Williams v. State, 95-2476

• Court: Court of Appeal of Florida (US)
• Writing for the Court: GERSTEN; SHEVIN; COPE
• Citation: 710 So.2d 24
• Parties: 23 Fla. L. Weekly D752 Frederick WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
• Docket Number: No. 95-2476,95-2476
• Decision Date: 18 March 1998

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710 So.2d 24 23 Fla. L. Weekly D752 Frederick WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee. No. 95-2476. District Court of Appeal of Florida,
Third District. March 18, 1998.
Rehearing Denied June 10, 1998.

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Bennett H. Brummer, Public Defender, and Craig J. Trocino, Special Assistant Public Defender, for appellant.

The Florida Association of Criminal Defense Lawyers, Miami Chapter, and Robert S. Reiff, and H. Scott Fingerhut, Miami, Amicus Curiae for appellant.

Robert A. Butterworth, Attorney General, and Paulette R. Taylor, Assistant Attorney General; Katherine Fernandez Rundle, State Attorney, and Brenda Mezick, and Stephen Talpins, Assistant State Attorneys, for appellee.

Before COPE, GERSTEN and SHEVIN, JJ.

GERSTEN, Judge.

Charged with driving under the influence of a controlled substance, defendant Frederick Williams appeals an order admitting into evidence drug recognition expert opinion testimony and evidence based upon a twelve step drug influence examination protocol. Notwithstanding the many twists and turns along the DUI enforcement road, we affirm, concluding that the drug recognition protocol does not constitute an apotheosis of drug impairment prosecutions.

I. FACTS

Frederick Williams (the "defendant") was stopped at a field sobriety checkpoint. After failing a series of field sobriety tests, he was given a breath test which registered an alcohol level of 0.07, just below the legal limit of 0.08. Two police officers trained as drug recognition experts then asked the defendant to take a Drug Influence Evaluation test ("DIE"), because the breath test result was not consistent with their observations of the

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degree of impairment. ¹ Based on the results of the DIE, the officers concluded the defendant was under the influence of alcohol, a central nervous system stimulant, and cannabis. The officers then arrested the defendant for driving under the influence. The defendant's urine sample tested positive for marijuana metabolite and cocaine.

Prior to trial, the State filed a motion in limine seeking to introduce the results obtained from the DIE. The defendant moved to exclude the evidence under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Frye test for the admissibility of scientific evidence requires that novel scientific evidence be generally accepted in the relevant scientific community as accurate and reliable. ²

At the hearing on the motion, the State presented testimony which explained that a certified drug recognition expert ("DRE") receives specialized instruction to learn the twelve step evaluation for conducting the DIE. ³ The DIE basically consists of the usual DUI investigation, including the standard field sobriety tests, with the addition of a physical examination. ⁴ The physical examination includes measuring pupil size and observing

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pupil reaction to light, taking blood pressure and pulse rate, examining the nose and mouth for evidence of drug use, and touching the arm to determine muscle tone. The information obtained by the physical exam is then recorded on a symptomatology matrix (grid chart). The various symptoms of drug use, such as an increased pulse, are matched by a process of elimination to the corresponding drug category. This grid helps to narrow the type of drugs a suspect may have in their system. ⁵ Subsets of the DRE protocol include the Horizontal Gaze Nystagmus test ("HGN"), Vertical Gaze Nystagmus test("VGN"), and the Lack of Convergence test ("LOC"). The State submitted numerous studies and articles, including testimony from several doctors, supporting the reliability of the DIE protocol. ⁶

In opposition to the motion, several doctors testified on behalf of the defendant that the protocol was flawed, and that police officers were not capable of accurately recognizing or categorizing impairment. The defendant argued that admitting the DRE scientific testimony of a minimally trained officer referred to as a "drug recognition expert" misleads the jury and prejudices DUI defendants.

The trial court allowed the police officer to testify that he concluded the defendant was impaired by specific categories of drugs based on the officers' application of the DIE protocol and matrix. The order granting the motion to admit the DRE testimony held that Frye's general acceptance standard did not apply to the DRE protocol because the

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"tests, signs and symptoms are well within the common understanding of the average layman." Alternatively, the trial court found Frye inapplicable to the DIE tests, because they are not new or novel scientific evidence.

With regard to the HGN, VGN, and LOC tests, the trial court found Frye inapplicable because these tests are not new or novel. The trial court further ruled that the State could prove blood alcohol content based upon the officers' use of the HGN test if the State laid a proper predicate establishing the testing officer's qualifications pursuant to State v. Bender, 382 So.2d 697 (Fla.1980). Finally, the trial court's order certified the following questions as of great public importance:

1. Is the Frye general acceptance standard applicable to the DRE protocol?

2. Assuming the Frye general acceptance standard is inapplicable, is DRE testimony and evidence admissible under the relevancy standard?

3. Is DRE testimony and evidence admissible if the Frye general acceptance standard is applicable?

4. May the State prove that a subject had an unlawful breath or blood alcohol level based on HGN test results alone under Bender?

The defendant accepted a negotiated plea reserving his right to appeal the order granting the motion in limine. The defendant appeals the order admitting into evidence the DRE opinion testimony, the standardized field sobriety test, and the HGN test.

II. APPLICABILITY OF FRYE TO DRE TESTIMONY AND EVIDENCE

The defendant contends that the trial court erred in admitting the DRE testimony and evidence because the State failed to establish the reliability of the DRE protocol at the hearing. According to the defendant, the DRE protocol constitutes a scientific test, and fails to meet the Frye standard as generally accepted by the relevant scientific community. We disagree and affirm the trial court's order granting the State's motion to admit the DRE testimony and evidence, including the standardized field sobriety and horizontal gaze nystagmus tests. In order to accurately address the issues as framed by the trial court, we must first distinguish between the general portion of the DRE protocol and its subsets, the HGN, VGN, and LOC.

A. General DRE Protocol Excluding HGN, VGN, and LOC

First, regarding the general portion of the DRE protocol, the Frye standard does not apply because the protocol is not scientific. The protocol essentially consists of a twelve step systematic assessment of the defendant's vital signs and physical appearance, which in fact is the usual DUI investigation, including the standard field sobriety tests, plus a physical examination. The physical examination incorporates a narrow application of techniques borrowed from the medical field, and includes measuring pupil size and observing pupil reaction to light, taking blood pressure and pulse rate, inspecting the oral and nasal cavities, and touching the arm to determine muscle tone.

These tests are clearly within the common experience and understanding of the average person. For example, the average person has had his or her blood pressure, pulse rate, and temperature taken. Similarly, the fact that pupils become larger or smaller in different lighting conditions is well within the average person's common experience, as is examining someone's nose or mouth.

Because the tests, signs and symptoms of the protocol are within the common understanding of the average layman, the general portion of the protocol is not "scientific" within the meaning of Frye. The fact that some of the examinations in the protocol are borrowed from the medical profession, does not elevate the protocol to scientific status.

Police officers and lay witnesses have long been permitted to testify as to their observations of a defendant's acts, conduct, and appearance, and also to give an opinion on the defendant's state of impairment based on those observations. See, e.g., Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); City of Orlando v. Newell, 232 So.2d 413 (Fla. 4th DCA 1970). Objective observations based on observable signs and conditions are not classified

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as "scientific" and thus constitute admissible testimony.

For example, in State v. Meador, 674 So.2d 826 (Fla. 4th DCA), review denied, 686 So.2d 580 (Fla.1996), the court held that a police officer was allowed to testify about the defendant's performance on a standard field sobriety test. In drawing a distinction between the psychomotor portion of the test and the HGN portion of the test, the court noted that the psychomotor portion consisted of objective components which are commonly understood, and therefore did not require expert interpretation. Thus, the officer was permitted to testify as to his observations of the psychomotor portion of test which were found to be in the "same category as other commonly understood signs of impairment such as glassy or blood-shot eyes, slurred speech, staggering, flushed face, labile emotions, [and the] odor of alcohol." State v. Meador, 674 So.2d at 832.

Here, the general portion of the DRE protocol consists of nothing more than objective observations and simple tests which are easily performed and commonly understood. Contrary to the defendant's assertion, the DRE's opinion is not derived from the symptomology matrix and does not constitute a medical diagnosis. The general DRE protocol is just a "list of the things a prudent, trained and experienced officer should consider before formulation or expressing an opinion whether the subject is under the influence of some controlled...