August 2003 Part One: Essential cases to know in handling challenges to scientific evidence By Leonard Stamm Defenders of persons accused of drunk driving today must not only be counselors, consolers, legal advisors, litigators, legal researchers, writers, investigators, and strategists, they must also be prepared to confront an ever widening array of scientific procedures and tests offered against defendants in court and at driver licensing hearings which are designed to prove their client’s guilt. Attorneys must understand scientific techniques and how to question reliability, accuracy, and validity, and at the same time must understand the laws and be able to navigate through a maze of contradictory and confusing cases, to see the client through to an acquittal. This article attempts to traverse the labyrinth of cases that can be used by a skilled lawyer to obtain an acquittal or at least suppression or limitation of the state’s scientific evidence. A review of the numerous cases relating to challenges to scientific evidence leads to a number of observations. First, many of the cases that can be used to exclude or limit the effect of scientific evidence in a drunk driving case actually have very little to do with science and do not require extensive scientific knowledge on the part of the litigator. These cases deal with rights of the defendant and responsibilities of the police, prosecutors, and judges, and are designed to assure the integrity of the process by which drunk driving is investigated and prosecuted. A second observation, is that many of the cases which appear on their face to be cases that favor the state, contain language enabling future defendants to raise defenses and support requests for discovery and subpoenas that would not have been possible previously. Many of the decisions contain terms such as “prima facie,” “presumption,” “reliability,” “accuracy,” and “harmless error.” These decisions, although decided in favor of the state, disclose analyses by which a defendant may argue for a different result, under different facts and circumstances, by making it clear that the government’s showing of reliability and accuracy may be rebutted by the defendant. A third observation is that there is quite a bit of overlap between different theories of exclusion. If a pending case is in a jurisdiction where one line of reasoning has been shut down by the courts or the legislature, the attorney may be able to graft the reasoning from another state’s decision on a different legal analysis to create a rationale for exclusion that has not yet been foreclosed by the courts or legislature. Most states have a case that states the foundation for the admission of a breath test. In one state, it may be a case that focuses on statutory requirements while in another it might be a Confrontation Clause case. In a state where the court has ruled that a certain test result is automatically admissible as valid scientific evidence as a result of legislative fiat, counsel may be able to borrow from another state’s Confrontation Clause decisions, for example, to argue for exclusion. In those states where “reliability” is a condition precedent to admissibility, it does not matter whether the requirement of reliability has as its source an evidentiary rule, statute, regulation, or a constitutional guarantee. Defense counsel is still empowered to engage in an investigation, fueled by the need and duty to attempt to rebut the presumption of reliability, to discover the weak link in the state’s scientific evidence; and having found the weak link, to argue for exclusion of the evidence in court or at an administrative proceeding. This article will examine ten different classes of cases that are essential to comprehensively analyzing and effectively challenging scientific evidence in drunk driving cases. The classes are validity of the scientific technique, privacy, common law foundational requirements, Fourth Amendment, due process and other similar constitutional and statutory or regulatory protections, statutory and regulatory requirements, rules of evidence, confrontation, compulsory process and discovery. A few caveats are in order. This article is limited to drunk driving cases where the defendant is challenging the government’s scientific evidence. Additionally, whenever a federal constitutional provision is held to deny relief on a particular issue, counsel should consider mounting a challenge under a state constitutional provision that may be interpreted more broadly than its federal counterpart. Finally, this article does not aim to be as comprehensive as treatises such as Scientific Evidence, Third Edition, by Paul C. Gianelli and Edward J. Immwinkelreid (Lexis Law Publishing), Drunk Driving Defense, Fifth Edition, by Lawrence Taylor (Aspen Law & Business), Drinking/Driving Litigation Criminal and Civil, Second Edition, by Don Nichols and Flem Whited (West Group), Defending Drinking Drivers, by John Tarantino (James Publishing Co.) and Defense of Drunk Driving Cases, Criminal and Civil, Second Edition, by Richard Erwin (Matthew Bender). All of these excellent resources aided in compiling citations for this article. It is not the intent of this article to cite every case relevant to scientific evidence in drunk driving cases or to analyze the cases that are cited in great depth. Rather its purpose is to provide a framework for analyzing potential challenges to scientific evidence. It will likely be necessary to do further investigation and research to determine whether a specific attack on the state’s scientific evidence will be well grounded in fact, law, and/or science in your case. The ‘Top Ten’ classes of cases: Validity of scientific evidence
The logical place to begin a discussion of cases relevant to challenging scientific evidence is Frye v. United States, 293 F. 1013 (D.C. 1923) and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). These cases articulate the standards used by most courts to determine whether a scientific technique, test, theory, process or expert opinion is sufficiently valid to be considered by the fact finder at all. They represent the threshold that the proponent of the evidence must pass in order to have the evidence admitted. Most jurisdictions follow one of these cases. In Frye, the court entertained the appeal of a murder defendant whose expert had been prevented from testifying about the favorable result of a systolic blood pressure deception test, an early form of polygraph. The court stated: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014. Finding Frye’s test not to have gained general acceptance among “physiological and psychological authorities,” his conviction was affirmed. In Daubert, the Supreme Court considered a claim that birth defects had been caused by Bendectin. Summary judgment had been granted against the plaintiffs because the trial court had ruled inadmissible the plaintiffs’ scientific evidence showing a causal connection. The evidence consisted of tests on animals and in vitro tests, but there was no direct evidence that Bendectin caused birth defects in humans. The Court took the opportunity to review Federal Rules of Evidence, Rule 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Court held that Frye had been displaced by the adoption of the Federal Rules of Evidence and suggested a number of factors a court could consider to determine the admissibility of scientific evidence under Rule 104(a)(relating to preliminary questions of admissibility) while also stating that, “we do not presume to set out a definitive checklist or test.” 509 U.S. at 593. Included in a court’s analysis should be a consideration of whether the theory or technique can be or has been tested, has been subjected to peer review or publication, has a known rate of error and standards governing the technique’s operation, and could also include a consideration of whether the theory or technique has gained general acceptance in the relevant scientific field. The Court stressed that its test was a “flexible” one, focused on the methodology of the technique or theory to allow courts to determine whether the evidence is sufficiently reliable to satisfy Rule 702. The Court noted that the evidence must still pass muster under other rules of evidence, including Rules 703, 706, and 403. Having announced a new rule in Daubert, the Supreme Court remanded the case. Daubert was followed by General Elec. Co. v. Joiner, 522 U.S. 136 (1997), holding the standard of appellate review of the trial court’s rulings on admissibility of expert testimony to be abuse of discretion. In Kumho Tire, Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court held that the Daubert analysis, requiring the trial judge to serve as the “gatekeeper” of scientific evidence and evaluate its relevance and reliability, applied to all expert testimony, clarifying that Daubert does not apply only to scientific evidence, but also applies to “technical, or other specialized knowledge” listed in Rule 702. Some jurisdictions do not follow Daubert or Frye, instead fashioning their own test to determine whether novel scientific evidence will be admitted. E.g., Harper v. State, 292 S.E.2d 389 (Ga. 1982) (“whether the procedure or technique has reached a scientific stage of verifiable certainty, or ... whether the procedure rests on the laws of nature”); State v. Fukusaku, 946 P.2d 32 (Ha.1997) (evidence must be relevant and reliable); Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525 (Iowa 1999) (evidence must be relevant and reliable); State v. Council, 515 S.E.2d 508 (S.C. 1999) (court considers “(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures”); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex.1995) (the court should consider “(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique”); State v. Crosby, 927 P.2d 638 (Utah 1996) (court determines if process is “inherently reliable,” “a determination that the scientific principles or techniques at issue have been properly applied to the facts of the particular case by sufficiently qualified experts” and whether probative value outweighs unfairly prejudicial effect). In the following cases, the courts have announced that their jurisdiction follows Daubert or its principles. State v. Coon, 974 P.2d 386 (Ak.1999); Ex parte Turner, 733 So.2d 497 (Ala. 1998) (by statute for DNA only); Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Foote, 14 S.W.3d 512 (Ark. 2000); People v. Shreck, 22 P.2d 68 (Colo. 2001); State v. Russo, 773 A.2d 965 (Conn. 2001); M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513 (Del.1999); State v. Merwin, 962 P.2d 1026 (Ida. 1998) (following an approach similar to Daubert); Steward v. State, 652 N.E.2d 490 (Ind. 1995); Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999); State v. MacDonald, 718 A.2d 195 (Me.1998) (strongly supportive of Daubert); State v. Foret, 628 So.2d 1116 (La.1993); State v. Cline, 909 P.2d 1171 (Mont. 1996); State v. Dahood, 814 A.2d 159 (N.H.2002) (horizontal gaze nystagmus (HGN) admissible under Daubert for limited purpose of providing circumstantial evidence of intoxication); State v. Alberico, 861 P.2d 192 (N.M. 1993); State v. Goode, 461 S.E.2d 631 (N.C. 1995) (state approach consistent with Daubert); State v. Nemeth, 694 P.2d 1332 (Oh. 1998); State v. O’Key, 899 P.2d 663(Or. 1995) (HGN admissible to show defendant under the influence but not a specific BAC1 level under Daubert type analysis); Commonwealth v. Senior, 744 N.E.2d 614 (Mass. 2001) (retrograde extrapolation satisfies Daubert); Schafersman v. Agland Coop., 631 N.W. 2d 862 (Neb. 2001); Taylor v. State, 889 P.2d 319 (Okla.Crim.App. 1995); DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I. 1999); State v. Schweitzer, 533 N.W.2d 156 (S.D. 1995); State v. Begley, 956 S.W.2d 471 (Tenn. 1997); State v. Lockhart, 562 S.E.2d 443 (W.Va. 2000); State v. Brooks, 643 A.2d 226, 229 (Vt. 1993) The following cases adhere to Frye. Simmons v. State, 797 So.2d 1134 (Ala.Crim.App. 2000), cert. denied, 797 So.2d 1186 (Ala.), cert. denied, 122 S.Ct. 298 (2001); State v. Lehr, 38 P.2d 1172 (Az. 2002); People v. Soto, 981 P.2d 958 (Ca. 1999); Ramirez v. State, 810 So.2d 836 (Fla. 2001); People v. Davis, 710 N.E.2d 1251 (Ill. 1999); State v. Shively, 999 P.2d 952 (Kan. 2000); People v. Lee, 537 N.W.2d 233 (Mich.App. 1995); Goldstein v. State, 664 A.2d 375 (Md. 1995); Goeb v. Tharaldson, 615 N.W.2d 800 (Minn.2000); Young v. City of Brookhaven, 693 So.2d 1355 (Miss. 1997) (HGN does not satisfy Frye but may be used for probable cause); State v. Davis, 814 S.W.2d 593 (Mo. 1991); Dow Chemical Co. v. Mahlum, 970 P.2d 98 (Nev. 1998); State v. Fortin, 745 A.2d 509 (N.J. 2000); People v. Jason, 694 N.Y.S.2d 908 (N.Y. 1999); Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994); State v. Baity, 21 P.2d 262 (Wash. 2001) (DRE “protocol meets the mandate of Frye”). Legislative approval
A number of courts have ruled that the legislature has determined admissibility under either the Frye or Daubert tests and that therefore the government does not need to introduce evidence to support that foundation. E.g., Williams v. Dist. of Columbia, 558 A.2d 344, 346 (D.C.1989) (Frye - breath testing); Armstead v. State, 673 A.2d 221 (Md. 1996) (Frye - DNA - no right to inverse Frye hearing);Regan v. State, 590 N.E.2d 640 (Ind.App. 1992) (Frye - blood alcohol testing). In State v. Vega, 465 N.E.2d 1303 (Oh.1984), the Ohio Supreme Court held that the defendant could not call an expert to testify to the general reliability of the intoxilyzer in light of the legislative approval of the device. The dissenting opinion argued that the ruling denied the defendant of his federal and state constitutional right to present a defense. The appellate court in Hawaii agreed with the dissent in Vega in State v. Lowther, 740 P.2d 1017 (Haw.App. 1987) and reversed a conviction where the defendant’s expert was precluded from testifying that the Intoxilyzer does not accurately measure blood alcohol. Expert qualifications
In State v. Lasworth, 42 P.3d 844 (N.M.App. 2001), the court noted that the state’s expert witness, Margaret Burns, Ph.D., as a behavioral psychologist, was qualified to testify about the reliability of horizontal gaze nystagmus (HGN). However, since she is not a medical doctor, she was not qualified to testify about the validity of HGN, which was also required before HGN could be admitted in evidence under Daubert. This was a problem because the test was being offered in Lasworth to show the defendant was impaired and HGN had been validated according to Dr. Burns for a BAC level only.2 The court said:
Thus, in order to lay a foundation for the admission of the arresting officer’s statement that Defendant was under the influence of alcohol or another central nervous system depressant, the State was required to establish two predicates: first, that the HGN FST is a scientifically valid means of discriminating between BACs below 0.08 percent and those at or above 0.08 percent; and, second, that a BAC at or above 0.08 percent correlates with diminishment of Defendant’s mental or physical driving skills. Dr. Burns appears to have been called to testify as to the first predicate.
Lasworth, 42 P.2d at 848.
However skilled law enforcement officials, highway safety specialists, prosecutors and criminologists may be in their fields, the record before me provides scant comfort that these communities have the expertise needed to evaluate the methods and procedures underlying human performance tests such as the SFSTs. . . . As to the conclusion of the state courts, more often than not expressed in passing and without analysis, that the SFSTs generally are accepted among psychologists like Dr. Burns, the evidence presented to me by the three psychologists called by Horn leads me, respectfully, to beg to differ.
Horn, 185 F.Supp.2d at 557.
He made specific rulings enabling the government to make limited use of the SFSTs. 1. Results of properly conducted SFSTs are admissible to show probable cause to arrest. 2. SFSTs cannot be used to establish a blood alcohol content. 3. HGN has been shown to be caused by alcohol consumption among other reasons. 4. That if the officer is properly trained and qualified to perform SFST’s he may testify about his observations only, without referring to terms like “failed the test” or “exhibited” a number of “standardized clues.” 5. If the officer testifies he performed and observed HGN, the defendant may bring out the other numerous causes of HGN through cross-examination or judicial notice. 6. The officer’s lay opinion cannot include his technical or specialized knowledge concerning the SFSTs. Horn, 185 F.Supp.2d at 132-343 HGN cases
The cases on HGN have come to basically five different conclusions: HGN is inadmissible for any purpose; HGN is admissible to prove probable cause at a pretrial hearing; HGN is admissible to show consumption or presence of alcohol; HGN is admissible to show impairment; or HGN is fully admissible, even to establish a BAC level. The following cases have ruled horizontal gaze nystagmus inadmissible before the fact finder. State v. Chastain, 960 P.2d 756 (Kan. 1998) (HGN does not satisfy Frye); State v. Witte, 836 P.2d 1110 (Kan.1992) (HGN must satisfy Frye to be admitted); Young v. City of Brookhaven, 693 So.2d 1355 (Miss. 1997) (HGN does not satisfy Frye but may be used for probable cause); State v. Doriguzzi, 760 A.2d 336 (N.J. Super.Ct. App. Div. 2000) (HGN must meet Frye to be admissible); State v. Torres, P.2d 20 (N.M.1999) (state must first satisfy Daubert and show the validity and reliability of the test before HGN may be admitted); Commonwealth v. Apollo, 603 A.2d 1023 (Pa. Super. Ct.1992) (affirmed trial court’s exclusion of HGN for failure to meet Frye); State v. Murphy, 953 S.W.2d 200 (Tenn.1997) (must satisfy Daubert to be admissible). These cases have allowed HGN in evidence. State v. Dahood, 814 A.2d 159 (N.H.2002) (HGN admissible under Daubert for limited purpose of providing circumstantial evidence of intoxication); State v. O’Key, 899 P.2d 663(Or. 1995) (HGN admissible to show defendant under the influence but not a specific BAC level under Daubert type analysis); Schultz v. State, 664 A.2d 60 (Md.App. 1994) (HGN only admissible to show presence of alcohol if officer properly qualified and test properly administered); Malone v. City of Silverhill, 575 So.2d 101 (Ala.Crim.App. 1989) (admission of HGN without laying proper predicate was harmless error, officer must be qualified to give test and HGN reliability must be shown), rev. sub. nom, Ex parte Malone, 575 So.2d 106 (Ala. 1990) (was not harmless error); Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998) (HGN admissible to show consumption of alcohol); State v. City Court of City of Mesa, 799 P.2d 855 (Ariz.1990) (may be used to show probable cause to arrest and impairment as with any other field sobriety test, may not be used to show specific BAC); Whitson v. State, 863 S.W.2d 794 (Ark.1993) (admissible to show alcohol consumption); People v. Joehnk, 42 Cal.Rptr.2d 6 (Cal.Ct.App.4th 1995) (HGN admissible as basis for officer’s opinion but not to quantify BAC or prove guilt standing alone); State v. Russo, 773 A.2d 965 (Conn.App. 2001) (HGN admissible if state satisfies Daubert); State v. Ruthardt, 680 A.2d 349 (Del.Super.Ct.1996) (if foundation laid, HGN admissible as circumstantial evidence of impairment and to corroborate test result but not to show BAC in absence of test); Bowen v. State, 745 So.2d 1108 (Fla.App. 1999) (must be a confirmatory BAC test before HGN may be admitted); Hawkins v. State, 476 S.E.2d 803 (Ga.App. 1996); State v. Ferrer, 23 P.3d 744 (Ha.App. 2001) (admissible for probable cause); State v. Garrett, 811 P.2d 488 (Idaho 1991) (HGN may be used as circumstantial evidence of intoxication); People v. Buening, 592 N.E.2d 1222 (Ill.App.Ct.1992) (HGN admissible if proper foundation laid, but not to establish specific BAC); Cooper v. State, 761 N.E.2d 900 (Ind.App. 2002) (HGN admissible to show impairment); State v. Murphy, 451 N.W.2d 154 (Iowa 1990) (HGN admissible); State v. Armstrong, 561 So.2d 883 (La.Ct.App.1990) (with proper foundation may be admitted as evidence of intoxication); State v. Taylor, 694 A.2d 907 (Me.1997) (test admissible but not to specify BAC); Commonwealth v. Sands, 675 N.E.2d 370 (Mass.1997) (expert testimony necessary to admit); People v. Berger, 551 N.W.2d 421 (Mich.Ct.App.1996) (HGN meets Frye); State v. Klawitter, 518 N.W.2d 577 (Minn.1994) (HGN meets Frye); State v. Hill, 865 S.W.2d 702(Mo.Ct.App.1993) (HGN may be used to show intoxication, specific BAC with properly trained officer); Hulse v. State, 961 P.2d 75 (Mont.1998) (HGN admissible if proper training, administration of test and scientific basis for test); State v. Baue, 607 N.W.2d 191 (Neb.2000) (admissible to show impairment but not precise BAC); People v. Quinn, 580 N.Y.S.2d 818 (N.Y.Dist.Ct. 1991), rev’d on other grounds, 607 N.Y.S.2d 534 (N.Y.Sup. 1993) (“drug recognition expert” (DRE) protocol and HGN satisfy Frye); State v. Helms, 504 S.E.2d 293 (N.C.1998) (proper foundation must be laid before may be admitted); City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D.1994) (with proper qualifications and administration of test HGN admissible as circumstantial evidence of intoxication, not to quantify BAC); State v. Bresson, 554 N.E.2d 1330 (Ohio 1990) (HGN admissible but not to quantify BAC); Yell v. State, 856 P.2d 996 (Okla.Crim.App.1993) (HGN admissible but not to quantify BAC); State v. Sullivan, 426 S.E.2d 766 (S.C. 1993) (may be used to show lack of sobriety but not to quantify BAC); Emerson v. State, 880 S.W.2d 759 (Tex. Crim.App.1994) (if technique valid and applied correctly admissible but not to show BAC); Salt Lake City v. Garcia, 912 P.2d 997 (Utah Ct. App.1996) (HGN admissible, not scientific); State v. Cissne, 865 P.2d 564 (Wash. Ct. App.1994) (if meets Frye is admissible); State v. Barker, 366 S.E.2d 642 (W.Va. 1988) (HGN admissible but not to show BAC); State v. Zivcic, 598 N.W.2d 565 (Wis.Ct.App.1999) (HGN admissible if officer properly qualified); Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo.2000) (HGN admissible at administrative hearing). DRE cases
Only a few states have reported decisions addressing challenges to so-called “drug recognition experts” (DREs). See e.g., State v. Baity, 21 P.2d 262 (Wash. 2001) (DRE “protocol meets the mandate of Frye” — expert opinion allowed as to presence or absence of drugs if officer properly qualified and tests properly administered); State v. Sampson, 6 P.3d 543 (Or.App. 2000) (modified Daubert analysis — “we hold that the procedure and results of the DRE protocol are admissible in a DUII-CS proceeding to show that a defendant was under the influence of a controlled substance . . . the state must make a foundational showing ‘that the officer who administered the test was properly qualified, the test was administered properly, and the test results were recorded accurately’”); Williams v. State, 710 So.2d 24, (Fla.App. 1998) (Frye inapplicable to portion of DRE protocol other than HGN because it is not scientific and inapplicable to HGN because it is not novel — DRE expert opinion permitted — HGN admissible to show impairment but not specific BAC); United States v. Everett, 972 F.Supp. 1313 (D.Nev. 1997) (if proper foundation is laid officer can testify as to probabilities but not as to established fact); State v. Klawitter, 518 N.W.2d 577 (Minn. 1994) (DRE satisfies Frye — opinion admissible if officer properly trained and tests properly administered, cannot refer to officer as “Expert”); People v. Quinn, 580 N.Y.S.2d 818 (N.Y.Dist.Ct. 1991) (DRE protocol and HGN satisfy Frye). The majority rule, which has been to allow either expert or lay opinion testimony under either Frye or Daubert, is now subject to challenge under United States v. Horn, 185 F.Supp.2d 530 (D.Md. 2002). Speed measurement In Izer v. State, 511 S.E.2d 625 (Ga.App. 1999), the court held laser evidence did not meet Georgia’s requirement of “scientific stage of verifiable certainty” or resting “on the laws of nature” but the legislature quickly enacted legislation allowing the evidence. Van Nort v. State, 550 S.E.2d 111 (Ga.App. 2001). See also, Goldstein v. State, 664 A.2d 375 (Md. 1995) (laser satisfies Frye). Other courts have announced foundational requirements for radar devices used to determine the speed of a vehicle. For example, the court in Fitzwater v. State, 469 A.2d 909 (Md.App. 1984) said:
Although the statute does not set forth any requirements for proving the accuracy of the radar, the Court in Great Coastal Express, Inc. supra, relying on United States v. Dreos, 156 F.Supp. 200 (D.Md.1957) and Villegas v. Brysor, 494 P.2d 61, 16 Ariz.App. 456 (1972), set forth some guidelines stating at p. 715, 369 A.2d 118, It is sufficient to show that the equipment has been properly tested and checked, that it was manned by a competent operator, that proper operative procedures were followed, and that proper records were kept. * * * [There should be proof to indicate] the instrument relied upon was in good working order and accurate at the time the recording was made. Fitzwater, 469 A.2d at 912.
Preliminary breath test PBTs, also referred to as preliminary breath tests or portable breath tests, have been held inadmissible by some courts, admissible by others and others have allowed admission only to show probable cause. They are considered extremely unreliable. Some of the cases prohibiting admission are: Harmon v. State, 809 A.2d 696 (Md.App. 2002); People v. Rose 643 N.E.2d 865 (Ill.App. 1994) (inadmissible in state’s case-in-chief - rebuttal reserved); Patrick v. State, 750 S.W.2d 391 (Ark. 1988) (only defendant can introduce PBT because they are unreliable); State v. Zell, 491 N.W.2d 196, 197 (Iowa Ct.App.1992) (“[t]he results of the preliminary screening test are inadmissible because the test is inherently unreliable and may register an inaccurate percentage of alcohol present in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all”); People v. Keskinen, 441 N.W.2d 79 (1989); Justice v. Director of Revenue, 890 S.W.2d 728, 731 (Mo.Ct.App.1995) (by statute); Commonwealth v. Stanley, 629 A.2d 940 (Pa.Super. 1993) (stating that PBT results are inadmissible); Thompson v. State Dept. of Licensing, 91 Wash.App. 887, 960 P.2d 475, 477 (1998) (holding that “the results of a portable breath test are not admissible as evidence at trial or to establish probable cause for arrest”); State v. Beaver, 512 N.W.2d 254 (Wis. 1994) (PBT not admitted). Some cases allowing the PBT include: People v. Williams, 121 Cal.Rptr.2d 854 (Ca. 2002); People v. Bury, 58 Cal.Rptr.2d 682 (Cal. App. 1996). These cases allow the results if the state either demonstrates compliance with Title 17 of the California Code of Regulations or meets the three-part foundation of “(1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator.” Cases allowing the PBT to only establish probable cause include: United States v. Iron Cloud, 171 F.3d 587 (8th Cir. 1999); State v. Anderson, 359 N.W.2d 887 (S.D. 1984) (PBT only admissible if probable cause contested); Attix v. Voshell, 579 A.2d 1125 (Del. Super.Ct. 1989) (holding that the PBT can be admitted only for probable cause and not for substantial evidence because no court has established that it is reliable); State v. Strizich, 952 P.2d 1365 (Mont. 1997) (holding that the PBT is intended only for determining probable cause); State v. Klingelhoefer, 382 N.W.2d 366 (Neb. 1986) (probable cause); City of Fargo v. Ruether, 490 N.W.2d 481 (N.D.1992) (inadmissible if defendant admits probable cause); Jones v. Town of Marion, 508 S.E.2d 921 (Va.App. 1999) (only to be used in determining probable cause); State v. Johnson, 503 N.E.2d 431 (Ind.App. 1987) Privacy Federal regulations Many medical facilities obtaining blood for alcohol screening from patients are subject to 42 Code of Federal Regulations (CFR) Ch. 1 (10-1-02 Edition) Public Health Service, HHS, Subchapter A, Part 2 Confidentiality of Alcohol and Drug Abuse Patient Records. This provision relies on the following statutory authority, 42 U.S.C. § 290dd2, the current version of which provides:
(a) Requirements Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States, shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.... (c) Use of record in criminal proceedings Except as authorized by a court order granted under subsection (b) (2) (C) of this section, no record referred to in subsection (a) of this section may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient.... (f) Penalties Any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined in accordance with Title 18.
(Emphasis supplied).
Often in serious accidents, the defendant is transported to a hospital where he or she receives treatment for injuries received in an accident caused by alcohol or drug abuse, and also receives counseling for an possible abuse problem. The blood test conducted for treatment is sought by the state, usually in complete disregard of federal law prohibiting the disclosure of this information. In United States v. Eide, 875 F2d 1429 (9th Cir. 1989), the court said:
The emergency room at the VAMC undoubtedly is a “person” which “in part” “holds itself out as providing, and provides, . . . drug abuse diagnosis, treatment, or referral for treatment.” In fact, Eide received such services there. A hospital emergency room, while obviously also performing functions unrelated to drug abuse, serves as a vital first link in drug abuse diagnosis, treatment, and referral. Indeed, it is apparent that many drug abusers are first diagnosed as having a drug abuse problem, and are first given treatment or a referral for their drug abuse, at a hospital emergency room in conjunction with a suspected drug overdose.
Eide held that emergency room records were covered by the federal prohibition and suppressed the defendant’s urinalysis result showing drug use. State privileges A number of states recognize a physician-patient privilege which precludes the state from obtaining records of medical treatment of an individual, including blood tests done in the course of medical treatment. E.g., People v. Walljasper, 422 N.E.2d 251 (Ill.App. 1981); Gozenbach v. Ruddy, 645 S.W.2d 27 (Mo. 1982); Ragsdale v. State, 432 S.W.2d 11, 13 (Ark. 1968); Kansas v. Pitchford, 697 P.2d 896 (Kan. 1985); New York v. Petro, 504 N.Y.S.2d 67 (N.Y. 1986). In some states, medical records protection acts provide greater protection than physician-patient privilege. E.g., Mosley v. State, 732 S.W.2d 861 (Ark.App. 1987). In State v. King, 535 S.E.2d 492 (Ga. 2002), the Supreme Court held that although Georgia had no statutory or common law physician-patient privilege, the Georgia state constitution contained a right of privacy flowing from “natural law” that shielded the defendant’s medical records containing a blood alcohol reading of .15 from a state issued subpoena. The court found that due process was violated by the state obtaining private medical records through a subpoena without notice to the patient. As a result the court reversed the defendant’s drunk driving conviction. The victory for patients in Georgia was short-lived however, since the Georgia Supreme Court shortly thereafter distinguished the case of a different King, holding that a search warrant for medical records containing a blood alcohol reading did satisfy due process concerns sufficiently to overcome the defendant’s right of privacy. King v. State, 2003 WL 168665 (Ga. 2003). Common law foundational requirements In some jurisdictions, the foundation for the admission of scientific evidence is established by caselaw. For example in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the Tennessee Supreme Court announced the foundation for the admission of a breath test. It said: We hold that the testing officer must be able to testify (1) that the tests were performed in accordance with the standards and operating procedure promulgated by the forensic services division of the Tennessee Bureau of Investigation, (2) that he was properly certified in accordance with those standards, (3) that the evidentiary breath testing instrument used was certified by the forensic services division, was tested regularly for accuracy and was working properly when the breath test was performed, (4) that the motorist was observed for the requisite 20 minutes prior to the test, and during this period, he did not have foreign matter in his mouth, did not consume any alcoholic beverage, smoke, or regurgitate, (5) evidence that he followed the prescribed operational procedure, (6) identify the printout record offered in evidence as the result of the test given to the person tested. See also, Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App.1983) (government must show that breath instrument was in good working order); State v. Geinzer, 406 N.W.2d 457 (Iowa Ct.App.1987) (reading of .01 during “air blank” step rather than .00 rendered test inadmissible because showing of accuracy and reliability required in addition to compliance with statute). In California, the state must prove one of two possible foundations, either compliance with Title 17 of the California Code of Regulations or the three part foundation of “(1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator.” People v. Williams, 121 Cal.Rptr.2d 854 (Ca. 2002); People v. Bury, 58 Cal.Rptr.2d 682 (Cal.App. 1996). Due process and other similar constitutional, statutory or regulatory provisions Right to counsel In many states, courts have ruled, under a number of different provisions, that a person arrested for drunk driving has a right to consult with counsel, prior to deciding whether to take or refuse a chemical test E.g., Sites v. State, 481 A.2d 192 (Md. 1984) (Fourteenth Amendment due process); State v. Juarez, 775 P.2d 1140 (Ariz. 1989) (Arizona Rules of Criminal Procedure, Rule 6.1); State v. Carmody, 442 A.2d 1292 (Vt. 1982) (by statute - 23 V.S.A. §§ 1202(c); Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D. 1987) (by statute - N.D.C.C. § 29-05-20); Kuhn v. Commissioner of Public Safety, 488 N.W.2d 838 (Minn.App. 1992) (state constitution); State v. Rodenheffer, 580 N.E.2d 864 (Ohio Mun. 1991) (by statute); State v. Garvey, 595 A.2d 267 (Vt. 1991); but see, State v. Bristor, 691 P.2d 1 (Kan. 1984) (if read Miranda warnings, defendant must be told does not apply to election to take breath test). Those cases that recognize the right to counsel hold that it is a limited right and may not interfere with the reasonable efforts of the police to obtain a sample within relevant time requirements. Sites; Village of Lexington v. Reddington, 621 N.E.2d 758 (Ohio App. 1993) (not enough time given to consult with counsel). Some cases hold that police do not have to advise suspects of the right to counsel, but that it depends upon the request of the detained person. E.g., McAvoy v. State, 551 A.2d 875 (Md. 1989); but see, State v. Duff, 394 A.2d 1145 (Vt. 1978) (advice required by statute). The right to counsel has been held to include the right to a face to face consultation between counsel and the accused, as well as a private PBT, Brosan v. Cochran, 516 A.2d 970 (Md. 1986), as well as the right to a private consultation, out of earshot of the police. State v. Holland, 711 P.2d 592 (Az. 1985); State v. Durbin, 63 P.3d 576 (Or. 2003) (right to counsel in state constitution — privacy required whenever defendant requests counsel - request for privacy implied from request for counsel). Other jurisdictions have held that there is no right to counsel before deciding whether to take or refuse a chemical test of blood or breath. E.g., State v. Taniguchi, 815 P.2d 24 (Haw. 1991) (defendant must be advised has no right to counsel if expresses confusion about right to counsel). Requesting counsel may constitute a refusal. Dikeman v. Charnes, 739 P.2d 870 (Colo.App. 1987). In those jurisdictions where the refusal to submit to a test is a separate crime, not only may there be a limitation on recognition of the right to counsel, but it may also be a crime to advise a person to refuse the test. See, e.g., 36 CFR § 4.23. Where counsel successfully argues the defendant was denied access to counsel before deciding to take or refuse the test, the court or administrative agency may suppress the test result or the refusal. Sites. Right to an independent test A number of jurisdictions have recognized a right, under relevant federal or state constitutional or statutory provisions, for a drunk driving defendant to obtain an independent test in order to contest the state’s alcohol test evidence. In re Koehne, 356 P.2d 179 (Cal. 1960); Commonwealth v. Alano, 448 N.E.2d 1122 (Mass.1983); State v. O’Donnell, 225 Ga.App. 502, 484 S.E.2d 313 (1997); State v. Snipes, 478 S.W.2d 299 (Mo.1972); Montano v. Superior Court In and For Pima County, 719 P.2d 271 (Ariz. 1986); State v. Dake, 529 N.W.2d 46 (Neb.1995); Schroeder v. State, 772 P.2d 1278 (Nev.1989); Snyder v. State, 930 P.2d 1274 (Alaska 1996) (due process right to independent test even if refuses state test - sanction for interference is to presume the test would have been favorable); but see, State v. Larivee, 56 N.W.2d 226 (Minn. 2003) (defendant only has right to independent test if submits to state test). The West Virginia Supreme Court has held that the state must provide for an independent test if the defendant cannot afford one, although the costs may be assessed on a guilty finding. Moczek v. Bechtold, 363 S.E.2d 238 (W.Va. 1987). In Arizona, the right to an independent test is not satisfied by the opportunity to test the sample drawn for the state. State v. Olcan, 61 P.3d 475, (Ariz.App. 2003) (charges dismissed for denial of opportunity to obtain independent sample). Failure to advise A number of the jurisdictions that recognize the right to an independent breath test also require the officer to advise the defendant of the option. Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982) (state must either preserve sample of breath or advise defendant of right to an independent test under due process clause of state constitution, Const.Art. 1, § 7); State v. McCard, 326 S.E.2d 856 (Ga. App. 1985); Mitchell v. City of North Little Rock, 692 S.W.2d 624 (Ark. 1985) (not advised of full range of tests available); but see, State v. Bloomer, 618 N.W.2d 550 (Iowa 2002) (advice not required). In the jurisdictions where the advice is required, the failure to comply with the advice requirement can lead to the suppression of the state’s test evidence or dismissal. State v. Minkoff, 42 P.3d 223 (Mont.2002) (dismissal - overruling State v. Strand, 951 P.2d 552 (Mont. 1997), which held suppression of state’s test was proper remedy for failure to advise). At least one state requires advice of the right to an independent test only where the police utilize the implied consent procedure and obtain a state test. Grayson v. State, 783 S.W.2d 75 (Ark.App. 1990) (sanction for failure to advise is suppression of the state test); but see, Montano v. Superior Court, 719 P.2d 271 (Ariz. 1986) (advice required where state does not utilize implied consent procedure - sanction is dismissal). Denial of independent test In State v. Minkoff, 42 P.3d 223 (Mont.2002), the Montana Supreme Court held that where the officer discouraged the defendant from choosing an independent blood test by telling him the test would be higher than the state’s test, the proper sanction was dismissal. The court overruled its prior decision in State v. Strand, 951 P.2d 552 (Mont. 1997), where it had held that where there is a state test the proper sanction for failure to advise of the right to an independent test is suppression. In State v. Livesay, 941 S.W.2d 63 (Tenn.Cr.App. 1996) (denial after a request) the court ruled that dismissal was the appropriate remedy for preventing the defendant from obtaining an independent test. See also, People v. Underwood, 396 N.W.2d 443 (Mich. App. 1986) (officer persuaded defendant not to obtain independent test - conviction reversed and case dismissed); State v. McNichols, 884 P.2d 620 (Wash. App. 1994) (sanction for unreasonably delaying independent test was dismissal). In State v. Braunecker, 566 S.E.2d 409 (Ga.App.2002), the court held the state’s breath test should have been suppressed where the defendant was denied an opportunity to obtain an independent test. See also, State v. George, 754 P.2d 460 (Kan.App. 1988) (refusal to take defendant to hospital required suppression of state’s test); State v. Pipkin, 364 S.E.2d 464 (S.C. 1988) (suppression of both state and independent tests where the officer seized the independent test sample and told the defendant to get another one); Lau v. State 896 P.2d 825 (Ak.App.1995) (discouraging defendant from taking independent test required suppression of state’s test). Denial of bail, unreasonable lengthy detention, failure of prompt presentment A number of cases have recognized that where the defendant has a right to an independent test, that an unreasonable period of detention, which prevents the defendant from being able to obtain a relevant test, may violate due process. Commonwealth v. Hampe, 646 N.E.2d 387 (Mass. 1995); Commonwealth v. King, 706 N.E.2d 685, 688 (Mass. 1999). The sanction is dismissal unless there is overwhelming evidence of the defendant’s intoxication. See also, State v. Greeley, 808 A.2d 108 (N.J.Super. 2002) (unreasonable release policy, which had effect of denying defendant independent test required suppression of state’s test). Incorrect or misleading advice of administrative sanctions or evidentiary effect of submitting to or refusing test There are many cases holding that failure to give proper implied consent warnings, or giving inaccurate and misleading information in addition to or instead of the required implied consent warnings violates due process and requires the suppression of the test results obtained thereby. Kitchens v. State, 574 S.E.2d 451 (Ga.App. 2002); State v. Wilson, 987 P.2d 268 (Haw.1999); Cooper v. Dept. of Licensing, 810 P.2d 1385 (Wash. 1991); Smith v. State of Nebraska, Department of Motor Vehicles, 535 N.W.2d 694 (Neb. 1995); Graves v. Commonwealth, 535 A.2d 707 (Pa. 1988); Beem v. State, 805 P.2d 495 (Ida.App.1991); Buchanan v. Registrar, Ohio Bureau of Motor Vehicles, 619 N.E.2d 523 (Oh. 1993); Bennett v. Director of Revenue, 889 S.W.2d 166 (Mo.App.1994); State v. Sells, 798 S.W.2d 865 (Tex.App.1990); State v. Kozel, 505 A.2d 1221 (Vt. 1986); State v. Spencer, 750 P.2d 147 (Or. 1988); State v. Stade, 683 A.2d 164 (Me. 1996). In many jurisdictions, failure to comply with the requirements of the implied consent statute can result in exclusion of the test result in evidence. E.g., State v. Loscomb, 435 A.2d 764 (Md. 1981); State v. Coleman, 455 S.E.2d 604 (Ga.App. 1995); State v. Stade, 683 A.2d 164 (Me. 1996) (suppression of test result at trial affirmed where officer failed to read implied consent advisory and gave false and misleading advice). Some courts have found that administering rights under Miranda v. Arizona, 384 U.S. 436 (1966), can cause confusion which can impair the validity of the implied consent advisement by misleading the defendant to believe there is a right to counsel or to silence. The officer is required to explain that the right to counsel and to remain silent does not apply to the requirement that the defendant submit to a test. E.g., Transportation v. O’Connell, 555 A.2d 873 (Pa. 1989); Dept. of Highways v. Beckey, 192 N.W.2d 441 (Minn. 1971); State v. Severino, 537 P.2d 1187 (Haw. 1975); Graham v. State, 633 P.2d 211 (1981). Courts have considered claims that a non-English speaking driver is entitled to receive the implied consent advisory in a language other than English. E.g., State v. Tosar, 180 Ga.App. 885, 350 S.E.2d 811 (1986) (Spanish-speaking defendant); Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830 (Minn.App.1984) (Japanese-speaking plaintiff). These cases have held that since a person who drives in the state gives implied consent to take a test, that a person who does not understand English should be treated the same as an unconscious person, where express consent is not a prerequisite to the test. These decisions are difficult to reconcile with the cases cited above, as well as with equal protection principles. E.g., Sandoval v. Hagan, 197 F.3d 484 (C.A. 11 Ala. 1999), rev’d on other grounds, Alexander v. Sandoval, 532 U.S. 275 (2001). Fifth Amendment The Fifth Amendment, and state constitutional provisions prohibiting compelled self-incrimination, have in many cases been tried and rejected as a basis for excluding physical scientific evidence. Schmerber v. California, 384 U.S. 757 (1966). However, to the extent the physical evidence is considered testimonial, the Fifth Amendment should be considered as a basis for challenging the evidence. Additionally, the physical evidence may have been obtained as the fruit of a Fifth Amendment violation. See, Wong Sun v. United States, 371 U.S. 471 (1963). The Fifth Amendment prohibits compelled custodial interrogation. A court must determine whether the defendant was in “custody” and whether the responses of the defendant were “testimonial.” In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme Court ruled that “custody” for the purposes of the Fifth Amendment, occurs when “a reasonable person would no longer feel free to leave,” the officer’s presence. Although, in Berkemer, a drunk driving case, this occurred after field sobriety tests at the moment of the official arrest, the moment when the arrest occurs will not always be when “custody” begins. In Pennsylvania v. Muniz, 496 U.S. 582 (1990) the Supreme Court ruled that the response to the question on a videotape, “Do you know what the date was of your sixth birthday?” was testimonial, because it involved the thought process of the defendant. Additionally, in Pennsylvania v. Bruder, 488 U.S. 9 (1988), the Supreme Court reserved the question of whether the recitation of the alphabet is testimonial. State constitutional provisions may not be interpreted so narrowly. For example, in State v. Fish, 893 P.2d 1023 (Or. 1993), the Oregon Supreme Court held that refusal to perform standardized field sobriety tests violated the state constitutional prohibition against compelled self incrimination. See also, South Dakota v. Neville, 459 U.S. 553 (1983) (refusal to submit to breath test does not violate the Fifth Amendment). In Allred v. State, 622 So.2d 984 (Fla. 1993), the Florida Supreme Court held that the recitation of the alphabet was testimonial for purposes of the Florida Constitution prohibition against compelled self incrimination. Right to a court-appointed expert In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court recognized a due process right to appointment of an expert to help contest sanity. The following cases have recognized a right to a court funded expert in a drunk driving case where the defendant cannot afford one. People v. Jacobsen, 532 N.W.2d 838 (Mich.1995) (by rule - insufficient showing under the facts of the case); State v. Ryan, 334 A.2d 402 (N.J. Super 1975) (right to counsel); City of Mount Vernon v. Cochran , 855 P.2d 1180 (Wash.App. 1993) (Sixth Amendment, rule); Fisher v. City of Eupora, 587 So.2d 878 (Miss.1991) (insufficient proffer); but see, Elmore v. State, 968 S.W.2d 462 (Tex.App.1998) (refusing to apply Ake in a drunk driving case). Notes 1. BAC has been used to mean “blood alcohol concentration,” “breath alcohol concentration,” or “body alcohol concentration,” sometimes interchangeably, depending upon the jurisdiction and type of test. 2. The court said, “As Dr. Burns has observed, ‘the objective of the test is to discriminate between drivers above and below the statutory BAC limit, not to measure driving impairment.’ 1998 [California, J. Stuster and M. Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent,] Final Report[, submitted to U.S. Dept. of Transportation, NHTSA (1998)], supra, at 28 (emphasis added).” Lasworth, 42 P.2d at 848. 3. Horn’s conclusion with respect to walk and turn and one leg stand was similar to the holding in State v. Meador, 674 So.2d 826 (Fla.App.), rev. denied, 686 So.2d 580 (Fla.1996). With respect to HGN, Meador’s analysis under Frye concluded that on the record presented, the unfairly prejudicial effect of admitting HGN outweighed its probative value Editor’s note: Part Two will appear in the September/October issue.