October 2013 Bar Bulletin
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October 2013 Bar Bulletin

DUI-D Impairment: Drug Recognition Expert Testimony

By Ian Franzel


With much-needed innovation afoot as the State crafts its legal pot regime, usage rates will go up and law enforcement will be trying to drop the hammer on marijuana-impaired drivers. Concurrently with rule-making on commercial sales, prosecutors must also develop procedures for convicting DUI-marijuana defendants ("DUI-D 'drug' Defendants").

Here is the starting-off point. Subject is pulled over, but refuses a blood test. After being booked, subject does the DUI-D interview, which includes a pulse check, horizontal gaze check, etc., with a Drug Recognition Expert ("DRE officer"). How much of a DRE officer's testimony is admissible at trial?

The State will present the written DRE report and testimony of a/the DRE officer, including the fact that the subject refused a blood test. The scientific "acceptance" under Frye v. U.S. of the DRE protocol and its common use has been acknowledged in Washington courts.1 The DRE consists of a 12-step testing protocol,2 similar to a uniform, alcohol field sobriety test.3

The untested gray area in post-I-502 marijuana prosecution will result from the possible defense arguments that: 1) the DRE witness was not the examining officer and; 2) the DRE officer does not have the training or experience required by ER 702. Where "practical experience may be sufficient to qualify a witness as an expert,"4 what kinds of contests will be launched with regard to the experience possessed by the witness?

Training large numbers of police officer experts and giving them an adequate drug-arrest resume may be a tough burden for the State to meet. If there are only 200 such officers around the state,5 will the conviction rate be high enough?

Washington courts may hold strong with a populist bend in this area though. The Division Two Court of Appeals recently held that an officer who was not trained as a DRE officer did not possess adequate "knowledge, skill, experience, training, or education" to enable that officer to provide opinion testimony concerning the defendant's dilated pupils.6

Elsewhere, other courts have created unique regional precedents regarding how much experience a DRE officer needs before being considered fit to testify. In Oregon, an uncertified DRE trainee will not suffice experience-wise.7 In Arizona, testimony of a mere DRE trainee was allowed and its admission upheld on appeal.8

Will the physical presence of the examining officer be required in Washington trial courts? What are the judge's considerations for making that a requirement? Courts have "long recognized the weight the jury puts on an expert's testimony because of the Aura of Special Reliability and Trustworthiness surrounding it."9 Various other jurisdictions are coming down in favor of requiring the examining officer himself to testify at trial.10

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