Tuesday, August 23, 2011

DWI Law - Missouri Drug Recognition Protocol Opinion Challenged

Modern day courts, often stocked with pro-State judges and former prosecutors, are loath to take on challenges about police procedures. In Missouri v. Savick, --- S.W.3d ----, 2011 WL 3628889 (Mo.App. S.D.) the defendant was convicted of follwing a court ruling allowing an officer to testify that he believed Defendant was under the influence of a central nervous system stimulant, based upon a drug recognition evaluation. On appeal, the court reviewed the DRE protocol:

"A drug recognition evaluation is designed to allow an officer to detect what category of controlled substances may have rendered an individual impaired or intoxicated and is based upon observations of certain characteristics which are known to be exhibited by an individual who is under the influence of a specific category of controlled substances. The evaluation looks for indicators of seven drug categories—entral nervous system depressants, central nervous system stimulants, anesthetic dissociatives, narcotic analgesics, inhalants, cannabis, and hallucinogens—and consists of twelve standardized steps: (1) administer a breath alcohol test; (2) interview the arresting officer; (3) conduct a preliminary examination of the individual to rule out alcohol or medical impairments; (4) administer an HGN test; (5) administer the Romberg balance, walk-and-turn, one-leg stand, and finger-to-nose tests; (6) take the individual's vital signs, including pulse, blood pressure, and temperature; (7) examine the individual's eyes with a penlight in a dark room; (8) examine the inside of the individual's nose and mouth; (9) examine the individual's muscle tone; (10) interview the individual; (11) form an opinion regarding whether the individual is under the influence of a particular category of controlled substances; and (12) request a urine sample for toxicological analysis."

The appellate court avoided the ultimate issue in the case, namely the DRE protocol's validity and reliabiliuty, by finding that ruling on the issue was unnecessary. Here's how they did it:

• First. they re-stated the exact appellate issue written by the defendant:

"The trial court erred and abused its discretion when it permitted Detective Gooden to testify over [Defendant's] foundation objection that it was Gooden's opinion, based on a drug recognition evaluation, that [Defendant] was under the influence of a central nervous system stimulant at the time he was driving, in violation of [Defendant's] rights to due process of law and a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. The State failed to demonstrate that the ability to determine intoxication from a specific drug category from a drug recognition evaluation without a toxicology examination was generally accepted in the scientific community, a necessary foundation for expert testimony."

• Second. The appeals court interpreted the issue stated as having only preserved the propriety of the officer's opinion, rather than the entire DRE protocol itself:

"Defendant only challenges Gooden's opinion testimony that Defendant was under the influence of a central nervous system stimulant, or step 11 of the drug recognition evaluation. Our review is limited to those issues raised in an appellant's point relied on and subsequently expounded upon in an appellant's argument. See Rule 84.04(e) as made applicable by Rule 30.06(c); State v. Morrow, 541 S.W.2d 738, 740 (Mo.App.1976). Consequently, the remainder of Gooden's testimony, including his observations during all of the other steps of the drug recognition evaluation, may be considered by this Court as unchallenged and properly before the jury. On that basis, it is impossible to conceive that a reasonable probability exists that but for Gooden's statement that he believed Defendant to have been under the influence of a central nervous system stimulant, the jury would have acquitted Defendant of driving while intoxicated."

• Third. The court, then stating that all of the other steps in the DRE had gone unchallenged, found that:

"Assuming, without deciding, that the trial court abused its discretion in admitting Gooden's opinion testimony, Defendant cannot succeed in his argument because he has not and cannot show the requisite outcome-determinative prejudice resulting from such admission. In order for error to be prejudicial and thus require reversal, it must be shown that, but for the admission of the challenged evidence, there is a reasonable probability that the result would have been different."

Today's case is thus a perfect example as to how many appellate issues are avoided by the courts simply through artful dodging of the issues at hand. Counsel are cautioned to make appeals airtight to avoid such results.

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