State v. Daly
| Decision Date | 20 November 2009 |
| Docket Number | No. S-08-192.,S-08-192. |
| Citation | 775 N.W.2d 47,278 Neb. 903 |
| Parties | STATE of Nebraska, appellee, v. Jacob J. DALY, appellant. |
| Court | Nebraska Supreme Court |
Dennis R. Keefe, Lancaster County Public Defender, and John C. Jorgensen for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
Jacob J. Daly was convicted at a jury trial of, among other things, operating a motor vehicle while under the influence of marijuana.1 The primary issue presented in this appeal is the admissibility of a police officer's opinion that Daly was under the influence of drugs while operating his vehicle. We conclude that the officer's opinion was properly admitted, and we affirm Daly's convictions and sentences.
The vehicle Daly was driving was stopped after Lincoln police officer Christopher Monico observed Daly's car operating without a headlight. Monico smelled burnt marijuana, and he observed that Daly's eyelids were drooping and that his eyes were watery and bloodshot. Daly admitted to having smoked marijuana earlier that day and gave Monico permission to search the vehicle. Monico found, among other things, plastic bags that contained rolling paper, a small scale, and trace amounts of marijuana.
Monico summoned Officer Jesse Hilger, who had completed instruction as a "drug recognition expert" (DRE). After Hilger arrived, Monico conducted field sobriety tests. Daly's results were mixed, and Monico concluded that Daly was unable to safely operate a motor vehicle. Daly was arrested, and Hilger conducted further drug tests pursuant to standardized DRE protocol. A chemical breath test gave no indication that Daly was under the influence of alcohol, but evidence of marijuana use was found in Daly's urine.
Daly was charged by complaint with one count of driving under the influence (DUI), one count of possession of 1 ounce or less of marijuana, and one count of possession of drug paraphernalia. Daly filed a pretrial Daubert/Schafersman2 motion to determine the admissibility of the State's opinion that Daly had been under the influence of a drug. After an extensive hearing, the county court overruled Daly's motion, and the matter proceeded to a jury trial. Hilger testified at trial to his opinion, based upon Daly's poor coordination and matrix of physical symptoms, that Daly's marijuana usage had impaired him to the point that he was unable to operate a motor vehicle safely. Daly was convicted on all charges and appealed his DUI conviction to the district court, which affirmed the county court's judgment.
Daly assigns, consolidated and restated, that the trial court erred in the following respects:
(1) Overruling his motion in limine and objection to the admissibility of Hilger's DRE testimony.
(2) Allowing, at the pretrial Daubert/Schafersman hearing, expert testimony from several witnesses who testified regarding the DRE protocol. Generally, Daly argues that these witnesses were not qualified to offer the testimony that the trial court accepted for purposes of the Daubert/Schafersman hearing.
(3) Allowing, at the pretrial Daubert/Schafersman hearing, several exhibits that were supporting materials for the testimony of the witnesses to whom Daly also objected.
(4) Refusing Daly's offer of the resume of Gregory Cody, and refusing to receive cross-examination testimony of Cody and Darrell Fisher, at the pretrial Daubert/Schafersman hearing. The trial court held a consolidated hearing relating to several DUI cases. Because the State proffered Cody's and Fisher's testimony in another case, not Daly's, the court rejected Daly's proffer of evidence relating to their testimony.
(5) Taking the State's offer of two particular exhibits under advisement, but never ruling on the offer or Daly's objections to the exhibits.
(6) Overruling Daly's motion for further "findings of fact" in association with the overruling of his motion in limine.
(7) Overruling Daly's motion to strike a juror for cause because the juror, a parole officer, was an employee of the State of Nebraska.
(8) Initially overruling his Neb. Evid. R. 4043 objection to the admission of the scale found in Daly's car then, after reconsidering the objection and excluding the evidence, denying his motion for mistrial.
(9) Overruling a motion for mistrial that Daly claims he made during closing argument.
(10) Overruling Daly's motion for new trial and committing cumulative error.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.4 The standard for reviewing the admissibility of expert testimony is abuse of discretion.5 An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.6
Daly's principal contention on appeal is that the court erred in permitting Hilger to testify that in his opinion, Daly was impaired by the use of marijuana. This contention primarily rests on two general contentions—first, that the DRE protocol is unreliable, and second, that Hilger's training and experience with the DRE protocol did not provide sufficient foundation for him to render an expert opinion. And Daly makes several other arguments about the conduct of the Daubert/Schafersman hearing. We address Daly's arguments in turn.
The DRE program is a nationally standardized protocol for identifying drug intoxication based upon a program first designed by the Los Angeles Police Department. The protocol is designed to identify seven different categories of drugs and the physical symptoms associated with each category. For example, the behavioral symptoms associated with marijuana intoxication are
impaired attention, impaired attention spans, forgetting to do things, forgetting [things] in mid-sentence . . .; inappropriate euphoria, such as laughing or smiling during an incident that's fairly serious; an impaired ability to divide attention, to do more than one thing at the same time, maybe concentrating on colors or lights rather than the overall environment.
Symptoms also include bloodshot eyes; an elevated heart rate; and sometimes, body tremors. Under the DRE protocol, officers are trained in a step-by-step procedure to examine various clinical or physiological indicators to determine what drugs a suspect might have used.
A field DRE examination generally involves making three determinations: first, that a person is impaired and that the impairment is not consistent with alcohol intoxication; second, the ruling in or out of medical conditions that could be responsible for the signs and symptoms; and third, what type of drug is responsible for the impairment. The process is systematic and standardized. A DRE officer uses a "face sheet" to record his or her observations—a standardized form with prepared entries for the various tests and observations the officer must perform.
The process begins with a breath alcohol test; then, if the DRE officer is not the arresting officer, the DRE officer interviews the arresting officer about the circumstances of the arrest and the suspect's behavior. The DRE officer then conducts the preliminary examination. The DRE officer checks the suspect's pulse, does an initial check of the nystagmus (involuntary jerking movements) of the eyes, and checks the suspect's pupil size. And a series of medical questions is typically asked.
Assuming that the suspect appears to be under the influence of drugs and no medical condition is present, the DRE officer proceeds to conduct an eye examination. The officer administers horizontal and vertical gaze nystagmus tests in each eye, and checks for a lack of convergence, or the eye's ability to converge on an object approaching the face. The next step is to conduct the "divided attention" tests, composed of four different tests that are similar to familiar field sobriety tests. The suspect is asked to estimate a period of time while balancing in a particular way, perform a "walk-and-turn" or "walk-the-line" test, perform a one-leg stand test, and perform a "finger-to-nose" test.
The DRE officer then conducts a vital signs examination. The officer rechecks the suspect's pulse and measures the suspect's body temperature and blood pressure. Then the officer conducts a "dark room examination," during which the suspect's pupils are examined under different light conditions. After that, the officer uses a penlight to examine the suspect's mouth and nose for debris, drugs, or physiological changes that can take place with repeated drug use. The next step is a check for muscle tone—the officer evaluates the suspect's voluntary muscles to see if they are abnormally rigid or flaccid. The officer then checks for injection sites and takes the suspect's pulse again. Finally, the examination concludes with an interview of the suspect.
When the examination is concluded, the DRE officer forms an opinion based on his or her observations. Then, the final step in the process is the use of toxicology to analyze samples taken from the suspect for the presence of drugs.
In other words, the 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. Dr. Zenon Zuk testified for the State that the DRE protocol is based on the well-established concept that drugs cause observable signs and symptoms, affecting vital signs and changing the physiology of the body.
A 1984 study, conducted by the Johns...
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...and admissible; and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned. State v. Daly , 278 Neb. 903, 775 N.W.2d 47 (2009). An “abuse of discretion” occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable,......
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...and admissible; and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned. State v. Daly , 278 Neb. 903, 775 N.W.2d 47 (2009). An “abuse of discretion” occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable,......
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Overview
...and admissible; and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned. State v. Daly , 278 Neb. 903, 775 N.W.2d 47 (2009). An “abuse of discretion” occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable,......