Transcript DRE - State`s Attorneys Appellate Prosecutor

DRE CASE PREPARATION
& DIRECT EXAMINATION
Objectives
1. IL DRE case law and legal issues
2. Discovery preparation
3. Trial preparation and direct examination tips
DRE Case Law and Legal Issues
• No specific DRE opinion in the IL Supreme Court nor any of the
IL Appellate Courts
• No IL Statutes or any IL Administrative Code Regulations
• You might be asking what do we have then?
DRE Case Law and Legal Issues
Cases in IL that indirectly support admissibility of DRE testimony:
• People v. Jacquith, 472 N.E.2d 107 (Ill. App. Ct. 1st Dist. 1984)
• People v. Shelton, 708 N.E.2d 815 (Ill. App. Ct. 5th Dist. 1999)
• People v. Workman, 726 N.E.2d 759 (Ill. App. Ct. 2d Dist. 2000)
• People v. Foltz, 934 N.E.2d 719 (Ill. App. Ct. 5th Dist. 2010)
These cases stand for the principle that an officer can testify about
whether a person is under the influence of drug(s) so long as they
have the relevant skills, experience, or training to render such an
opinion
We should be good right? DRE’s have the most rigorous training in
law enforcement. Why would there be an issue of the admissibility
of DRE testimony?
Some issues prosecutors across the country are facing is whether
DRE testimony is scientific or not subject to a Frye hearing, and
whether a DRE can be called an “expert” in court
DRE Case Law and Legal Issues
Should DRE testimony be subject to a Frye hearing?
• IL Rules of Evidence 702
• Is the DRE testimony scientific?
• If no, it is not subject to a Frye hearing
• If yes, is it new and novel or is it generally accepted in the
scientific community?
• Not subject to Frye if generally accepted
• Subject to Frye if new and novel
DRE Case Law and Legal Issues
Scientific or Not Scientific?
• State v. Klawitter, 518 N.W.2d 577 (Minn. 1994)
• United States v. Everett, 972 F.Supp. 1313 (D. Nev. 1997)
• State v. Layman, 953 P.2d 782 (Utah App. Ct. 1998)
• Williams v. State, 710 So.2d 24 (Fla. App. Ct. 3rd Dist. 1998)
• State v. Aleman, 194 P.3d 110 (N.M. App. Ct. 2008)
These cases stand for the principle that a DRE’s testimony is
admissible from the specialized training they received under Rules
of Evidence (IL Rules of Evidence 702)
Is it generally accepted in the scientific community?
• State v. Sampson, 6 P.3d 543 (Or. App. Ct. 2000)
• State v. Baity, 991 P.2d 1151 (Wash. 2000)
• United States v. Everett, 972 F.Supp. 1313 (D. Nev. 1997)
DRE Case Law and Legal Issues
Validation Studies
• E.V. Adler and M. Burns, Drug Recognition Expert (DRE)
Validation Study, Final Report to Governor’s Office of Highway
Safety, State of Arizona (1994)
• Richard P. Comptom, Field Evaluation of the Los Angeles Police
Department Drug Detection Procedure, U.S. D.O.T. H.S. 807 102
(1986)
• D.F. Preusser, et. al., Evaluation of the Impact of the Drug
Evaluation and Classification Program on Enforcement and
Adjudication, National Highway Traffic Safety Administration,
U.S. D.O.T. H.S. 808 058 (1992)
DRE Case Law and Legal Issues
Drug Recognition Expert or Drug Recognition Officer?
• State v. Klawitter, 518 N.W.2d 577 (Minn. 1994)
• Williams v. State, 710 So.2d 24 (Fla. App. Ct. 3rd Dist. 1998)
Is a incomplete 12-step DRE Protocol Admissible?
• State v. Aleman, 194 P.3d 110 (N.M. App. Ct. 2008)
• State v. Rambo, 279 P.3d 361 (Or. App. Ct. 2012)
• State v. Wilson, 337 P.3d 948 (Or. App. Ct. 2014)
Discovery Preparation
• Need to request the DRE supplemental report that contains the
DRE’s 12-step evaluation
• Need to request the DRE’s curriculum vitae, the DRE’s
certification, the DRE’s training manual, and any materials used
by the DRE to reach their opinion
• Request to see if there were any videos or pictures taken by the
DRE of the subject
• Send Expert letter to Defense counsel pursuant to local rules
enclosed with your DRE’s curriculum vitae, DRE certification,
as well as any reports, correspondence, and written materials
pertaining to their expert opinion
Trial Preparation
• Consider filing a motion in limine to admit the DRE as an expert
and admit their testimony before trial
• Educate your Judge about DRE’s and the DRE Protocol
• Eliminate any surprises at trial
• Meet with your DRE at least once before trial to go over the
DRE’s curriculum vitae, all written materials prepared by the
DRE, and to go over questions you prepared for the DRE
• Make sure you also prepare with any other witnesses before trial:
the arresting officer, any civilian witnesses, phlebotomist, and
the ISP Forensic Scientist who tested the blood/urine for drugs
• Make sure you have all evidence for trial
• Make sure blood/urine was picked up from the ISP lab for trial
DRE Direct Examination Tips
Examples of DRE predicate questions
• http://www.ndaa.org/pdf/drug_evaluation_classifi
cation_dec.pdf
• http://www.tdcaa.com/sites/default/files/page/15
%20SFST%20&%20DRE%20Experts.pdf
DRE Direct Examination Tips
• Background, Training and Experience
• Police Academy
• SFST Training
• Breathalyzer Operator Training (get into later during the 12-steps)
• ARIDE Training
• DRE Course/Certification
• Narcotics Training
• Specialized Conferences
• Published articles or any classes taught by DRE
• Testimony about how many total DUI arrests and DUID arrests
DRE Direct Examination Tips
• Testimony about what the DECP is and its purpose
• Testimony about what a DRE is and what the DRE certification
entails
• Testimony about the DRE school and the application process to
become a DRE
• Testimony about the DRE field school, rolling logs, continuing
certification process
DRE Direct Examination Tips
• Testimony about the 7 drug categories and the matrix
• Testimony about the Drug Influence Evaluations and the number
of evaluations made by the DRE
• Testimony about the DRE 12-step Protocol going through each of
the 12-steps and then going through the DRE’s 12-step
evaluation of the Defendant
Questions?
Email: [email protected]
Phone #: (815)334-4858