Criminal Practice – Drug Recognition Expert Testimony – Qualification of Expert Testimony

The trial court’s admission of DRE testimony was error but did not constitute prejudicial error. The trial court did not err in determining the admissibility of Defendant’s driving record as evidence of malice to prove second-degree murder pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b).

Defendant received a fair trial, free from prejudicial error.

Defendant appealed from the judgment entered following a jury verdict finding him guilty of second-degree murder and felony death by motor vehicle. On appeal, Defendant contended the trial court erred in allowing the Drug-Recognition Expert (DRE) to testify without determining whether the expert had satisfied the reliability provisions of N.C. Gen. Stat. § 8C-1, Rule 702(a). Second, Defendant contended the trial court erred by allowing the state to introduce Defendant’s driving record without first conducting a similarity analysis under N.C. Gen. Stat. § 8C-1, Rule 404(b).

Defendant’s primary argument against the DRE testimony was the trial court’s alleged failure to satisfy the reliability provisions of N.C. Gen. Stat. § 8C-1, Rule 702(a). Defendant contended even when expert testimony is admissible based on N.C. Gen. Stat. § 8C-1, Rule 702(a1), the trial court is still required to qualify the expert based on the requirements of N.C. Gen. Stat. § 8C-1, Rule 702(a), notwithstanding the modifications made pursuant to 2017 N.C. Sess. Laws ch. 212, Part V, § 5.3, eff. June 28, 2017. This appears to be a case of first impression for this Court.

Our legislature has amended N.C. Gen. Stat. § 8C-1, Rule 702 multiple times over the last two decades, and the statute was most recently updated in 2017. The State argued the 2017 inclusion of “notwithstanding any other provisions of law,” entirely eradicates the necessity for expert witnesses to meet the requirements of N.C. Gen. Stat. § 8C-1, Rule 702(a). Accordingly, the State contended since Deputy Stringer possessed a current certification as a DRE, he was free to testify regardless of whether his testimony was based on fact or actually complied with his training as a DRE. We disagreed.

The contested language, “notwithstanding any other provisions of law,” when applied using plain language and basic grammar, would appear to allow testimony from a DRE “solely on the issue of impairment” without regard to all other rules of law, including not only the rules of reliability under 702(a), but also all other rules of evidence such as relevancy. This would be an absurd result and is inconsistent with the summary of the bill, which referred to the “technical correction” as “remov[ing] the preliminary requirements that the witness be qualified,” and does not comport with the pertinent case law which has consistently held DRE testimony is “determined to be reliable and based on sufficient facts and data.” Once categorized as “new scientific methods” admissible only “if the method was sufficiently reliable,” DRE and HGN testimony now are considered routine and regularly offered.

After the 2011 amendment, our Court expanded on that ruling stating, “it is clear that the General Assembly has indicated its desire that Drug Recognition Evidence . . . be admitted, and that this type of evidence has already been determined to be reliable and based on sufficient facts and data.” Our case law makes clear that our Courts and the General Assembly have recognized that DRE and HGN testing are based on “sufficient facts or data” and have become sufficiently reliable, eliminating the need for continued review of the basic principles and methods under 702(a)(1) and (2). The trial court allowed Deputy Stringer to express his expert opinion nearly two years after the incident and without having performed an actual DRE evaluation. Instead, Deputy Stinger based his opinion only on evidence and testimony presented at trial and a review of Defendant’s records. This was error and the trial court should have sustained Defendant’s objection to Deputy Stinger’s testimony as to his opinion on Defendant’s impairments pursuant to N.C. Gen. Stat. § 8C-1, Rule 702(a)(3).

While the trial court erred in allowing Deputy Stringer’s testimony, Defendant bears the burden to prove prejudice. The State presented overwhelming evidence of Defendant’s impairment at trial, separate and apart from Sergeant Stringer’s DRE testimony. As Defendant is unable to prove any reasonable possibility that the outcome of the case would have been different absent the DRE testimony, we held that despite the error of allowing the DRE testimony, it was nonprejudicial error.

No prejudicial error.

State of North Carolina v. Richard Allen Moore (Lawyers’ Weekly No. 011-183-25, 19 pp.) (April Wood, J.) Appealed from Forsyth County Superior Court (Martin B. McGee, J.) Attorney General Jeff Jackson, by Assistant Attorney General Steven C. Wilson, Jr., for the State. Drew Nelson for the Defendant. North Carolina Court of Appeals