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Drug recognition evaluator passes Daubert test for admissibility of expert testimony

State v. Andrew G. Chitwood, 2016 WI App 36; case activity (including briefs)

In theory, Wisconsin’s new test for the admissibility of expert testimony “is flexible but has teeth.” State v. Giese, ¶19. In practice, it’s flexible and has dentures. Literally every Daubert challenge litigated on appeal since Wis. Stat. §907.02 became effective has failed. The court of appeals has held that expert testimony regarding the retrograde extrapolation of a person’s blood alcohol concentration passes Daubert (See Giese). So does a doctor’s testimony based solely on his personal experience with prenatal and delivery case (see Seifert). So does a social worker’s testimony based solely on her observations of behavior in child abuse victims (see Smith). And now with Chitwood so does expert testimony by a drug recognition evaluator.

Don’t get too excited. Seifert is pending in SCOW. We’re still waiting for the oral argument date. See docket. And the petition for review filed in Smith has been held in abeyance pending the decision in Seifert. See Smith docket.  So we don’t have the final word on whether an expert opinion based only on his or her extensive personal experience in a field can satisfy Daubert‘s reliability standard.

Back to Chitwood. A drug recognition evaluator (DRE) is a law enforcement officer who has received specialized training to determine whether a person is under the influence of drugs or alcohol. If the person is impaired by drugs, then the DRE should be able to correctly determine which drug caused the impairment 80% of the time. A DRE uses a 12-step procedure to determine whether someone is under the influence of drugs or alcohol. Slip op. ¶12. In this case, the DRE skipped 3 of the 12 steps. He nevertheless opined that Chitwood, who was involved in a single-car accident, was impaired by a central nervous system depressant and a narcotic analgesic. Chitwood argued that the DRE’s failure to complete all 12 steps rendered his opinion unreliable.

The court of appeals disagreed. It walked through numerous studies suggesting that the DRE protocol yielded an acceptable rate of error. Then it observed:

¶44  The theory behind the protocol can be tested and has received adequate scrutiny in the relevant community. Notably, Chitwood does not even dispute that, when used in its entirety, the DRE protocol is reliable. Nor does Chitwood challenge the reliability of any individual step in the DRE protocol. Rather, he contends that the State failed to show that a DRE protocol when incompletely employed is capable of producing a reliable result.

¶46 . . . While in this instance Peskie was unable to complete all twelve steps of the DRE protocol, this did not, as he testified, preclude him from coming to a conclusion based on the tests he conducted that Chitwood was impaired by drugs. As Peskie testified, “ideal[ly]” all twelve steps would be completed. But, we deal in realities, not idealities. It is a reality that where a driver is impaired by drugs, there may be many reasons why a drug recognition evaluator cannot complete the entire DRE protocol. The suspect may have been injured in an accident, have a physical condition, or be so impaired that he or she cannot perform some of the tests. See International Association of Chiefs of Police, Drug Recognition Expert Course (DRE) 7-Day School, HS 172 R5/13 ed. (noting that there may be times, because of injuries, an uncooperative suspect, or equipment failure, that a drug recognition evaluator will be unable to complete each step of the evaluation). But, the drug recognition evaluator, if he or she is able, can still come to a conclusion on the suspect’s impairment by drugs based on those tests that were able to be completed.

The admissibility of an expert opinion based on a completed DRE protocol is an issue of first impression for Wisconsin. Ditto re an opinion based on an uncompleted DRE protocol. Chitwood’s briefs cited non-Wisconsin cases holding that opinion testimony based upon an uncompleted DRE protocol does not satify Daubert but the court of appeals just ignored those decisions. Don’t be surprised if SCOW weighs in on this issue.

Cynics may note that in Giese, Smith and Chitwood the court of appeals displayed gymnast-like flexibility in finding that the State’s experts satisfied Daubert. On Point trusts that, when presented with the opportunity, the court of appeals will also bend over backwards for defense experts.

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