State v. Dacey

• Decision Date: 21 July 2021
• Docket Number: Docket No. 47497
• Citation: 491 P.3d 1205,169 Idaho 102
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Timothy Michael DACEY, Defendant-Appellant.

169 Idaho 102

491 P.3d 1205

STATE of Idaho, Plaintiff-Respondent,

v.Timothy Michael DACEY, Defendant-Appellant.

Docket No. 47497

Supreme Court of Idaho, Boise, June 2021 Term.

Opinion filed: July 21, 2021

Ada County Public Defender's Office, Boise, for Appellant. Sarah Tompkins argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Mark Olson argued.

MOELLER, Justice.

An Ada County jury found Timothy Dacey ("Dacey") guilty of Driving Under the Influence ("DUI"), and Dacey received a second offense sentencing enhancement. During his trial, the magistrate judge allowed Officer Jessica Raddatz ("Raddatz"), a trained drug recognition expert, to testify as a lay witness about the physical indicators that a person is on the "downside" from methamphetamine use. On intermediate appeal, the district court affirmed. Dacey argues the district court erred in affirming his conviction and sentence because (1) the "downside" testimony qualified as expert witness testimony, which should have been disclosed in discovery, and (2) the magistrate court failed to conduct the appropriate analysis to determine whether this alleged expert witness testimony was admissible. Dacey also asserts that the district court on intermediate appeal applied the wrong legal standard in determining that any error was harmless. For the reasons stated below, we reverse the decision of the district court and remand with direction to vacate Dacey's judgment of conviction. We also announce that henceforth, testimony from a drug recognition expert requires the State to comply with the expert witness disclosure requirements set forth in Idaho Criminal Rule 16(b)(7).

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Boise Police Officer Michelle DeGrange ("DeGrange") responded to an early morning call for a welfare check on a man slumped over in a parked truck with the lights on and the engine running. Dacey was asleep behind the wheel. When DeGrange awoke him, she reported, Dacey's pupils were dilated and he "spoke slowly and kind of with a thick tongue." Dacey told the officer he owns a tiling business and was waiting for a job, although he could not say exactly where the job site was. DeGrange then administered a series of field sobriety tests. Dacey passed the horizontal gaze nystagmus (scoring two out of six decision points), but he failed the walk-and-turn (scoring seven out of eight decision points) and one-leg-stand (scoring three out of four decision points). DeGrange arrested Dacey on suspicion of DUI. However, a subsequent breath test indicated there was no alcohol in Dacey's blood. As a result, DeGrange requested that Officer Raddatz, a certified drug recognition expert, meet them at the Ada County Jail to perform additional tests.

Raddatz defined her role as a drug recognition expert as "an officer who receives specialized training in recognizing types of drug, drug categories, and the impairment they may or may not cause with an individual, and if that individual would be able to operate a motor vehicle safely on the roadway or not." Unlike field sobriety testing, the drug recognition evaluation ("DRE") does not result in a specific score for the tests performed, nor in a binary pass or fail outcome. Instead, the drug recognition expert assesses the "totality of the circumstances" based on the test performance and physiological indicators in order to determine whether the driver is impaired and which drugs he or she may have taken.

Raddatz conducted the DRE of Dacey in the sally port of the Ada County Jail, a noisy and chaotic space where state prisoners were being transferred as Dacey struggled through several of the tests: the walk-and-turn, one-leg-stand, modified Romberg, and finger-to-nose. During the physical examination, Raddatz observed abnormal physiological signs she testified are often associated with impairment—Dacey's eyes showed a lack of convergence, his pupils failed to rebound to a normal size after dilation, he had a rigid muscle tone, and there was a pink substance around his nostrils and mouth when viewed under a UV light. However, she also testified that Dacey's blood pressure and pulse were normal, his pupils dilated normally under different lighting conditions, and his eyes showed no nystagmus. When questioned, Dacey admitted he had snorted methamphetamine "like six days ago." Raddatz concluded that Dacey was impaired, either because of a central nervous system stimulant, "the downside of that," or a narcotic analgesic. Although a later blood test showed that Dacey had methamphetamine and amphetamines in his system, it could not confirm whether Dacey was impaired at the time of testing. Dacey was charged with DUI and a sentencing enhancement because this was his second DUI in ten years.

B. Procedural Background

Prior to trial, Dacey requested the State disclose any expert testimony, including "[a] written summary or report of any testimony that the State intends to introduce pursuant to rule 702, 703, or 705 of the Idaho Rules of Evidence at trial or hearing; including the witness’ opinions, the facts and data for those opinions, and the witnesses [sic] qualifications." See I.C.R. 16(b)(7). The State's discovery response listed one potential expert witness—the toxicologist who evaluated Dacey's blood sample. The State did not disclose Raddatz as an expert witness; however, she was listed as a lay witness.

On the morning of trial, Dacey learned that the State intended to have Raddatz testify, in part, about the physiological indicators that a person is on the "downside" of a methamphetamine high. Dacey notified the trial court about his concerns that Raddatz had not been disclosed as an expert witness because the indicators Raddatz intended to testify about were not included in the DRE handbook.¹ As a result, the defense argued that the basis for Raddatz's knowledge regarding the "downside" of intoxication was not part of her normal training and had not been established. Dacey requested that he be able to voir dire Raddatz outside the presence of the jury in aid of his objection. The trial court denied his request. Dacey continued to express concern before the magistrate court that Raddatz's testimony would not actually center on information from the DRE handbook—which he agreed would not require expert disclosure—but would instead center on her expert opinion that a person not exhibiting the typical signs of intoxication as described in the handbook could still be on the "downside" of methamphetamine intoxication. The magistrate court, however, determined that Raddatz's testimony would be based on her personal observations, rather than expert knowledge. The magistrate court concluded that any observations Raddatz made that were contrary to the DRE handbook could be dealt with on cross-examination. Dacey continued to assert that testimony as to the signs of methamphetamine withdrawal and associated intoxication required expert disclosure. However, the magistrate court disagreed:

I don't think it takes an expert to say that a stimulant means that someone is stimulated, and that after a person is stimulated they reach a point of stimulation that starts to recede, and at some point they go the other direction, and I have seen lots of people over time that use drugs and they tend to — you know, to spike in terms of energy levels so forth and to get lethargic and towards the downside ... I don't think that requires a toxicologist. I think that's logical. And I think you can cross-examine on it.

At trial, Raddatz testified about the DRE she performed on Dacey, as well as her special training and certification as a "drug recognition evaluator" —the State had volunteered to avoid using the word "expert " when presenting Raddatz to the jury.² During her testimony, Raddatz opined "that Mr. Dacey was either under the influence of a central nervous system stimulant, the downside of that, you know, kind of coming down on it. Or a narcotic analgesic." She also explained downside means "[i]t's basically your body's physical reactions to a particular substance, leaving your body or if you're jonesing for it, I guess. It depends on the drug and the person." When asked why Dacey's blood pressure, heart rate, and body temperature did not comport with someone under the influence of methamphetamine, Raddatz explained that his physiological traits "would be consistent with someone who is experiencing the downside of a central nervous stimulant." The magistrate court overruled Dacey's objection to the testimony. Raddatz testified that her opinion was "based on everything I saw, the totality of what I saw at that time."

On cross-examination, counsel for Dacey questioned Raddatz about her training and the portions of the DRE performed on Dacey that did not indicate methamphetamine impairment according to the DRE manual and matrix. Again, Raddatz reiterated that her conclusions were not the result of numerical test scores she "plugged" into the matrix; rather, they were based on the totality of all the tests and her observations.

On redirect, Raddatz testified that she had received specific training on the downside effects of certain drugs, including methamphetamine, and that she had supplemented this knowledge on a regular basis with annual trainings, personal study of peer reviewed articles, and her own self-directed research. Raddatz also said that the anomalous results in Dacey's case were consistent with someone experiencing the "downside" of methamphetamine use rather than the "upside," which the DRE matrix was designed to diagnose. Again, counsel for Dacey objected, and the magistrate court overruled the objection, allowing Raddatz to clarify that certain physiological characteristics would be different when a person was experiencing "downside" effects from methamphetamine. Specifically, Raddatz testified that the pupils would be returning to "homeostasis," so rather than appearing dilated, a pupil might appear normal or...