Court of Appeals of Alaska Finds the 12 Step Drug Recognition Evaluation Protocol is Scientific Evidence Subject to the Daubert Standard

The DRE protocol, which is also known as the Drug Influence Evaluation, consists of twelve steps: (1) a breath alcohol test to rule out alcohol as the source of the driver’s impairment; (2) an interview with the arresting officer to ascertain the driver’s behavior and any admissions made during or after the traffic stop; (3) a preliminary physical examination, which includes checking the driver’s eyes, taking a pulse, and asking general health questions; (4) an examination of the driver’s eyes for horizontal gaze nystagmus, vertical gaze nystagmus, and lack of convergence; (5) administration of four balance and divided attention tests; (6) a check of the driver’s vital signs; (7) measurement of the driver’s pupil size under different lighting conditions and a check of the driver’s nose and mouth for signs of drug ingestion; (8) a check for rigid or flaccid muscle tone; (9) a physical inspection of the driver’s body for possible injection sites; (10) focused questioning of the driver; (11) the evaluator’s formal opinion as to whether the driver is under the influence of a certain category of drugs; and (12) blood or other toxicological testing to confirm the presence of a controlled substance. The evaluator does not rely on any one observation to form an opinion but rather looks to the totality of the circumstances to determine whether the subject is impaired.

A DRE evaluator is trained to identify impairment caused by seven different categories of drugs: central nervous system depressants, central nervous system stimulants, dissociative anesthetics, narcotic analgesics, inhalants, hallucinogens, and cannabis. In order for the DRE results to be considered valid, the final step — the blood test — must confirm that the defendant ingested at least one category of drugs identified by the officer. However, the blood test need not corroborate the officer’s identification in its entirety. For example, if the officer believes that the driver is impaired by only one category of drugs, the test results must confirm that same category, but if the test results also reveal one additional category of drugs, the DRE is still considered valid. Similarly, if the officer identifies two categories of drugs and the blood test confirms only one of those categories…the DRE is also still considered valid. In other words, if the officer correctly identifies one category of drug — and does not incorrectly identify more than one category of drug — then the DRE protocol considers the officer’s evaluation a success. Bragaw v. State, 2021 WL 750291 (Alaska App. 2021).

agree[d] with the reasoning of those courts that have concluded that the protocol as a whole constitutes scientific evidence. As the Oregon court noted, the DRE “relies, for its legitimacy, on a cluster of published field and laboratory studies whose scientific patina naturally would have a tendency to influence lay persons.”The protocol’s original development and ongoing validity depend upon the scientific knowledge of physicians and toxicologists to attribute specific physiological, pharmacological, and behavioral observations to particular controlled substances. Indeed, we note that the national DRE certification board includes scientists and medical professionals as essential members — an indication of the importance of these other fields to the DRE protocol.

We acknowledge, as have all other courts to address this issue, that many of the individual features of the DRE protocol would not amount to scientific evidence on their own. But we agree with the Oregon court that blending scientific and observational techniques into a “systematized and standardized,” multi-step procedure — conducted by an officer with a highly specialized certification who testifies to a “battery of medicalized tests” and then concludes with a “complicated end-stage analysis” as to the nature and origin of a defendant’s impairment — creates a substantial likelihood that “a juror’s perception of the validity of each component will likely be enhanced by the scientific imprimatur of the whole.”