A Drug Recognition Expert (DRE) is someone who can testify what kind of substance someone is under the influence of. DREs should only be allowed to testify as experts if they follow the proper DRE procedure. If the procedure is not followed the science used to recognize the substance someone is under the influence of is not presumed to be reliable. Therefore one of the foundations for a DRE to testify as an expert is to show that the DRE procedure was proper administered
FOUNDATION
The court can “take judicial notice that… test results are generally accepted as reliable and thus are admissible into evidence once a proper foundation has been laid that the test was correctly administered by a qualified DRE. See Williams v. State, 710 So.2d 24 (Fla. 3rd DCA 1998).
[T]he burden is still on the State to provide a proper foundation by demonstrating the test was reliably administered by a qualified technician. See Williams v. State, 710 So.2d 24 (Fla. 3rd DCA 1998) (Citing Zimmerman v. State, 693 A.2d 311 (Del.1997)).
12 STEP TEST
In footnote 23 Williams cites to State v. Klawitter, No. C6-93-2092 [518 N.W.2d 577](Minn. June, 30 1994) which gives the 1991 manual for laying the DRE foundation stating:
An updated 1991 "pretraining" manual describes a 12-step drug recognition protocol:
- a breath-alcohol test;
- an interview with the arresting officer;
- a preliminary medical examination, including taking the suspect's pulse, to determine whether immediate medical attention must precede further investigation;
- eye examinations, including nystagmus and convergence tests;
- motor skills tests;
- an examination of pulse, temperature, and blood pressure;
- a pupil 580*580 measurement under four lighting conditions and an "ingestion examination," checking the suspect's nose and mouth for signs of inhalation or smoking;
- an "examination for muscle rigidity";
- a search for needle marks;
- questioning of the suspect in which the officer should suggest that the officer knows the suspect has used certain drugs;
- documentation of the officer's "expert opinion" of what categories[2] of drugs, if any, have impaired the suspect's ability to drive; and
- a toxicological examination.
Of the 12 steps only number 4, which consists of the Horizontal Gaze Nystagmus test (HGN), the Vertical Gaze Nystagmus test (VGN), and Lack of Convergence test (LOC) are scientific. See Williams v. State, 710 So.2d 24 (Fla. 3rd DCA 1998).
With the exception of step 4 a lay witness is able to testify to their observation, but their testimony should be limited to their observations. See Williams v. State, 710 So.2d 24 (Fla. 3rd DCA 1998). See also Field Sobriety Exercise Motion In-Limine.
