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Drug recognition evidence reliable


Drug recognition evidence has been pre-determined to be reliable and based on sufficient data and facts, and can be admitted without further foundation, the state Court of Appeals unanimously held April 17.

Judges Wanda Bryant, Chris Dillon, and John Tyson agreed that the trial court did not abuse its discretion by admitting, pursuant to Rule 702 of the North Carolina Rules of Evidence, the expert testimony of an Asheville police officer who determined that a central nervous system depressant caused the impairment of a woman convicted of driving while impaired.

The woman, Stacie Fincher, had argued that the state did not lay a sufficient foundation under Rule 702(a) to establish the reliability of the officer’s methodology underlying his drug recognition examination and conclusion. She also argued that the testimony of officer Scott Fry failed to show that the 12-step DRE protocol was a reliable method of determining impairment.

The court disagreed, citing the General Assembly’s desire to see such evidence admitted.

A bad day

According to court records, Fincher took her prescribed alprazolam (Xanax) around 2 a.m. on Feb. 10, 2015 to help her fall asleep. Later that morning, she took Abilify, Wellbutrin, and Lamictal, medicines she had been prescribed for bipolar disorder.

After helping her children get ready for school, Fincher, who had undergone ankle surgery, drove herself to a follow-up appointment with her surgeon. She was still fitted with a large boot and needed crutches to walk. During the appointment, the surgeon manipulated her ankle to the point that Fincher cried in pain. Fincher drove herself to a pharmacy to have her prescription filled, then to a local fast-food restaurant. While in the drive-thru line, Fincher’s foot slipped off the brake and her car rear-ended the vehicle in front of her.

Two police officers who responded noticed that Fincher’s eyes were red and glassy, and that her speech was slurred. Fincher told police that she took several prescription drugs and that she had taken the alprazolam several hours earlier. One officer, certified to administer field sobriety tests, gave Fincher a Horizontal Gaze Nystagmus test and determined that she was impaired.

She was arrested and charged with DWI. At the jail, Fincher consented to a blood draw. Fry, a certified drug recognition expert, assisted the arresting officers by performing a 12-step evaluation to determine whether Fincher was impaired, and if so, what type of drugs were in her system.

He determined that she was impaired by a central nervous system depressant.

What caused it?

During Fincher’s trial in superior court, Fry testified that Fincher’s blood contained measurable amounts of alprazolam and two of her bipolar medications. The judge told the jury that alprazolam is an impairing substance.

Fincher unsuccessfully moved to dismiss, and was found guilty of DWI.

On appeal, she argued that the trial court erred in denying her motion to dismiss where prosecutors submitted the case to the jury on a theory that she was under the influence of alprazolam, but where no evidence showed that the amount of alprazolam in her blood was sufficient to cause appreciable impairment.

In his brief, Fincher’s attorney, Sean Vitrano of Wake Forest, argued that the testimony of the state’s chemical analyst was not helpful in determining whether the amount of alprazolam in his client’s blood was potentially impairing. The analyst opined as to the amount of each drug, Vitrano wrote, but did not explain to the jury what effects those concentrations, individually or in combination, might have on a person’s mental or physical faculties.

“She was not even permitted to opine as to whether alprazolam was a potentially impairing substance,” Vitrano wrote.

He also argued that Fry never opined that Fincher was under the influence of alprazolam, but central nervous system depressants, which also include the Wellbutrin and Lamictal that were detected in her blood.

“Fry did not testify that the alprazolam in Ms. Fincher’s system caused her impairment,” Vitrano wrote. “Yet that was precisely the State’s burden under the jury instructions it requested.”

According to Vitrano, the state specifically requested during the charge conference that alprazolam be included in the instruction as the impairing substance. He argued that since there were multiple potential causes of impairment, the evidence raised “barely a suspicion” that Fincher’s 2 a.m. Xanax caused her appreciable impairment. Therefore, her conviction must be vacated, he averred.

The court disagreed, finding that the testimony of the state’s witnesses at trial was sufficient to prove the elements of DWI.

Trust us — it’s reliable

Fincher also argued that the trial court abused its discretion by admitting Fry’s testimony that Fincher was under the influence of a central nervous system where the state did not lay a sufficient foundation under Rule 792(a) to establish the reliability of the drug recognition examination.

“We argued that the trial court didn’t perform its gatekeeping function by considering whether the State satisfied 702(a)(1) – (3),” Vitrano wrote in an email. “We also didn’t think Officer Fry’s testimony passed the reliability test, as the data was mixed and Fry didn’t talk about the overall reliability of the DRE in establishing impairment.”

But according to the court, the state Supreme Court held last year in State v. Godwin that the General Assembly had “clearly signaled” that the results of an HGN test are “sufficiently reliable” to be admitted. Further, the court found, its own 2017 decision in State v. Younts held that an officer trained to administer an HGN test may properly testify as to the results of the test without the trial court’s determination that the testing is scientifically reliable.

Here, the court found that the same rules apply to DRE evidence.

“Lastly, pursuant to the text of subsection (a1)(2) of Rule 702, it is clear that the General Assembly has indicated its desire that Drug Recognition Evidence — like the evidence given by DRE Officer Fry — be admitted, and that this type of evidence has already been determined to be reliable and based on sufficient facts and data,” Coggins wrote.


The nine-page decision is State v. Fincher (Lawyers Weekly No. 011-136-18 ). The full text of the opinion is available online at nclawyersweekly.com


Follow Heath Hamacher on Twitter @NCLWHamacher


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