DUI Expert Dismissed

7/29/2019 DUI Expert Dismissed

1/37

0 3 / 0 5 / 2 0 1 2 1 3 : 3 02 1 0 P . 0 0 2 / 0 3IN THE CIRCUIT COURT FOR CARROLL COUNTY

STATE OF MARYLANDv.

CONSOLIDATED CASES:Charles David BrightfulK-10-40259Harvey Alexander CarrK-10-40331Ryan Thomas MahonK-09-39370Valerie Ann MullikinK-09-39636Ronald Dale TeeterK-10-40300Jennifer Adeline FlanaganK-10-40167Christopher James MooreK-09-39569Darrell Patrick Peyok, Jr.K-10-40686Ryan Lucas Mull.inexK-10-40575'onnie Denise BriscoK-10-40783Perry Gilbert MayK-10-40717Matthew Bridger FarleyK-11-41045Jessica Leigh C larkK-11-41336Rosemary Lynn ButtonK-11-41468Richard John HolmesK-11-41475Jack Edward Manger


2/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 02 1 0 P . 0 0 3 / 0 3K-11-41490Michael Wayne HuseyK-11741506Troy Adam DirectorK-11-41595Timothy Charles RobertsonK-11-41610Daniel Paul CannaVoK-11-41627Jonathan Tyler CarrollK-11-41323Ryan Lee AndersonK-12-42335Amy Michelle GiaraffaK-11-42127Stephanie Anne BaumesK-11-42203Bonnie Denise BriscoK-11-41519Richard Clarence PolingK-11-42185Mark GertzK-12.742060

Defendants

MEMORANDUM OPINION AND ORDERThis matter came before the Court September

20, 21, 22, 23, 27, 28, 29, 30, 2010 and February 14and 15, 2011 on the, issue of whether the drugrecognition expert. protocol and drug recognitionexpert testimony are admissible in the State ofMaryland for prosecutions of persons suspected of


3/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 02 1 0 P . 0 0 4 / 0 3driving under the influence of drugs or controlleddangerous substances. After hearing testimony and thearguments of counsel the Court held the matter subcuria.

Following these hearings Defendants filedtheir Motion To Exclude The Drug Recognition ExpertProtocol and Drug Recognition Expert Opinion.

I. BackgroundThe Drug Recognition and Classification Program

("DEC Program") was developed in 1979 by two sergeantswith the Los Angeles Police Department. In 1986 theNational Highway Traffic Safety Administration("NHTSA") published the NHTSA DRUG EVALUATIONANDCLASSIFICATION TRAINING PROGRAM, STUDENT MANUAL ("DECManual") and in 1987 developed a national standardizedcurriculuM. in 1990 the International Association ofChiefs of Police ("IACP") became the nationalcertifying agency for the drug recognition examiners.

As part of the DECProgram police officers11 with no formal, scientific training enroll in a 72-hour


4/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 02 1 0 P . 0 0 5 / 0 3S7 course designed to teach them about thecharacteristics and effects of seven differentcategories of drugs on all major systems in the humanbody.' These police officers are taught to administera twelvestep drug evaluation and classification

! protocol to subjects suspected of impairment. 2 The

7 Drug Categories1. Central Nervous System Depressants2. Inhalants3. Dissociative Anesthetics4_ Cannabis5. Central Nervous System Stimulants6 . Hallucinogens7. Narcotic Analgesics

2 12 Steps of the Drug Evaluation Process1, Breath Alcohol Test - A sample of breath is taken from the test subject to determine the

toneent*ationof al-Gohod; if any, in the test subject.2. Interview of Arresting Officer - The DRE consults with the investigator(s) to determinethe circumstances leading up to the apprehension of the test subject.3. Preliminary Examination - Initial examination of the subject. Some questions are askedin relation to the subject's medical/physical limitations.4. Eye Examination - Eyes are examined for pupils being equal, the ability of the eyes totrack a stimulus equally, to monitor the smoothness of that tracking, to look forHorizontal Gaze Nystagmus, as well as Vertical Gaze Nystagmus:5. Divided Attention Tests - One Leg Stand is done with both legs. Walk and Turn test isdone. Modified Romberg Balance test. And Finger to Nose test is done.6. Examination of Vital Signs - Blood pressure, pulse and body temperature is taken.7. Dark Room Examinations - Examination of the pupil sizes in near total darkness, underdirect light, and in normal room light. Examination of the oral and nasal cavities aredone at the same time.8. Examination of Muscle Tone - Flexion and Extension of the muscles are tested, to see ifthere is flaccidity, or rigidity of the muscles.


5/37

0 3 / 0 5 / 2 0 1 2 1 3 : 3 12 1 0 P . 0 0 6 / 0 3r o m : test takes approximately 45 minutes to and hour. Atthe conclusion of the twelve-step analysis the officermust decide (a) whether the subject has been drivingwhile under the influence of a drug or drugs and, ofso, (b) what category or combination of categories ofdrugs is impairing the subject.

To become a certified Drug RecognitionExaminer ("DRE") a police officer must take a72-hour course and obtain a score of at least 80% onthe final exam.

Although the DRE program is utilized in 45states, the presence of the DRE program does notequate to widespread judicial acceptance by appellatecourts nor acceptance in the medical community.

9. Examination of Injection Sites - Examination of common injection sites to determine ifthe subject is using injected substances.

10. Suspects Statements / Other Observations - Soliciting information from the test subjectwhich will corroborate signs and symptoms that the evaluator has observed.11. Opinion of the Evaluator - The DRE makes a determination of the class or classes of

drugs that a subject is under the influence based on a matrix of symptomolo gy that hasbeen developed during studies of subjects under the influence of known classes ofdrugs.

12. The Toxicological Examination - Blood, saliva or urine is obtained by demand, which isanalyzed to determine what class of substances are present that corroborates the DRE'sopinion.


6/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 12 1 0 P . 0 0 7 / 0 3II. Expert testimonyThe State presented six expert witnesses:

Dr. Karl Citek, Ms. Michelle Spirk, Mr. WilliamTower III, Officer William Morrison, Lt. ThomasWoodward and Dr. Zenon Zuk.

Dr. Karl Citek testified that he is anoptometrist who is also a primary care physician. Hetestified that he did not attend medical school. (Tr.9/20/10 at 38) He testified that he is a member of theadjunct faculty at the Institute of Police Technologyand Management and teaches a course called MedicalFoundations of Visual System Testing, a three-day

I course on the medical and scientific background behindthe DRE protocol. .(Id. at 26) Dr. Citek testified thathe has given presentations and lectures to DREs forwhich he has received some compensation and hasobserved DRE certification training in Oregon, Floridaand Louisiana on at least 100 occasions. (Id. at 35,48) Dr. Citek testified that the DRE courses arecommonly taught by other police officers. (9/20/2010at 17 9, 203) He testified that the DRE is "making adiagnosis of whether the person is impaired by a drugor medical condition.' CTr. 9 - !2..0/ l0 at 154) - . Dr.Citek testified that he is not a member of the IACP orthe DRE technical advisory board. (Id. 183) Dr. Citektestified that there is no set number of major ar -general indicators that a DRE need8 to find to reachan opinion. of drug impairment, although in his opiniononly one indicator would not be enough to find drugimpairment. He further testified that DREs are notinstructed by the DEC Program that only one indicatorwould be insufficient.Tr. at 208, 219) Dr. Citekdescribed the DRE protocol as 'a diagnostic test" thatallows [DREs) "to differentiate not only betweenimpaired and unimpaired people but, when impairment is


7/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 12 1 0 P . 0 0 8 / 0 3found, whether it is a medical or drug impairment."(Tr. 9/20/10 at 220) Dr. Citek testified that thereare medical disorders that will actually 'cause smoothpursuit and distinct and sustained nystagmus atmaximum deviation and when distinguishing betweenmedical and drug impairment the DRE must understandhow many clues are necessary to find HGN. (Tr.9/21/10 at 25) Dr. Citek testified that these medicaldisorders are not explained in the DEC Manual and thisis "another shortfall of this manual,and the training"and he has recommended in the past to make changes tothe manual.Id. at 25) Dr. Citek testified thatthere is "nothing in the medical or scientificcommunity that validates that HGN makes you unable todrive safely." (Id. at 37)

Ms. Michelle Spirk testified that she has aMasters Degree in Bio-Chemistry and has been employedwith the Arizona Department of Public Safety fortwenty years. She testified that she supervisestoxicologists who perform blood, alcohol, urine, andblood drug screening. (Tr. 9/21/10 at 79, 119) Ms.Spirk testified that she was been heavily involved inthe DRE program since she began work in the ArizonaState Crime Laboratory. She attended DRE schoolduring her first year of employment. She testifiedthat she sits on the Arizona DRE Steering Committeeand attends monthIy-nmetings. (Id. at 82- -833 - Shetestified that she teaches for the Arizona DREprogram. She testified that she does not have adegree in toxicology, forensic toxicology, or any areaof pharmacolo gy. (Id. 92-3) The State o ffered her asan expert in the areas of pharmacology, clinicalresearch, forensic toxicology,and DRE protocol.heCourt qualified Ms. Spirk to testify in the field oftoxicology only. (Id. at 131) Ms. Spirk was allowedto testify "as to the possible effects of a drug, butnot the effect on driving." (Id. 145)


8/37

F r o m :3/05/2012 13:32210 P.009/038Mr. William Tower III testified that he is alaw enforcement liaison for the National HighwayTraffic Safety Administration and InternationalAssociation of Chiefs of Police (IACP). In 1987 heand two other specialists developed the DREcurriculum.Tr. 2/ 14/11 at 12-15)Mr. Tower testified that the DRE was developedby police officers from the Los Angeles PoliceDepartment. In 1979 the Drug Recognition programreceived the official recognition o f the I,APD.r.Tower testified that in 1986 the National HighwayTraffic Safety Administration ("NHTSA") becameinvolved in order to make a more standardized manualand a certification process for use nationally. (Tr..2/14/11 at 16-17, 22) Mr. Tower testified that NHTSAtook parts of two programs existing at the time, theLAPD and the California Highway Patrol, and by 1987developed a national standardized curriculum.(Id. at25-26, 42) In 1990 the International Association ofChiefs of Police ("IACP") assumed control of the DECProgram. (Id. at 53) Mr. Tower testified that theprogram is utilized in 45 states.

Mr. Tower testified that a police officerwho enters the DEC Program to become a DRE is notrequired to have any prior medical training. (Tr. at

-18-2) An officer must take a standardized three-daycourse on field sobriety tests followed by a two-dayDRE test. If the officer passes with 80 or-above, hewill begin the seven-day DRE school where he willlearn the 12-step process and must take a 100-questiontest at the end and pass with a score of at least 80.(Id. at 27-28)

Mr. Tower testified that the DEC Program seeksto train police officers to conduct a "systematic andstandardized" examination of a suspect in order todetermine:


9/37

F r o m : 0 3 / 0 5 / 2 0 1 2 1 3 : 3 22 1 0 P . 0 1 0 / 0 31,Whether the subject is impaired; and, if so,2.Whether the impairment is caused by drugs ora medical condition; and, if drugs,

3.The category or combination of categories ofdrugs that are the likely cause of thesubject's impairment.

(Id. at 30-32)Mr. Tower further testified that in addition to

the wide discretion in what weight to give theindicators on the matrix, the DRE is not even requiredto complete the 12-step protocol to reach an opinionas those steps are merely "preferred." (Tr_ 2/14/11at 95-96). Mr. Tower testified that even if noat all are found in the subject's blood, the DRE is"not going to change [their] opinion after you get theblood." (Id. at 103-04) Mr. Tower stated that thereason there would be no change in the officer'sopinion is that "you are limited on what the lab cantest for." (Id. at 104) (Emphasis supplied.)

Officer William Morrison testified that he isa member of the Montgomery County Police Department.He is the coordinator for the Montgomery County PoliceDepartment's Chemical Test Unit. Officer Morrisontestified that he maintains intoximeters and overseesbrood testing and the County's_ DRE program. He isalso responsible for training related to underagedrinking, DWI and preliminary breath. testing. OfficerMorrison has been a certified DRE since 1991. OfficerMorrison testified that he teaches DRE in-servicetraining and has performed over 1,000 DRE evaluations.(Tr. 2/14/11 at 110)

He testified that as soon'as a DRE iscertified they are considered fully qualified torender an opinion, including ruling out medicalcauses, for any perceived impairment by the officer.(Id. at 80-91) He testified that the DRE isspecifically making a medical diagnosis during the


10/37

F r o m : 0 3 / 0 5 / 2 0 1 2 1 3 : 3 22 1 0 P . 0 1 1 / 0 3examination by ruling out medical conditions duringthe examination. (Id. at 207)He testified that when the matrix says

1; "indicated" it means only that it indicates thatseveral things could be presentit could indicate thepresence of drugs, impairment by drugs, or couldsimply be impairment by a medical condition. (Tr.2/15/11 at 25) Officer Morrison who testified that hehas been involved with the program for 20 years and along-time instructor testified that he had no idea whysome indicators are called "Major" and others arecalled "General." (Id. at 25-26) Officer Morrisontestified that he does not need to have any set numberof indicators in order to find someone impairedbecause a DRE locks at the 'totality of everything"and ultimately it comes down to their medicaljudgment. (Id. at 59, 65)

Lt. Thomas Woodward testified that he is thecurrent commander of the Maryland State Police Barrackin Hagerstown, Maryland. He has served, in lawenforcement for thirty years and before his assignmentin Hagerstown he was commander of the chemical testfor alcohol unit. (Tr. 2/15/11 at 87) He testifiedthat he has been State coordinator for the MarylandDRE program for the last ten years and is responsiblefor ensuring MarylandDREs are trained and certifladaccording to IACP guidelines.(Id. at 88)

Dr. Zenon Zuk testified that he has practicedmedicine for 30 years and the majority of his practiceinvolves workers' compensation cases. He has testifiedon behalf of the DRE protocol fifteen times. (Tr.9/22 / 10 at 176) Dr. Zuk testified that he reviewedthe DRE Manual before testifying today and prior tothat he had not read the DRE Manual for fifteen years.


11/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 32 1 0 P . 0 1 2 / 0 3He testified that he performs work for theWestern Branch of the United States ImmigrationService and administered deportation protocol to beused during in-flight deportations. (Tr. 9/22/10 at171-172) The purpose of the protocol was to insurethat the Justice Department was not fined for

1 emergency landings or aborted landings by medicalmishaps in flight.Id. 171-172) He testified thathe sedated deportees with drugs to assure theircooperation and that one of the drugs he used was aPCP dissociative anesthetic call Doperidol_ (Tr.9/23/10 at 36) He testified that in 17 years he did atotal of 182 sedations and that "in probably half thecases it would be considered against their will."(Id. at 36) He testified that "the effect on theindividuals that I administered it so that it wouldthey would still perceive an awareness of an eventthat they were anxious about but they demonstratedless concern about it. So, it was - part of thereason why a dissociative anesthetic made so muchsense--it really cuts off their ability to respondemotionally to what they know cognitively." (Id. 36)

He testified that he became interested in theDRE program because he wanted to learn the DRE skillset with its use of the Tharp's Equation. (Tr.9/23/10 at 49) He testified that the Tharp's Equationis tsed by a DRE to quantify a suspect's. blood alcoholcontent and also determine if a suspect is impaired bya drug. He testified that the Tharp's Equation is"blood alcohol content equals 50 minus angle ofonset."Id. at 50)He testified that during his medical training he neversaw or was taught that one could predict the presenceof other drugs inside a human being based on thediscrepancy between an angle of onset of nystagmus andthe breath alcohol level.Tr. 9/2 3/ 10 at 49, 84)


12/37

0 3 / 0 5 / 2 0 1 2 1 3 : 3 32 1 0 P . 0 1 3 / 0 3r o m : Defendants' called three experts: Dr.Francis Gengo, Dr. Neal Adams, and Dr. JeffreyJanofsky.

Dr. Francis Gengo testified that he is aclinical pharmacologist with a post doctoralfellowship in pharmacokinetics and pharmacodynamics.Dr. Gengo has held various academic appointmehts atSUNY Buffalo including Associate Professor ofPharmacy, Associate Professor of Neurology in theSchool of Medicine and a courtesy appointment in theDepartment of Neurosurgery where he lectures toneurosurgery residents about the use of medications inpatients who have acute neurologic problems. Hecurrently holds two positions at the Dent NeurologicInstitute: Drector of Clinical Research for the DentNeurologic Group and Chief Science Officer for theDent Neuroscience Research Center. Dr. Gengo teachesmedical and pharmacology students as part of aclinical rotation from SUNYBuffalo. Dr. Gengotestified that he is responsible for medicationtherapy management and conducts comprehensive reviewsof patient records to determne specific efficacy andtoxicity of patient medications and eliminateredundant medications. (Tr. 9/28/10 13-20)

Dr. Gengo has authored sixty-five peerreviewed and published articles and three of thosearticles are specifically in the area of drug impaireddriving. He has contributed to text books in the fieldof clinical pharmacology, e.g., Neurology In ClinicalPractice, Clinical Pharmacokinetics, andDrug EffectsOn Human. Function. (Id. at 26-27)

Dr. Gengo testified that the DRE makes largelysubjective observations. Dr. Gengo stressed that "theDRE technician...is not in a po sition to appreciateother diseases much less diagnose their presence" and


13/37

0 3 / 0 5 / 2 0 1 2 1 3 : 3 32 1 0 P . 0 1 4 / 0 3r o m : would have to exercise medical and pharmacologicI judgment to do so.Tr. 9/28/10 at 86) Dr. Gengotestified that he has not seen "any data todemonstrate that [DREs] can discern medical diseaseinduced problems from drug induced impairment" and itis his opinion based on his training in pharmacologyand clinical research that they cannot do this." (Id.at 87, 89) Dr. Gengo testified that the informationcollected by the DRE is simply not sufficient torender a medical diagnosis. (Id. at 90)

Dr. Gengo testified that while the DREs may beusing well-established principles such as bloodpressure, pulse, and eye examinations "those tools arebeing used by. [DRE1 technicians in a novel andunreliable way." (Tr. 9/29/10 at 90) He furthertestified that there is a difference betweenevaluating alcohO1 and drugs and the effect a specificdrug has on an individual would have many morevariables than one generally sees with alcohol. Dr.Gengo testified that a person suffering fromwithdrawal from methadone would be suffering fromprofuse sweating and would be distracted, agitated,irritable, and their blood pressure would be elevated.That person could appear to be under the influence ofa drug when in fact there is not enough of the drug intheir system. A DRE would have to distinguish somehowbetween signs and symptoms exhibited by someone. whoactually had no drug in their blood. (Tr. 9/28/10 at62-63)

Dr. Gengo testified that the drugs referencedin the matrix are misclassified and that some of thedrugs have a completely different effect on the bodythan what is predicted in the matrix. (Tr. 9/28110 at67) He testified that the classification system isfar too broad and that even if the classification islimited to anti-depressants there are many differenttypes that affect the central nervous systemdifferently. (Tr. 9/28/10 at 64) He went on to say


14/37

that "the data has spoken for itself that [the DREprotocol] cannot reliably discern impairment from non-impairment and cannot reliably identify the medication

H allegedly causing the impairment." (Id. at 91) Dr.Gengo testified that the matrix lists duration ofeffects for certain drugs and that the informationcontained is all but meaningless because of the

! I grouping.Tr. 9/28/10 at 145) He testified that theseven categories are so vague and they contain such adiverse group of drug classes that the-duration ofeffects contain little or no useful information. (Tr,9/2 8/10 at 146)r. Neal Adams testified that he is an1. ophthalmologist and was trained at Johns HopkinsUniversity's Wilmer Eye Institute. Following hisresidency, Dr. Adams received a medical -degree fromJohns Hopkins University. He testified that he islicensed to practice ophthalmology in three statesincluding Maryland. (Tr. 9/29/10 at 8-12) He testifiedthat he was appointed Division Chief of VisualPhysiology and Director of the Retinal Eye Instituteat Wilmer Eye Institute while simultaneously holdingthe position of assistant professor of ophthalmology.He testified that he was designated a "MonumaryScholar," the school's highest teaching award. Hereceived advanced training at the National EyeInstitutes and thereafter held key clinical researchpositions utilizing National Institutes of Healthgrants. Dr. Adams accepted an appointment as Chair ofthe Ophthalmology Department at Texas Tech UniversityMedical School. Dr. Adams has participated in multipleclinical trials involving the effect ofpharmaceuticals on vision and other issues. (Id. at18-20)

Dr. Adams testified that the "Tharp's Equationis a gross distortion of what is in the medicalliterature. Other than that, I don't find any

F r o m : 0 3 / 0 5 / 2 0 1 2 1 3 : 3 42 1 0 P . 0 1 5 / 0 3


15/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 42 1 0 P . 0 1 6 / 0 3validity in the field of medicine or in the field of1 ophthalmology to this equation." (Tr. 9/30/10 at 23-.26) Dr. Adams testified that he doesn't "agree withthe DRE protocol in the way it is being used." (Id.theat 83) He noted that the matrix "doesn't tell usrelative weights of what is more important and what toevaluate in one manner versus a different manner. We

Medical judgment is using items that may bein a matrix and placing our own experience,our own understanding of the medicalliterature, placing the knowledge that wehave gained into that matrix, understandingthe relative weights of different items inthat matrix and coming out with a judgment,So that even if we were using this matrix inits totality without anything else, there isan element of judgment that we as physicianswould incorporate to assist us. And that isnot present; that is, it is a very importantComponent of the matrix that is not presentin this matrix. And that is what I wastrying to get at is how we as physiciansinterpret these.

(Id. a t 37)Dr. Adams testified that whether it is a

doctor or "someone who has this specific expertise,"the examiner must consider 11 questions beforediagnosing nystagmus:

1) Is there nystagmus or instability presentin the primary position of gaze? If so,is it voluntary or involuntary?

2) What is the wave form of a nystagmus,is it pendular or jerk?

are loo king at almost a robotic matrix..." (Id. at 36)Dr. Adams gave his reasons for criticizing the way theDRE is taught to use the matrix:


16/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 42 1 0 P . 0 1 7 1 0 33) What is the frequency of the nystagmus?4) What is the direction and trajectory ofthe quick phase of nystagmus?5) What is the effect of a center gaze onNystagmus? Is it gaze evoked?6) Is a nystagmus conjugate or disconjugate?Is it disconjugate, is it disassociatedmeaning mainly or only in one eye? Or isit disjunctive? Equal and oppose in thetwo eyes?7) Is the nystagmus induced or influencedby maneuver such as head tilting, changesin head posture, convergence, covering ofone eye, removal of visual fixation_closing of both eyes or hyperventilations?8) Is the nystagmus periodic?9) Is the nystagmus associated with anyocular or gaze palsy?10) Is the nystagmus associated with any otherinvoluntary Movements, for example,involuntary movements of the head, eyelids,pallet or ear drum?

11) Is the nystagmus symptomatic and, inparticular, is it causing ocillopsia?

(Tr. 9/ 29/ 10 at 27-29)Dr. Adams testified that in the Shinar Study

(Defense Exhibit 4) DREs found HGN in categories wherea drug could not even cause HGN and in his expertopinion that demonstrates "that you really need twothings to interpret nystagmus. You need a properlyperformed test and you need to understand nystagmusand be able to ask these other eleven questions to beable to determine where that nystagmus came from."(Tr. 9/ 29/ 10 at 57-58) He further testified that noneof the questions that must be asked in order toproperly diagnose nystagmus, however, are asked by theDRE. (Id. at 61) He testified that there are manymedical conditions that can cause HGN including the


17/37

0 3 / 0 5 / 2 0 1 2 1 3 : 3 52 1 0 P . 0 1 8 / 0 3r o m : flu, measles, eye strain, glaucoma and heredity, aswell as substances such as caffeine and aspirin and it1 is very difficult even for physicians to distinguishbetween medical conditions and alcohol or drugs. (Tr.

1 at 62-64)Dr. Jeffrey Janofsky testified that he is an

associate professor of psychiatry at Johns HopkinsUniversity School of Medicine. He is also an educatorat The University of Maryland and the MarylandJudiciary as part of the ASTAR program. He testifiedthat he teaches a clinical psychiatry program thatinvolves medical students, nursing students and socialwork students. The program administers health care topatients who are ill mentally and physically and areeither currently using drugs or have used drugs in thepast. (Tr. 9/23/10 183-186) Dr. Janofsky was appointeda Clinical Professor ,of Psychiatry at the Universityof Maryland. He is co-director for the PretrialMental Health Screening Program for the DistrictCourt. He supervises University of Maryland medicalstudents, residents and fellows who are rotatingthrough forensic psychiatry, teaching them how to dovarious kinds of evaluations. He has authored twenty-four peer reviewed scientific journal articles thathave appeared in the Journal of Academy of Psychiatryand the Law, The Journal of the American Academy ofPsychiatry and the Law, as well as the Journal a t ' t h e .American. Psychiatric Association. (Id. at 171-174)

He testified that peer reviewed and publishedliterature must be performed before a technique likethe DRE would be accepted among the medical andscientific communities. He testified that when he was.asked to review the DRE program in 1992 he found that"there was actually not a single study regarding theDRE published ineer review scientific literature."He testified that if they're going to perform a testthat purportedly predicts an impairment by a specificdrug, which he believes no reasonable clinical1


18/37

From: 0 3 / 0 5 / 2 0 1 2 1 3 : 3 52 1 0 P . 0 1 9 / 0 3Ii i practitioner would ever do, you would want a couple ofpeer reviewed studies that say you can do itconsidering it's about criminal sanctions." (Emphasisf supplied.) (Tr. 9/23/10 at 200-01)

Dr. Janofsky testified that the DRE 12-stepprotocol and matrix is not a diagnostic test or astandardized protocol because it requires clinicalmedical judgment.Tr. 9/23/10 at 216-18)Dr. Janofsky further testified:Folks that don't have such [medical]training, for example, laboratory technicians

or aids can be trained to administer a protocol aslong as it's done in exactly the same way everysingle time and the results can be clearlydiscerned from each stage.So you would never ask someone who isacting as a technician to use theirjudgment to decide which DRE factors on thematrix are most important or, even moreridiculously frankly, to rule out amedical condition. They can't do it.They don't have the training orexperience to do it.So, when you design a protocol for a non-professional, it's very important thatit be standardized in a way that can bedone the same way over and over again that'sreliable, meaning that when multiplepeople test the same subject they getexactly the same result and that it'svalid. That it repeatedly actuallymeasures what it purports to measure.All of the studies that I've reviewedshowed first of all there is no reliabledata at all and showed that the studies


19/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 62 1 0 P . 0 2 0 / 0 3are not valid when tested appropriately.( I d . )

Dr. Janofsky testified that the matrix is notsomething accepted in scientific and medicalcommunities. He replied when asked whether he knewanyone in the medical, psychiatric, scientific, orclinical research fields who accepted the matrix asuseful:

I have got to tell you, your Honor, DRE issomething that's not foremost in the mind,of those of us who take care of substanceabusers, clinically or forensically. Peopleare aware o f it. But its -o one Iknow of, no physician I know of would evenconsider using this matrix or the - evenpieces of it in determining either whethersomeone was impaired on drugs or even moreridiculously to tell which specific drugcategory. It's ridiculousI can't emphasizethat enough.

Id. at 223.Dr. Janofsky testified that there is a major

difference between alcohol and drug interactions inthe body. He further testified that the DEC Manualimproperly equates the medical definition ofimpairment with impairment to drive. He testifiedthat the DEC Manual does not address the concept thatcertain indicaLors may only 'show the "presence o f thedrug and . not intoxicating levels causing behavioralimpairment." (Tr. 9/27/10 at 96-97). Dr, Janofskytestified that while there are studies linking alcoholto driving impairment, no studies exist regarding thedrugs the DRE lists in its seven categories. Dr.Janofsky also testified that the drugs identified inthe seven drug categories are incorrectly lumped


20/37

F r a n i : 03/05/2012 13:36210 P.021/03[H together, i.e., the CNS depressant class whichk includes barbiturates, Benadryl, variousbenzodiazepines and antidepressant medications that nof l physician would group together because they have

P I extraordinarily different neurophysiologic actions.(Tr. 9/27/10 at 57.) He testified that there areh whole classes of drugs listed under CNS depressantsthat would have the opposite effect on the body thanI what is listed for that drug category in the matrix.(Id. at 58) He testified that this misinformationcontained in the DEC Manual leads to unreliable andincorrect DRE opinions and demonstrates how difficultit is for someone with no medical background to makesuch a medical diagnosis. (Id. at 58) He testifiedthat some drugs the DEC Manual lists as a CNSDepressant do not cause nystagmus even though thematrix says they do which in his opinion is "a majorproblem." (Id. at 90-91) He testified that this typeof problem exists with all the types of drugs in thematrix. (Id. at 58-59) He further testified thatthere is no research to show that HGN impairs theability of someone to drive and it is not used in themedical field as an indicator to show drug impairment.(Id. at 50-51)

Dr. Janofsky testified that vital signs axe notsomething the medical community uses to show drugimpairment, and he knows ,o-f no o ne in the medicalfield that does use vital signs as an indicator. (Id.at 51)

Dr. Janofsky testified that in his opinion theentire "totality of the circumstances" approach theDRE uses in reaching an opinion is "absolutely" a newand novel application that is not accepted in themedical community. (Id. at 70) Dr. Janofsky testifiedestify to a reasonabledegree of a police officer's certainty that based on-this matrix the person is intoxicated, the Court will


21/37

03/05/2012 13:36210 P.022/03be receiving inaccurate and false evidence and will beconvicting the wrong people." (Id. at 86)III. Discussion

The issue before the Court is whether the DrugRecognition Protocol and drug recognition experttestimony is admssible in the State of Maryland forprosecution of persons suspected of driving under theinfluence of drugs or controlled dangerous substances.

The State must prove by a preponderance of theevidence that the DRE program is admissible underFrye-Reed by offering testimony and exhibits andpersuasive authority from other jurisdictions to showthat the protocol is not new or novel and the relevantscientific community agrees that the DEC program'smethodology produces accurate results as there is noMaryland appellate decision on this issue.

The defense alleges the protocol is newandnovel and the science it is based on is not generallyaccepted within the scientific community.

From:


22/37

F r o m : 0 3 / 0 5 / 2 0 1 2 1 3 : 3 62 1 0 P . 0 2 3 / 0 3The drug recognition protocol, whetheranalyzed under the Frye-Reed standard as a new ornovel scientific technique or under Md. R. 5-702 asexpert witness testimony based on specializedknowledge, is inadmissible for the following reasons:

1. The Frye-Reed StandardFrye v, United States, 293 F. 1013 (D.C.

Cir. 1923) sets forth the admissibility standardgo verning expert testimony as to no vel, scientifictheories. The Court refused to admit expert testimonyregarding the systolic blood pressure deception testoffered to prove defendant's truthfulness and heldthat in order to be admssible the scientificprinciple or discovery must have "gained generalacceptance in the particular field in which itbelongs." Id. at 1013-14. The Court of Appeals ofMaryland adopted the Frye standard in Reed v. State,283 Md. 374 (1978) when the Court addressed theadmissibility of expert testimony interpretingvoiceprint spectrograms that compared the defendant's


23/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 72 1 0 P . 0 2 4 / 0 3 8voice to telephone calls made by an alleged rapist.Id. at 375-76. The Court held the testimony to beinadmissible as the application of novel scienifictechniques must be reliable and general acceptancewithin the relevant scientific community demonstratesthat reliability. The Court found that voiceprintspectrograms were not generally accepted within therelevant scientific community and excluded theevidence. Id. at 399.

Although no Maryland Court has addressedwhether the DRE Protocol is a "scientific" testsubject to a Frye-Reed challenge, a number of statecourts have held that the Frve test is not needed. inDRE situations at all since the testimony beingoffered is not based on new or novel scientificprinciples. In State v. Kiawitter, 518 N.W.2d 577(Minn. 1994), the Minnesota. SUpreme Court allowed aDRE. to testify about his observations and opinion asto whether a suspect was under the influence of drugs.The Court concluded that the DRE protocol was not


24/37

F r o m :

t l

0 3 / 0 5 / 2 0 1 2 1 3 : 3 72 1 0 P . 0 2 5 / 0 3subject to the Frye test because it "is not itself ascientific technique but rather a list of the things aprudent, trained and experienced officer shouldconsider before formulating or expressing an opinionwhether the subject is under the influence of somecontrolled substance." 3 Likewise, in Williams v. State,710 So.2d 24 (Fla. Dist. Ct. App. 1998), the FloridaCourt of Appeals held that most of the DRE testimonywas not scientific, and thus a Frye hearing wasunnecessary. The Court said, "Objective observationsbased on observable signs and conditions are notclassified as 'scientific' and thus constituteadmissible testimony [without a Frye hearing]." 4

tah v. Layman, 953 P. 2d 782 (Utah.App. 1998), the Court permitted a DRE to testify as tohis opinion of intoxication under the rationale thatit was not scientific evidence, but rather "anexpert's personal observations and opinions based onhis or her education, training, and experience."3 Although the Cour t held that the DEC P rogr am w as not a scientific technique, it did rule that comp onents of theprog ram w ere scientific in nature and as such subject to a Frye challenge.4 The Williams Court concluded that nystagm us and lack of converge nce tests were scientific in nature but we renot "new or novel" in Flor ida and therefore not subject to a Frye challenge.

24


25/37

F r o m : 0 3 / 0 5 / 2 0 1 2 1 3 : 3 72 1 0 P . 0 2 6 / 0 3t The purpose of the Frye test is to ensure thatthe evidence presented will be reliable. In failingto apply the test, the Klawitter, Williams and Laymancourts failed to ensure that the DRE protocol is

1 reliable.1 1n State v_ Sampson, 6 P.3d 543 (Or.. Ct. App.20Q0), the Oregon Court of Appeals first addressed the

issue of whether the DRE testimony was scientificevidence and, after concluding that it was, applied amodified Daubert test consisting of seven steps andfound the testimony to be admissible.

The Sampson Court concluded that "the relevantscientific community consists of physicians,toxicologists, and vision experts, each of whosefields have studied the protocol extensively." (Id. at224)

The Court failed to name any organizationwithin the scientific community that endorses the DREprotocol and rested its conclusion upon the testimonyof one of the State's witnesses who stated that "the


26/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 72 1 0 P . 0 2 7 / 0 3proto col is accepted...by those peo ple who understandwhat the program is are in a position to evaluate it"and ignored the defendant's two witnesses, a medicaldoctor who specializes in toxicology and a medicaldoctor who specializes in treating addiction. Both ofthose witnesses testified that the scientific

J I community had not accepted the protocol. (Id. at 225-228)

All three of Defendants' three experts, Dr.Janofsky, Dr. Adams, and Dr. Gengo, testified that theDRE protocol and matrix are not generally accepted inthe fields of medicine including specificallypharmacology, neurology, ophthalmology and psychiatry.

In Oregon v. Arran, 194 Or. App. 463 (2004),the Court noted that while it previously ruled the 12-step DRE protocol is "valid scientific evidence" ithad cautioned that without the corroborating evidenceof the urinalysis called for in the twelfth step, theDRE protocol cannot be considered complete." Id. at247. The Court ruled that "an incompletely


27/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 82 1 0 P . 0 2 8 / 0 3 8administered DRE protocol is not, itself, admissibleas scientific evidence." Id. at 249.This ruling clarifies the Sampson opinion in

that the Court reveals that its previous admission ofthe DRE opinion was entirely based on the assumptionthat the introduction of sufficient toxicologicalconfirmation would accompany any testimony regardingthe officer's observations.

In State v. Baity, 991 P.2d 1151 (Wash. 2000) ,the Supreme Court of Washington analyzed the DREevaluation under the Frye test holding that the DREevaluation taken as a whole presented an issue ofnovel scientific evidence and met the generalacceptance standard. The Court found that the evidencedoes have a scientific aspect which "tends to cast ascientific aura about the DRE'.s testimony requiringits assessment under Frye."he Court defined therelevant scientific community as the National HighwayTraffic Safety Administration (NHTSA), theInternational Association of Chiefs of Police (IACP),


28/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 82 1 0 P . 0 2 9 / 0 3 8the American Bar Association, and the AmericanOptometric Association had generally accepted the DREevaluation. (Id. at 126) The Court held that the DREevidence was admissible scientific evidence andproperly qualified DREs may testify as experts.

However, the Court erred in defining therelevant scientific community. NHTSA and the IACP arelong-time proponents of the DRE program and have avested interest in its acceptance and use. "Generalscientific recognition may not be established withoutthe testimony of diSinterested and experts whoselivelihood is not intimately connected with theprogram." People v. Barbara, 225 N.W. 171, 180 (Mich.1977). Although the members of the AmericanOptometric Association are eye specialists and wouldunderstand certain steps in the evaluation, they arenot physicians.

In Schultz v. State, 106 Md. App. 145(1995), the Horizontal Gaze Nystagmus ("HGN") testwas scrutinized under Frye/Reed although this test


29/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 82 1 0 P . 0 3 0 / 0 3 8which is given as an indicator of alcohol abusei had been admitted many times in DWI cases. The Court

in deciding it would apply Frye/Reed to the test notedthat "[i]n determining whether a scientific techniqueis 'newi_long-standing use by police officers seemsless significant a factor than repeated use, study,testing, and confirmation by scientists or trainedtechnicians" and made a finding that HGN passed

'Frye/Reed for determining the presence of alcohol.Id. 162. In Blackwell v. State, 408 Md. 677 (2009),the Court held that HGN is a scientific test acceptedin Maryland for determining alcohol use. However,police officers cannot use HGN. to provide a specificblood alcoho l content. See, Wilson v. State, 124 Md.App. 543 (1999) .

The DRE protocol includes field sobriety testssuch as HGN, One-eg Stand, and Walk and Turn, but noMaryland court has permitted those tests to be usedfor proving drug impairment. The DRE protocol usesscientific procedures and techniques and uses that


30/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 82 1 0 P . 0 3 1 / 0 3t l data to determine the cause of the physiologicalsymptoms observed. These procedures and techniquesinclude, inter alias blood pressure, pupil reactivityto light, pupil dilation and constriction, horizontaland vertical nystagmus, pulse rate, body temperature,and muscle tone.

Dr..Adams testified that in the Shinar Study() Defense Exhibit 4) DREs found HGN in categories wherea drug could not even cause HGN and in his expertopinion that demonstrates that you "need a properlyperformed test and you need to understand nystagmusand ask these other eleven queStions 5 to be able todetermine where that nystagmus came from." (Tr.9/ 29/ 10 at 57-58)

Dr. Janofsky testified that vital signs arenot something the Medical community uses to show drugimpairment and he knows of no one in the medical fieldthat does use vital signs as an indicator. (9/27/10at 51) He further testified that "it would be

5 See eleven questions the examiner m ust consider before diagnosing nystagmus at p, 15 of this M emorandumOpinion and Order.

3 0


31/37

F r o m : 03/05/2012 13:39210 P.032/03malpractice for a physician to rely on clinical dataalone...you cannot make a diagnosis o f impairment orintoxication based on clinical data aloneyou musthave confirmatory testing." (Tr. 9/23/10 at 227)

The National Academies of Science in 2009published its findings on various aspects of forensicscience in Strengthening Forensic Science in theUnited States: A Path Forward, National ResearchCouncil of the National Academies, 2009 (hereafter"NAS Report"). The NAS report found that "there is anotable dearth of peer-reviewed, published studiesestablishing the scientific basis and validity of manyforensic methods. (Id. at 8) The NAS reportcontained the following recommendation:

The degree of science in a forensicscience method may have an importantbearing on the reliability of forensicevidence in criminal cases. There aretwo very important questions that shouldunderlie the law's admission of andreliance upon forensic evidence incriminal trials: (1) the extent towhich a particular forensic disciplineis founded on a reliable scientificmethodology that gives it the capacityto accurately analyze evidence and


32/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 92 1 0 P . 0 3 3 / 0 3 832

report findings, and (2) the extentto which practitioners in a particularforensic discipline rely on humaninterpretation that could be tainted byerror, the threat of bias, or theabsence of sound operational proceduresand robust performance standards. Thesequestions are significant_ The goal oflawenforcement actions is to identifythose who have committed crimes and toprevent the crimnal justice systemfromerroneously convicting the innocent. Soit matters a great deal whether an expertis sufficiently reliabe to merit a factfinder's reliance on the truth that itpurports to support.

Id. at 87(Emphasis supplied).Dr. Janofsky testified that peer reviewed and

published literature must be performed before atechnique like the DRE would be accepted among themedical and scientific communities. He testified thatthe Heishmar Study I, HeishMan Study 2, the ShinarStudy and the Schectman Study represent the extent ofthe peer reviewed and published literature that existson the subject of the DRE protocol. He testified thatthese studies did contain the necessary informationfor specificity and sensitivity ratios and wereConducted in a double-blind fashion. He further


33/37

0 3 / 0 5 / 2 0 1 2 1 3 : 3 92 1 0 P . 0 3 4 / 0 3r o m : testified that the Heishman, Shinar and Schectmanstudies conclusively show that the DRE, when tested

1 and looked at appropriately, is not an accuratepredictor of the presence of drugs and the fourstudies conclusively show that a police officer'spredictions are either no better than chance or may beslightly better than chance or worse than chance.(Tr. 9/23/10 at 212) Dr. Janofsky notedhe could find no scientific literature whichcorrelates nystagmus, pupil size, reaction to light,lack of convergence, pulse rate, blood pressure, orbody temperature (all separate components of the DRE)with driving impairment while intoxicated on drugs.(Dr. Janofsky Rep ort, p. 7)

Dr. Citek acknowledged that confirmation isa form of tunnel vision when someone seeks outevidence to confirm their hypothesis and that in thenon-peer reviewed studies the officers were told thedrug a person took and as a result "it is likely that

3 3


34/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 3 92 1 0 P . 0 3 5 / 0 3 8they will reach the result in terms of what they are

ctually impaired by." (Tr. 9/2 0/ 10 at 165-66)Under the Frye-Reed standard the drug

recognition protocol is a new and novel techniquer because it purports to create a protocol for police

officers to render a medical diagnosis. When therelevant scientific community is properly defined toinclude disinterested medical professionals it isclear that the drug recognition protocol is notgenerally accepted as reliable.

2. Md. R. 5-702Expert testimony discussing novel scientific

theories must meet the Frye/Reed standard in additionto the Md. R. 5-702 requirements to be admissible.Expert testimony addressing non-novel scientificevidence, however, must only meet the requirements ofMd. R. 5-702. United States v. Ho rn, 185 F. Supp. 2d530, 547-48 (D. Md. 2002) (Under Maryland evidence law,the Frye/Reed test applies only to introduction of


35/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 4 02 1 0 P . 0 3 6 / 0 3j [novel] scientific evidence, and Rule 5-702 alonecovers all other types of expert opinion testimony.)Md. R. 5-702 provides:Expert testimony may be admitted inform of an opinion or otherwise ifthe court determines that the testimonywill assist the trier of fact tounderstand the evidence or to determinea fact in issue. In making thatdetermination, the court shall determine(1) whether the witness is qualifiedas an expert by knowledge, skill,experience, training, or education, (2)the appropriateness of the experttestimony on the particular subject,and (3) whether a sufficient factualbasis exists to support the experttestimony. 6

Applying Md. R. 5-702 to the proposed DREtestimony, the Court finds that a drug recognitionexpert is not sufficiently qualified to render anopinion, that the testimony is not relevant, and theprobative value of the evidence is substantiallyoutweighed by its prejudicial effect.

6 In Daubert v Merrell Dow Pharmaceuticals, Inc.,509 U S, 579 (199 3). held that the Frye standard had , beensuperseded by Federal Rule of Evidence 702. See also Kumho Tire Company, Ltd .v.. Carmichael, 526 U_S. 137(1999 ). How ever, when the M aryland Ru les of Evidence were drafted, the Comm ittee specifically stated thatM aryland Ru le 5-702, although patterned on the Feder al Rule, was not intended to overrule Reedy, State, 283 Md374 and the Frye-Reed standard is followed in M aryland to determine the admissibility of scientific evidence.

35


36/37

F r o n t : 03/05/2012 13:40210 P.037/034. IV. ConclusionBased upon the Court's review of ten days of

expert testimony, arguments of counsel, case law,exhibits, and the written closings of counsel, theCourt makes the following:

Findings of FactThe DRE Protocol fails to produce an accurate andreliable determnation of whether a suspect isimpaired by drugs and. by what specific drug he isimpaired.The DRE training police officers receive does notenable DREs to accurately observe the signs andsymptoms of drug impairment, therefore, policeofficers are not able to reach accurate and reliableconclusions regarding what drug may be causingimpairment.

Conclusions of LawThe State failed to prove by a preponderance of theevidence that the drug evaluation and. classificationprogramis not newor novel and is generally acceptedwthin the scientificcommunity and, therefore-, Itsubject to analysis under Frye v. United States andReed v. State.The drug evaluation and classification program doesnot survive a Frye/Reed challenge because it is notgenerally accepted as valid and reliable in therelevant scientific community which includespharmacologists, neurologists, opthamologists,.toxicologists, behavioral research psychologists,forensic specialists and medical doctors.

36


37/37

F r o m :3 / 0 5 / 2 0 1 2 1 3 : 4 02 1 0 P . 0 3 8 / 0 3For the reasons set forth above, the Courthereby grants Defendants' Motion To Exclude TheDrug Recognition Expert Protocol and DrugRecognition Expert Opinion.

Order

It is, by the Circuit Court for CarrollCounty, thisday of March, 2012,ORDERED, that Defendants' Motion ToExclude The Drug Recognition Expert Protocol andDrug Recognition Expert Opinion be, and ithereby is, granted.

JUDG. MICHAEL M. GALLOWArPENT ERED MAR - 5 2012

Documents

DUI Expert Dismissed