layperson 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.

2. Rule 702 triggers a two-prong inquiry when a party proffers expert testimony:   whether the subject on which the witness will express an opinion is so distinctly related to some science, profession or occupation as to be beyond the understanding of the average layperson; and whether the witness himself has the skill, knowledge or experience in the field that would qualify him to render an opinion that could aid the trier of fact in its search for the truth.

3. Pennsylvania’s paradigm for assessing admissibility of scientific evidence is derived from the landmark case of Frye vs. United States.

4. Under the Frye test, the Trial Court does not decide whether the expert’s theories are true or false.  Rather, the Court acts as a gatekeeper to decide whether the basis of the expert’s opinion is sufficiently reliable, solid and trustworthy science.  In making this decision, the Court must decide whether a particular scientific process is generally accepted in the scientific community.  Stated differently, a court’s inquiry into whether a particular scientific process, i.e., the proffered evidence, stems from scientific research which has been conducted in a fashion that is generally recognized as being sound, and is not the fanciful creations of a renegade researcher.

5. Frye is not implicated every time science comes into the courtroom; rather, it applies only to proffered expert testimony involving novel science.

6. In Pennsylvania, police officers have historically been permitted to render opinions regarding intoxication of motorists because intoxication is not a condition outside the realm of understanding or powers of observation of ordinary persons.

7. A police officer, if he has perceived a defendant’s appearance and acts, is competent to testify to his opinion as to the defendant’s state of intoxication and to his ability to drive a vehicle safely.  This principle has been extended from alcohol intoxication to drug-induced intoxication, providing the police officer  has personally perceived the Defendant’s appearance and acts, and the police officer  is personally familiar with the effects of narcotics.

8. To date, no Pennsylvania appellate case has upheld the admissibility of HGN testing.  In fact, three separate Pennsylvania Superior Court decisions have declared HGN to be inadmissible due to the absence of an appropriate scientific foundation.

9. Based upon the testimony at the hearing and its research, the Court held that Horizontal Gaze Nystagmus is a component of a DRE analysis, and also that HGN is not admissible in Pennsylvania absent a proper scientific foundation.

10. The Court further held that the record presented to the Court in this case did not contain sufficient foundational support for the admissibility of HGN and, therefore, DRE should not be admitted as scientific evidence.  In support of this holding, the Court noted Pennsylvania appellate precedent and the doctrine of stare decisis because of a prior Lebanon County case.

11. In addition, the Court held that to present his evidence, the officer need not be qualified as an expert witness, but may describe his observations and render an opinion regarding the Defendant’s drug-induced intoxication and whether this intoxication rendered him incapable of safe driving.

12. The Court strongly suspected that Pennsylvania’s appellate courts will follow the DRE precedent established by their appellate counterparts from across the country if presented with a case in which an appropriate testimonial foundation is present.

13. The Court entered an Order denying the Defendant’s motion to exclude testimony from the officer.  However, this Order also precluded the Commonwealth from mentioning or describing the DRE protocol and precluded the Commonwealth from classifying the officer as an expert witness.

Defendant’s Motion in Limine. C.P. of Lebanon County, Criminal Division – No. CP-38-CR-868-2012.

R. Scot Feeman, Esquire, for Commonwealth

Elizabeth Judd, Esquire, for Defendant

 

TABLE OF CONTENTS

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                         PENNSYLVANIA

 

                                      CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA:  NO. CP-38-CR-868-2012

                                                                    :

                   v.                                             :

                                                                   :

 

RANDY LAWRENCE RICH                       :

 

 

APPEARANCES:

 

R. Scot Feeman, Esquire                          For Commonwealth of

DISTRICT ATTORNEY’S OFFICE                  Pennsylvania

 

Elizabeth Judd, Esquire                           For Randy Rich

PUBLIC DEFENDER’S OFFICE

 

OPINION BY CHARLES, J., March 13, 2013

 

Unlike blood alcohol contents, the degree to which an individual experiences impairment from drug usage is often incapable of being quantified with precision.  Because of this, police in California developed a system to evaluate whether an individual is under the influence of drugs to the point where he or she cannot drive safely.  Before us today is the issue of whether the Commonwealth can admit expert testimony regarding Drug Recognition Evaluation (DRE), which is the comprehensive protocol developed in California and used by law enforcement throughout the United States to identify drug-induced impairment.  For reasons we will articulate in more detail within the body of this Opinion, we hold that DRE evidence cannot be admitted as “scientific proof.”  However, police officers may, with proper foundation, offer an opinion regarding the nature and extent of a defendant’s drug-induced intoxication.

 

I.          FACTS

On April 17, 2012, Randy Rich (hereafter “DEFENDANT”) was stopped by Pennsylvania State Police Trooper Norbert Brennan.  According to the Affidavit of Probable Cause, Tpr. Brennan observed the DEFENDANT’s vehicle making an abrupt U-turn across the center lane of travel on the busiest east-west thoroughfare in Lebanon County.  When Tpr. Brennan effectuated his traffic stop, he observed signs that led him to believe that the DEFENDANT was under the influence of either drugs or alcohol.

Tpr. Brennan effectuated an arrest of the DEFENDANT.  While in route to the Lebanon Good Samaritan Hospital for chemical testing, Tpr. Brennan stopped at the DEFENDANT’s residence and spoke with his wife, Vivian Rich.  Mrs. Rich confirmed that her husband was bi-polar and was taking numerous medications.  As a result, Tpr. Brennan summoned Pennsylvania State Police DRE Specialist, Corporal Richard Gamez.  Cpl. Gamez had received two hundred seventy hours of training in detecting the impact of drug abuse.  Since Cpl. Gamez received his DRE expert certification on August 1, 2006, he had completed one hundred and fifty evaluations.

Cpl. Gamez described a twelve step process that he employed to evaluate the degree to which the DEFENDANT was under the influence of a controlled substance.  That twelve step process included the following:

(1)     A preliminary breath test;

(2)     A preliminary evaluation of the DEFENDANT’s pupil size;

(3)     A check of the DEFENDANT’s pulse;

(4)     Observation of the DEFENDANT completing three divided attention tests:

• The walk and turn test;
• The one leg stand test; and
• The finger to nose test.

(5)     A check of the DEFENDANT’s blood pressure;

(6)     A check of the DEFENDANT’s body temperature;

(7)     Observation of how the DEFENDANT’s pupils reacted to three different types of light;

(8)     A “test” of the DEFENDANT’s pupils[1];

(9)     An evaluation of the DEFENDANT’s muscle tone;

(10)   A physical examination of the DEFENDANT for injection evidence;

(11)   An interview of the DEFENDANT regarding his use of drugs or alcohol; and

(12)   Toxicology testing by a laboratory.

On November 1, 2012, the DEFENDANT filed a Motion In Limine seeking to exclude Cpl. Gamez’s testimony.  The DEFENDANT presented a so-called “Frye challenge” by which he sought to exclude Cpl. Gamez’s testimony as “junk science” unsupported by any generally accepted scientific principles.  The DEFENDANT argued:  “The DRE is no more accurate, reliable, and valid as a lie detector or HGN test, and should not be admissible at trial.”  (DEFENDANT’s Brief at pg. 7.)

We conducted a hearing regarding the DEFENDANT’s Frye challenge on December 12, 2012.  Cpl. Gamez was the sole witness at this hearing.  Cpl. Gamez described his training and the process by which Pennsylvania State Police DRE experts conduct their analysis.  Cpl. Gamez related that he had been certified by the International Association of Police Chiefs as a DRE instructor.  Fairly summarized, Cpl. Gamez indicated that the accuracy rate for DRE analysis is between 90 and 95%.  However, he acknowledged that he had never been qualified as an expert witness in a court of law.

Both the Commonwealth and the DEFENDANT have filed briefs in support of their respective positions regarding Cpl. Gamez’s testimony.  We issue this Opinion in support of our decision that Cpl. Gamez should be permitted to testify as to his observations, but not as a scientific expert.

 

 

II.       DISCUSSION

Our research into the parties’ arguments led us in directions we did not completely anticipate.  Some of the questions we encountered included the following:

• Is Horizontal Gaze Nystagmus (HGN) a component of DRE?  If so, does Pennsylvania precedent regarding HGN by extension prohibit proof of DRE?
• Is DRE expert testimony governed by the so-called “Frye test?”
• Are we required to declare DRE testimony inadmissible based upon President Judge Tylwalk’s decision in the case of Commonwealth v. Bradley Brown?
• Can we admit Cpl. Gamez’s opinion without qualifying him as an “expert witness?”

In addressing these questions and others triggered by the parties’ arguments, we will divide our discussion of the law into the following “chapters”:

(1)     Pennsylvania law governing challenges to expert testimony;

(2)     Pennsylvania law regarding police officers’ opinions pertaining to intoxication;

(3)     Decisional precedent regarding DRE that exists throughout the United States.

(4)     Judge Tylwalk’s decision in Commonwealth v. Bradley Brown; and

(5)     Admissibility of HGN in Pennsylvania.

After setting forth the above “chapters,” we will articulate our legal conclusions derived from our research and will analyze those conclusions within the context of the information presented by Cpl. Gamez at the December 12, 2012 pretrial hearing.

A.      General Principles Governing Challenges to Expert Testimony                                                                                                        

 

Pennsylvania Rule of Evidence 702 reads:

Rule 702.  Testimony by experts.

 

If scientific, technical or other specialized knowledge beyond that possessed by a layperson 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.

 

Rule 702 triggers a two-prong inquiry when a party proffers expert testimony:

(1)     Whether the subject on which the witness will express an opinion is so distinctly related to some science, profession or occupation as to be beyond the understanding of the average layperson; and

(2)    Whether the witness himself has the skill, knowledge or experience in the field that would qualify him to render an opinion that could aid the trier of fact in its search for the truth.

Wexler v. Hecht, 847 A.2d 95 (Pa.Super. 2004); Kovalev v. Sowell, 839 A.2d 359 (Pa.Super. 2003).  The DEFENDANT’s Motion in Limine implicates the first of the above issues.

Pennsylvania’s paradigm for assessing admissibility of scientific evidence is derived from the landmark case of Frye v. United States, 293 F. 1013, (D.C.Cir. 1923).[2]   Under the Frye test, the Trial Court does not decide whether the expert’s theories are true or false.  Rather, the Court acts as a gatekeeper to decide whether the basis of the expert’s opinion is “sufficiently reliable, solid and trustworthy science.”  In making this decision, the Court must decide whether a particular scientific process is “generally accepted in the scientific community.”  Id.  Stated differently, “a court’s inquiry into whether a particular scientific process is ‘generally accepted’ is an effort to insure that the result of the scientific process, i.e., the proffered evidence, stems from ‘scientific research which has been conducted in a fashion that is generally recognized as being sound, and is not the fanciful creations [sic] of renegade researcher³.”  Tucker v. Community Medical Center, 833 A.2d 217, 224 (Pa.Super. 2003), quoting in part Blumb v. Merrill Dow Pharmaceutical, 764 A.2d 1, 5 (Pa. 2000)(Cappy, C.J., dissenting)).

The Frye analysis is not implicated every time expert testimony is sought from a witness.  As stated by our Commonwealth’s highest court, “Frye is not implicated every time science comes into the courtroom; rather, it applies only to proffered expert testimony involving novel science.”  Commonwealth v. Dengler, 890 A.2d 372, 382 (Pa. 2005);  See also Trach v. Fellin, 817 A.2d 1102, 1109 (Pa.Super. 2003).  In fact, the codification of Frye found in the Pennsylvania Rules of Civil Procedure is entitled:  “Motion To Exclude Expert Testimony Which Relies upon Novel Scientific Evidence.”  Pa.R.C.P. 207.1.

B.      Police Testimony Regarding Intoxication

 

In Pennsylvania, police officers have historically been permitted to render opinions regarding intoxication of motorists.  In Commonwealth v. Neiswonger, 488 A.2d 68 (Pa.Super. 1985), the Pennsylvania Superior Court observed that “[i]ntoxication is not a condition outside the realm of understanding or powers of observation of ordinary persons.”  Id. at n. 2 (citing Commonwealth v. Boerner, 407 A.2d 883 (Pa.Super. 1979)).  For this reason, the Court stated:  “We hold that a police office, if he has perceived a defendant’s appearance and acts, is competent to testify to his opinion as to the defendant’s state of intoxication and to his ability to drive a vehicle safely.”  Id. at 70.

The principle articulated in Neiswonger has been extended from alcohol intoxication to drug-induced intoxication.  In Commonwealth v. Yedinak, 676 A.2d 1217 (Pa.Super. 1996), the Trial Court admitted testimony from a police officer that the Defendant was under the influence of marijuana to a degree that rendered him incapable of safe driving.  The Defendant appealed this decision.  The Superior Court rejected the Defendant’s argument and stated:

 

 

[T]his Commonwealth has adopted Federal Rule of Evidence 701, which allows testimony by a lay witness in the form of an opinion, where the opinion is (1) rationally based on the perception of the witness and (2) helpful to the determination of a fact in issue…

 

Although this Court has never addressed whether lay opinion testimony is admissible to prove drug-induced intoxication, we find no basis upon which to distinguish opinion testimony of drug-induced intoxication from opinion testimony of alcohol-induced intoxication where the witness is personally familiar with the effects of narcotics.

 

Id. at 121; See also Commonwealth v. Davies, 811 A.2d 600 (Pa.Super. 2002) (police officers were permitted to render an opinion regarding intoxication of someone who was under the influence of both alcohol and morphine).

The principles outlined in Neiswonger, Yedinak and Davies were implicitly reaffirmed by our Commonwealth’s highest court in Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011).  In Griffith, the Defendant was charged with Driving Under The Influence Of A Controlled Substance.  See 75 Pa.C.S.A. § 3802(d)(2).  A police officer rendered the opinion that the Defendant was incapable of safe driving.  The Defendant argued that expert testimony should be required for the Commonwealth to establish Driving While Under The Influence Of A Controlled Substance.  The Superior Court agreed.  In Commonwealth v. Griffith, 985 A.2d 230 (Pa.Super. 2009), the Pennsylvania Superior Court held that because laboratory tests revealed only the “presence” of prescription medications, it was improper for the finder of fact to infer the “effect” of those prescription medications on the human body.

Pennsylvania’s Supreme Court reversed the decision of the Superior Court, stating:

We do not dispute that in some cases, depending on the specific facts and circumstances, expert testimony may be helpful, or perhaps even necessary, to prove causation under subsection 3802(d)(2), but we decline to hold that the need for expert testimony is inherent in the statutory provision and thus mandatory in all cases.”

 

Id. at 1238.  In reaching this decision, the Supreme Court relied heavily upon the ability of police officers to detect intoxication and articulate their opinions in court.  The Supreme Court recited the opinion of and observations of the arresting police officers and stated:

We hold that the above-summarized evidence was sufficient to establish that Appellee was under the influence of a drug or combination of drugs to a degree that impaired her ability to safely drive.  An experienced police officer closely observed Appellee’s behavior, demeanor, unsteadiness, and inability to perform field sobriety tests, all of which led him to request laboratory tests for the detection of controlled substances in Appellee’s blood.  Appellee admitted taking one prescription medication in the morning of the day of her arrest.  Two other Schedule IV controlled substances, to wit, Valium and an active metabolite thereof, were detected in her blood.  The Commonwealth’s evidence was sufficient to establish, beyond a reasonable doubt, that Appellee violated subsection 3802(d)(2).

 

Id. at 1240.

C.      Decisional Precedent From Other States

 

DREs were developed by the Los Angeles Police Department in the 1970s because “police officers often encountered situations where they suspected driver impairment due to drugs other than alcohol.”  United States v. Everett, 972 F.Supp. 1313, 1316 (D.C.Nev. 1997).  Not surprisingly, challenges to DRE testimony have progressed through the court systems of quite a few states.  While the reasoning of courts that have addressed the issue differs, we have not found any state that has judicially excluded DRE testimony.[3]  See State v. Aleman, 194 P.3d 110, 120 (N.M.Ct.App. 2008) (“We are also impressed with the fact that, whether the Protocol is deemed non-scientific or scientific, every case called to our attention that had considered the issue has held the DREs’ testimony to be generally admissible.”). Id. at 89; State v. Daly, 775 N.W.2d 47, 58-59 (Neb. 2009) (“[E]very court to have considered the [DRE] issue has concluded that testimony based upon the DRE protocol is admissible into evidence.”).

The Commonwealth has cited several cases from other states that have permitted admissibility of DRE testimony, and our research has disclosed several more.  In outline form, the cases we have studied are as follows:

(1)     United States v. Everett, 972 F.Supp. 1313 (D.C.Nev. 1997)

 

Mr. Everrett was charged with Driving Under The Influence of a Controlled Substance within a national park.  The prosecutor sought to present a DRE expert.  The Defendant challenged the propriety of that expert under Frye and its federal counterpart, Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The Court in Everett emphasized the necessity of DRE testimony by stating:

[U]nlike alcohol, where studies have been able to establish a direct measurement and correlation between the amount of alcohol in the system and the extent of impairment, with drugs there have been insufficient studies (and it may not be possible to do sufficient studies) to establish a comparable correlation between drug levels and impairment.  Consequently, in cases where driving under the influence of drugs is charged, the officer and the court must look to observations of the subject’s driving mannerisms and the results of the field sobriety tests which reflect the presence or absence of the ability to function where divided attention is required, and also reflect coordinative abilities.

 

Id. at 1317.  Despite recognizing the necessity of DRE testimony, the Court was reluctant to declare DRE testimony to be “scientific.”  The Court was concerned that affording DRE testimony with the imprimatur of “science” would impart a notion of infallibility to what was essentially subjective observations.  Nevertheless, the Court held that DRE testimony should be admitted.  The Court stated:

In this case, the testimony of the DRE is based upon observations and tabulations of the results of [the expert’s] observations.  He or she is not propounding a scientific principle or theory in testifying about the performance of the various steps of the evaluation and what the findings or observations were…In other words, the otherwise qualified DRE cannot testify as to scientific knowledge, but can as to “specialized knowledge which will assist the trier of fact to understand the evidence.”…

 

Based upon the foregoing, it is the DECISION and ORDER of this Court that, upon the appropriate foundation being laid, the Drug Recognition Evaluation protocol conducted by [the Ranger], together with his conclusions drawn therefrom, shall be admitted into evidence to the extent that the DRE can testify to the probabilities, based upon his or her observations and clinical findings, but cannot testify, by way of scientific opinion, that the conclusion is an established fact by any reasonable scientific standard.  In other words, the otherwise qualified DRE cannot testify as to scientific knowledge, but can as to specialized knowledge which will assist the trier of fact to understand the evidence.

 

Id. at 1319-20; 1326.

 

(2)     State v. Aleman, 194 P.3d 110 (N.M.Ct.App. 2008)

 

In Aleman, the New Mexico Court of Appeals employed an analysis similar to the Court in Everett.  The Court held that DRE testimony does not fall within the ambit of rules for scientific evidence articulated in Daubert, supra.  The Court stated:

[M]any of the individual steps of the Protocol can easily be identified as non-scientific.  For example, the following steps are based solely on observation:  the officer’s interview, the preliminary examination of the suspect, the assessment of vital signs, and the examination for injection sites.  Based upon training and experience, the DREs used 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.  Because we conclude that the process as a whole is not based on a scientific or medical principle, we hold that the [DRE] Protocol is not scientific.

 

Id. at 114 (internal citations omitted).

Despite its refusal to declare DRE testimony to be “scientific,” the Court in Aleman nevertheless upheld the admissibility of DRE testimony. The Court concluded:

We are also impressed with the fact that, whether the Protocol is deemed non-scientific or scientific, every case called to our attention that has considered the issue has held the DREs’ testimony to be generally admissible.  Accordingly, we hold that the district court did not abuse its discretion by finding that the State established that the Protocol met the reliability and validity standards set forth in Daubert.

 

Id. at 120.

(3)     State v. Klawitter, 518 N.W.2d 577 (Minn. 1994)

 

Like the Courts in Everett and Aleman, the Minnesota Supreme Court refused to declare DRE testimony to be “science.”  The Court described the DRE protocol as “a list of the things a prudent, trained and experienced officer should consider before formulating or expressing an opinion whether the subject is under the influence of some controlled substance.”  Id. at 584.  After summarizing the DRE protocol, the Supreme Court of Minnesota observed that:  “Drug recognition training is not designed to qualify police officers as scientists but to train officers as observers.”  Id. at 585.  Finally, the Minnesota Supreme Court held that police officers may testify about DRE “as observers,” but could not do so as scientific experts.  Id. at 586.

(4)     Williams v. State, 710 So.2d 24 (Fla.Dist.Ct.App. 1998)

 

Like Pennsylvania, Florida adheres to the Frye test and not the one articulated in Daubert.  In Williams, the Court held that the DRE protocol was not “scientific evidence.”  Therefore, the Court refused to apply the Frye “general acceptance in the scientific community” standard when assessing admissibility of DRE testimony.[4]  Nevertheless, the Court held that DRE testimony could be of assistance to the trier of fact.  The Court stated:

[T]he tests, signs and symptoms of the [DRE] protocol are within the common understanding of the average layman…

 

The innate possibility of error in a test does not provide a sound basis for rejecting the test results as evidence.  Any discrepancies in the precise method used goes to weight, rather than to the admissibility of such evidence.

 

Id. at 28, 34.

(5)     State v. Baity, 991 P.2d 1151 (Wash. 2000)

 

The state of Washington also applies the Frye standard.  When addressing DRE testimony, the Court stated:  “[T]he protocol, in the main, dresses in scientific garb that which is not particularly scientific.”  Id. at 1160.  Despite this conclusion, the Court recognized that the Horizontal Gaze Nystagmus component of DRE did have scientific implications.  Therefore, the Court conducted a separate Frye analysis to determine whether the HGN portion of the DRE protocol was admissible.  Citing numerous studies and Klawitter, supra, the Washington Supreme Court held that HGN was a generally accepted method of establishing whether an individual is impaired.  Therefore, the Court entered a separate decision declaring the HGN portion of the DRE protocol to be admissible under Frye.  Thereafter, the Court declared the entire DRE protocol to be admissible.

 

(6)     State v. Sampson, 6 P.3d 543 (Or.Ct.App. 2000)

 

Unlike all of the cases cited above, the Oregon appellate court declared that DRE testimony is scientific:  “Considering the DRE protocol as a whole, we conclude that it is scientific evidence subject to the judicial gatekeeping function.”  Id. at 549-50 (emphasis in orginial).  As a result, the Court applied a seven step hybrid analysis that is applied in Oregon based upon both Frye and Daubert.  One of the questions involved “general acceptance” in the scientific community.  In evaluating this component of the Oregon hybrid analysis, the Court held:  “We conclude that, despite the existence of spirited dissent, the DRE protocol has achieved a significant degree of acceptance within the relevant scientific community that weighs in favor of its admissibility for the purpose of establishing the influence of controlled substances.”  Id. at 553.

(7)     State v. Daly, 775 N.W.2d 47 (Neb. 2009)

 

Like Baity, the Court in Daly separately analyzed the observational aspects of DRE and the HGN component.  The Court declared that HGN testing is “generally accepted in the relevant scientific community as an indicator of impairment.”  Id. at 62.  In addition, the Court cited a 1984 study from Johns Hopkins University showing the DRE correctly determined intoxication 91.7% of the time and a Minnesota study that showed that DRE correctly identified cannibus intoxication 91.8% of the time.  Id. at 58.  With respect to the protocol as a whole, the Court stated:  “[T]he underlying principles of the DRE protocol are basic and familiar:  Gather information from the suspect and measure fundamental physical symptoms and then derive a conclusion about drug or alcohol intoxication from that data.”  Id. at 58.

In addition to evaluating the DRE protocol, the Nebraska Supreme Court also conducted a survey of every appellate decision across the country that evaluated DRE.  The Court concluded:  “[E]very court to have considered the [DRE] issue has concluded that testimony based upon the DRE protocol is admissible into evidence.”  Id. at 58-9.  Following the lead of other courts, the Nebraska Supreme Court admitted DRE testimony.

(8)     People v. Quinn, 153 Misc.2d 139 (N.Y.Dist.Ct. 1991)

 

Like Baity and Daly, the Court in Quinn separately analyzed the viability of both DRE and HGN testing.  In doing so, the Court characterized HGN as one of the three “best” components of DRE.  Relying upon the expert testimony of an Optometrist, a Research Psychologist from the Southern California Research Institute, several physicians, and the Chief Toxicologist for the Suffolk County Medical Examiner’s Office, the Court held “that the People have successfully established that both the HGN test and the DRE protocol meet the [Frye standard].”  Id. at 151. In addition, the Court observed that “nothing contained in the [DRE] protocol is a new invention.”  Id. at 152.

 

D.      Horizontal Gaze Nystagmus Component of DRE

It is abundantly clear that the application of DRE as defined by the International Association of Police Chiefs – the organization that certified Cpl. Gamez – includes HGN as a component.[5]  At least as of yet, no Pennsylvania appellate case has upheld the admissibility of HGN testing.  In fact, three separate Pennsylvania Superior Court decisions have declared HGN to be inadmissible due to the absence of an appropriate scientific foundation.

HGN testing was first presented to the Superior Court in 1987.  In Commonwealth v. Miller, 532 A.2d 1186 (Pa.Super. 1987), the Trial Court admitted testimony regarding HGN notwithstanding a Frye challenge proffered by the defense.  The sole evidence produced by the Commonwealth in support of HGN testing was from the arresting police officer whose only specialized training was a two day course on how to properly employ the HGN test.  No expert testimony or evidence was presented showing that HGN was generally accepted in the scientific community.  The Superior Court held that the arresting officer’s training on the administration of the HGN test was insufficient to qualify him to testify about the scientific principles underlying the test.  Id. at 1189-90.  However, the Court emphasized:

 

We, however, decline to determine the validity and future admissibility of the HGN test since the record presently before us is bereft of any legal or scientific discussion regarding the HGN test’s validity or admissibility.  Our holding is premised solely on the Commonwealth’s failure to present an adequate foundation regarding the HGN’s tests validity and admissibility.

 

Id. at 1190.

 

Miller was cited and followed in both Commonwealth v. Apollo, 603 A.2d 1023 (Pa.Super. 1992) and Commonwealth v. Stringer, 678 A.2d 1200 (Pa.Super. 1996).  In both cases, the Superior Court decried the lack of expert scientific foundational testimony.  In Stringer, the Superior Court stated:  “[U]ntil our Supreme Court addresses this issue, Pennsylvania law requires that an adequate foundation be set forth establishing that HGN testing is generally accepted in the scientific community, including the medical science field of ophthalmology.”  Id. at 1203.  In Apollo, the Superior Court stated that the Commonwealth’s “expert” testimony on HGN was comprised “largely based on [the witness’] own personal views and observations.”  Like Miller, the decisions in Stringer and Apollo were fact-specific; both cases left open the possibility that HGN testing would be admissible if a proper scientific foundation is presented.

E.      Commonwealth v. Bradley Brown

 

On June 23, 2010, President Judge John Tylwalk of this Court authored a twelve page Opinion in the case of Commonwealth v. Bradley Brown, CP-38-CR-00120-2010 (June 23, 2010).  The primary issue presented to Judge Tylwalk was whether a Pennsylvania State Police Trooper should be permitted to provide expert testimony regarding DRE.  In Brown, the Commonwealth presented testimony from Trooper Jeremy Baluh, who was a Certified Drug Recognition Expert.  The Defendant objected and Judge Tylwalk conducted a Frye hearing.  The only witness presented by the Commonwealth at the Frye hearing was from Tpr. Baluh himself.

Tpr. Baluh testified that the DRE protocol is “managed and coordinated” by the International Association of Chiefs of Police with support from the National Highway Traffic Safety Administration.  Tpr. Baluh described the extensive training he received to become a DRE expert.  He explained that he was trained in a twelve step process designed to detect an individual’s level of impairment.  On cross-examination, Tpr. Baluh admitted he had never been qualified as an expert and he was unaware of any peer reviewed studies or statistical studies that determined either accuracy or “false positives” resulting from a DRE analysis.

Judge Tylwalk lamented that “the Commonwealth failed to present any witness who could testify as to the scientific validity of DREs and concurrently the wide acceptance such evaluations have received.”  (Slip Opinion at 12).  Based upon the paucity of the record before him, Judge Tylwalk excluded expert testimony of DREs.  However, Judge Tylwalk included a caveat to his decision:

For these reasons we are constrained to hold that Trooper Baluh’s testimony concerning his conclusion pursuant to the DRE is inadmissible.  However, Trooper Baluh may testify as to his observations of the Defendant.

 

(Slip Opinion at 12) (emphasis added).

 

III.      ANALYSIS

Based upon the testimony presented at the December 12, 2012 hearing and the research we have outlined above, we reach multiple conclusions regarding the Commonwealth’s DRE evidence.  We will outline our conclusions and the reasons for them seriatim.

A.      Horizontal Gaze Nystagmus Is A Component Of A DRE Analysis                                                                                                      

 

At no point within Cpl. Gamez’s testimony are the words “horizontal gaze nystagmus” uttered.  Nevertheless, it is plainly apparent to us that HGN is a component of any properly performed DRE analysis.  In his testimony, Cpl. Gamez testified that he shines a light into the pupils of the suspect and watches those pupils as they attempt to follow the light.  This is precisely how HGN testing is performed.  Moreover, our review of DRE case law reveals that a properly designed and implemented DRE analysis must include HGN testing.  Unless the Pennsylvania State Police has decided to depart from the DRE paradigm created in California and employed throughout the country – and we certainly do not believe that the State Police would depart from this model – then HGN must be considered a component of Cpl. Gamez’s protocol.[6]

B.      HGN Is Not Admissible In Pennsylvania Absent A Proper Scientific Foundation                                                                                     

Our Superior Court has clearly articulated in Miller, Apollo, and Stringer that HGN testing will not be admissible in Pennsylvania Courts unless an adequate scientific foundation is presented.  At least as of this point in time, no record containing scientific support for HGN has found its way to our appellate courts.  Until or unless a record containing scientific support for HGN is created and presented to our appellate courts, the conclusions of Miller, Apollo, and Stringer remain the law of this Commonwealth.  Accordingly, HGN test results will not be admissible absent supporting scientific evidence to establish the reliability and general acceptance of HGN.

C.      The Record Presented To Us Does Not Contain Sufficient Foundational Support For The Admissibility Of HGN                     

 

The only witness presented by the Commonwealth at the December 12, 2012 hearing was with Cpl. Gamez.  Cpl. Gamez is very well-trained in conducting a DRE analysis.  However, Cpl. Gamez either could not or would not testify about the science underlying DRE.  He stated that he was unaware of peer reviewed studies regarding the reliability of DRE and could not provide information regarding “false positive rates” with respect to DREs.  As we evaluated the comprehensive legal opinions written by the courts in Everett, Williams, Baity, Sampson, and Quinn, it is plainly apparent that Cpl. Gamez did not provide the type of foundational evidence that courts supporting DRE had at their disposal.

With respect to HGN, our Superior Court practically invited law enforcement to present scientific or medical evidence and strongly implied that such evidence would support the admissibility of HGN testing.  On the other hand, the Superior Court clearly declared that without such medical or scientific foundational support, HGN test results will not be admissible.  Here, Cpl. Gamez’s testimony fell far short of the threshold required to support admissibility of HGN testing.  Therefore, we are constrained by Pennsylvania’s precedent to conclude that Cpl. Gamez’s examination of the DEFENDANT’s eyes must be excluded as lacking proper scientific support.

D.      DRE Should Not Be Admitted As “Scientific Evidence”

 

There are several reasons why we cannot admit DRE as “scientific evidence”:

• President Judge Tylwalk held in Brown that testimony of a State Police Officer certified in performing DRE will not be enough to support its admission as scientific evidence.  The record before us contains little more than what was presented in Brown.  Therefore, the doctrine of stare decisis compels us to reach a result identical to that reached by Judge Tylwalk.
• HGN is an important component of DRE. Until medical and/or scientific evidence is presented to support the viability of HGN testing, it will not be admissible in Pennsylvania.  No such evidence was presented in this case.  Therefore, Cpl. Gamez’s HGN examination cannot be presented to the jury.  Without HGN, the DRE protocol as described and approved by cases throughout the country would be neither complete nor scientifically viable.
• We agree with the observation of the Washington Supreme Court in Baity; the DRE protocol “in the main, dresses in scientific garb that which is not particularly scientific.”  Baity, supra.  We also agree with the Minnesota Supreme Court that “Drug recognition training is not designed to qualify police officers as scientists but to train officers as observers.”  See State v. Klawitter, supra, at 585.

E.      To Present His Opinion, Cpl. Gamez Need Not Be Qualified As An Expert Witness                                                                                                                                                     

As outlined in Neiswonger, Yedinak, and Davies, police officers may render an opinion with respect to whether a defendant was incapable of safe driving as a result of using controlled substances. The only predicates to such testimony are:  (1) the police officer must have personally perceived the Defendant’s appearance and acts; and (2) the police officer must be “personally familiar with the effects of narcotics.”  In this case, Cpl. Gamez personally evaluated the DEFENDANT.  In addition, his training has rendered him uniquely familiar with the effects of narcotics.  Therefore, we will follow Judge Tylwalk’s lead and will permit Cpl. Gamez to describe his “observations.”  Moreover, the Court will allow Cpl. Gamez to render an opinion regarding the DEFENDANT’s drug-induced intoxication and whether his intoxication rendered him incapable of safe driving.  However, this opinion will not be classified as an “expert” opinion, and we will not permit Cpl. Gamez to describe or rely upon the accuracy or generally accepted use of the DRE protocol.

 

IV.     CONCLUSION

Classifying a witness as an “expert” in a “field of science” is not something that Courts can or should do blithely.  When a Judge classifies a witness as an “expert,” this cloaks the witness with an aura of authenticity.  When the “science” is legitimate and the “expert” is qualified, this aura can be appropriate.  Not so in this case based upon the record presented by the Commonwealth in support of its DRE proffer.

With an appropriate testimonial foundation, we strongly suspect that Pennsylvania’s appellate courts will follow the DRE precedent established by their appellate counterparts from across the country.  Unfortunately, the record created in this case does not come close to what would be required to support the premise that Cpl. Gamez should be permitted to testify as an expert in DRE testing.

On the other hand, police officers have always been permitted to render opinions regarding an individual’s intoxication.  So long as an officer personally observes the suspect and has some experience in observing signs of impairment, the officer is permitted to render an opinion as to whether the driver is under the influence to such a degree that would render him incapable of safe driving.  This testimony is precisely the type of opinion that we will allow Cpl. Gamez to offer to the jury in the above-referenced case.  Nothing less would be appropriate under Pennsylvania appellate precedent, but nothing more would be supported by the sparse nature of the record before us.

Based upon the above, we will enter a Court Order that will deny the DEFENDANT’s motion to exclude testimony from Cpl. Gamez.  However, our Court Order will also preclude the Commonwealth from mentioning or describing the DRE protocol.  In the same vein, our Court Order will preclude the Commonwealth from classifying Cpl. Gamez as an “expert witness.”