State v. Baity
| Decision Date | 03 February 2000 |
| Docket Number | No. 66876-1.,66876-1. |
| Citation | 140 Wash.2d 1,991 P.2d 1151 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Appellant, v. Michael BAITY and Edward Arnestad, Respondents. |
Nielsen, Broman & Associates, David Bruce Koch, Seattle, for Amicus Curiae on behalf of Washington Association of Criminal Defense Attorneys.
John Ladenburg, Pierce County Prosecutor, Michael Sommerfeld, Barbara Corey-Boulet, Deputies Pierce County Prosecutor, Tacoma, for Appellant State.
John Cross, Port Orchard, for Respondents.
We are asked in this case to determine if a drug recognition protocol, used by trained drug recognition officers to determine if a suspect's driving is impaired by a drug other than alcohol, meets the requirements of Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (1923), for novel scientific evidence. We hold that the protocol meets the mandate of Frye. An officer may testify concerning such drug impairment, subject to the limitations set forth in this opinion, upon meeting the requirements of ER 702 and 703 for the admission of expert opinion testimony. We reverse the suppression orders of the Pierce County District Court and remand the cases for further proceedings consistent with this opinion.
Is a drug recognition program novel scientific evidence generally accepted in the scientific community, thus satisfying the Frye test for admissibility?
The Drug Evaluation and Classification Program (DECP) was developed by the Los Angeles Police Department (LAPD) in the 1970's. The program's purpose is to train officers to recognize the behavior and physiological conditions associated with seven categories of psychoactive drugs, to determine whether a suspect is driving while impaired by a drug other than alcohol. In most jurisdictions, officers trained in this program are known as Drug Recognition Experts (DREs).1
In 1984, the National Highway Traffic Safety Administration (NHTSA) and the National Institute on Drug Abuse sponsored a controlled laboratory evaluation of the DRE program, conducted by researchers at the Johns Hopkins University. Clerk's Papers at 1477 (U.S. Dep't of Transp. Nat'l Highway Traffic Safety Admin., Drug Evaluation and Classification Program, Briefing Paper (July 1992)). Subsequently, the NHTSA developed a standardized curriculum for training police officers as DREs and, utilizing this training, initiated DECP's in states meeting the site selection criteria. As the DRE program continued to expand, NHTSA recognized the need for an organization to assume oversight of the program on a national level. See Thomas E. Page, MA, The Drug Recognition Expert (DRE) Response to the Drug Impaired Driver: An Overview of the DRE Program, Officer, and Procedures (Jan.1995) . In 1989, the International Association of Chiefs of Police (IACP) assumed national oversight of the program and became the certifying and regulating body for the DRE program. Id.
To be certified as a DRE, an officer must complete a three-phase program of instruction. First, the officer must attend a 16-hour "preschool," which involves an overview of the DRE program, and instruction on the seven drug categories and basic drug terminology. Second, the officer must complete a 56-hour DRE school program. This program consists of 30 modules of instruction, including an overview of the development and validation of the drug evaluation process, and sessions on each drug category. In addition to classroom instruction, the program requires practical field training. Additionally, the officer must pass a written examination before beginning the next phase of training. Finally, the officer begins certification training. Certification requires the officer participate in a minimum of 12 complete examinations under the supervision of a trained DRE instructor. Of those 12 evaluations, the officer must identify an individual under the influence of at least 3 of the 7 drug categories. The officer is required to obtain a minimum 75 percent toxicological corroboration rate. The officer must then pass another written examination and a separate skills demonstration examination performed in front of two DRE instructors before he or she becomes certified as a DRE. Finally, the officer must maintain an up-to-date resume or curriculum vitae.
Additionally, a DRE must be recertified every two years. During that time period, the DRE is required to conduct four hands-on evaluations and to attend eight hours of in-service training.
The Washington State DRE program began in March 1996, although it did not become operational until July 1997. The Washington State DRE program complies with the IACP standards, and officers in this state use the same 12-step protocol adhered to nationally. Currently, the program is used in King, Pierce, Thurston, Yakima, and Spokane Counties.
DREs are trained to determine whether a driver is under the influence of drugs, and then to determine the type of drug causing the observable impairment. To accomplish this, DREs classify drugs into seven categories: (1) central nervous system (CNS) depressants, (2) inhalants, (3) phencyclidine (PCP), (4) cannabis, (5) CNS stimulants, (6) hallucinogens, and (7) narcotic analgesics. The training is based on the premise that each drug within a category produces particular signs and symptoms. The effect of any given drug can vary from drug to drug, primarily in terms of intensity and duration of action, and is dependent on many factors, including the amount ingested, the user's tolerance to the drug, and the drug's purity. In theory, the DRE protocol enables the DRE to rule in (or out) many medical conditions, such as illness or injury, contributing to the impairment.
To determine whether a driver is under the influence of a specific category of drugs other than alcohol, DREs use a 12-step procedure based on a variety of observable signs and symptoms that are known to be reliable indicators of drug impairment. All DREs, regardless of agency, use the same procedures, in the same order, on all drivers. In theory, a DRE will not reach a final decision until the entire evaluation is complete.
The 12-steps of the protocol are:
(1) breath (or blood) alcohol concentration;
(2) interview of the arresting officer; (3) preliminary examination; (4) eye examinations; (5) divided attention tests; (6) vital signs examination; (7) darkroom examination of pupil size; (8) examination of muscle tone; (9) examination of injection sites; (10) statements, interrogation; (11) opinion; (12) toxicology analysis.
A DRE's opinion is based not on one element of the test, but on the totality of the evaluation. When in doubt, the DRE must find the driver is not under the influence.
The present case involves the use of the DRE protocol in assessing the condition of two drivers. On November 29, 1997, Edward Arnestad was arrested after running into the rear end of a car stopped at a traffic light. At the scene, Arnestad evidenced slurred speech, watery eyes, and the odor of intoxicants. He denied any alcohol use, but admitted use of drugs. He failed field sobriety tests. The State subsequently charged Arnestad with one count of driving under the influence of intoxicating liquor and or drugs (DUI), in violation of RCW 46.61.502(1)(b) and (c).2
On January 29, 1998, Michael Baity was arrested and cited for DUI and driving while license suspended in the third degree after an officer observed him in his car speeding and weaving lane to lane. Baity smelled of alcohol. He admitted to marijuana use. The responding DRE observed Baity's tongue was green in color and his eyes were somewhat dilated, exhibited rebound dilation, and did not demonstrate nystagmus. Alcohol and marijuana were found in his car. The State charged Baity with one count of DUI, in violation of RCW 46.61.502(1)(b) and (c), and one count of driving while license suspended in the third degree, in violation of RCW 46.20.342(1)(c).
In a pretrial motion in Baity's case, the State sought to qualify the DREs as experts and to obtain a ruling on the admissibility of DRE evidence with respect to the defendant's drug impairment and the evaluation process used to determine that impairment. Specifically, the State sought to admit testimony that Baity's impairment was consistent with the symptoms associated with one of seven categories of drugs. Additionally, the State moved to admit testimony regarding the use of the horizontal gaze nystagmus (HGN) test,3 both for the detection of alcohol and for the detection of drugs. Baity moved to suppress all DRE evidence, including the HGN test, on the basis that the DRE program and protocol constitute novel scientific evidence subject to the Frye test for admissibility.
Since identical evidentiary issues were simultaneously raised before each of the five Pierce County District Court Number One judges,4 the cases were consolidated for purposes of a Frye hearing to avoid unnecessary expense and time. The court employed the unusual procedure of sitting "en banc," although each individual judge was required to exercise his or her independent discretion with respect to a decision on the admissibility of the evidence.5 At the conclusion of a four-day Frye hearing, the court indicated it would take the matter under advisement and issue an opinion at a later date.
On April 21, 1998, Baity and Arnestad appeared separately for trial before Judge Culpepper.6 Judge Culpepper ruled in both cases that the DRE program, which formed the basis of the officer's opinion regarding impairment, did not meet the Frye standard for admissibility. He then excluded testimony as to the defendants' alleged drug impairment.
On May 19, 1998, the Pierce County District Court judges issued their opinion titled, "Opinion Regarding Admissibility of HGN and DRE." In that opinion, they denied the defendants' motions to suppress the field sobriety tests (FSTs) as to their alcohol...
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