State v. Klawitter

518 N.W.2d 577, 1994 Minn. LEXIS 519, 1994 WL 314708
CourtSupreme Court of Minnesota
DecidedJune 30, 1994
DocketC6-93-2092
StatusPublished
Cited by46 cases

This text of 518 N.W.2d 577 (State v. Klawitter) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Klawitter, 518 N.W.2d 577, 1994 Minn. LEXIS 519, 1994 WL 314708 (Mich. 1994).

Opinions

OPINION

COYNE, Justice.

We granted the parties’ joint petition for accelerated review in this case in order to address an important and doubtful certified question: whether and to what extent so-called Drug Recognition Expert (DRE) testimony is admissible in prosecutions for driving while under the influence of a controlled substance.

This case involves the prosecution of 13 individuals for driving while under the influence of a controlled substance. The parties agreed to use the prosecution of one of the defendants, Larry Klawitter, as a test case. The state contends specifically that defendant Klawitter drove while under the influence of marijuana. It seeks to prove this primarily through (a) the testimony by the arresting officer that defendant appeared to be under the influence of a drug, (b) the admission of defendant to the officer that he had smoked two marijuana joints earlier in the day, and (c) the testimony of a state trooper who performed a 12-step examination of defendant following what is called the “Drug Recognition Protocol.”

Defendant moved before trial to suppress the trooper’s testimony as novel scientific evidence not generally accepted by the scientific community and therefore not admissible under what has become known as the Frye rule.1 After the suppression hearing, at which ten witnesses testified for the state and four witnesses for the defense, the trial court denied the motion to suppress. Specif[579]*579ically, the trial court ruled (1) that one component of the protocol, the visual examination of the defendant’s eyes to determine nystag-mus and convergence, is subject to and satisfies the Frye test and (2) the other components of the protocol are “essentially the same components that are used by police officers in evaluations for alcohol impairment” or are routine examinations that “can be competently performed by a police officer” and therefore are not scientifically new and are not subject to the Frye test. The trial court concluded that the trooper may testify concerning the observations made while following the protocol and, based on those observations, may give an opinion on impairment.

With the qualifications set out below, we affirm the trial court’s decision denying the defendant’s motion to suppress.

This ease had its genesis on August 23, 1992, when Officer Sporny of the Minneapolis Police Department stopped defendant after he observed him cross the center line of Central Avenue and nearly hit a concrete median. Sporny noticed that defendant appeared very nervous and his eyes were “bloodshot, watery and glassy.” Defendant admitted drinking two cups of gin and smoking two marijuana joints earlier in the day. After giving defendant a preliminary alcohol screening test, which defendant passed, Sporny concluded that defendant was under the influence of a drug and arrested him for driving while under the influence. On the way to the department’s chemical testing station, Sporny radioed ahead and asked for a “Drug Recognition Expert.”

Trooper Kevin Daly, the “Drug Recognition Expert,” met Sporny and defendant at the chemical testing station. Daly had been with the patrol for six years and is a certified emergency medical technician. In 1987 he attended a two-day course in which he learned “standardized field sobriety testing,” including “horizontal gaze nystagmus” testing, “one leg stand,” and “walk and turn.” Then in 1991 he received specialized training in evaluating people suspected of driving while under the influence of a controlled substance. Specifically, he attended a two-part nine-day course, taught by police officers, on the recognition of deviant eye movements and of irregularities in vital signs exhibited by impaired motorists, and on recognizing the effects of different types of drugs.

The manual used for the first two days— the “pretraining” part of the nine-day course—describes various drugs which might impair driving and their physical effects. The manual explains several field dexterity tests: the “Romberg Balance Test,” in which a suspect closes his eyes, tilts his head back, and tries to estimate the passage of 30 seconds; the “walk and turn,” in which the suspect attempts to walk a straight line heel-to-toe, turn around and repeat it; the “one leg stand,” in which the suspect is asked to balance on one foot; and the “finger-to-nose” test. The manual also explains eye conditions which may be indicative of impairment: “horizontal gaze nystagmus,” the rapid involuntary horizontal oscillation of the eyes when attempting to follow a target moved side-to-side; “vertical nystagmus,” the inability to smoothly track the up-and-down progress of a stimulus; lack of convergence, the inability to cross eyes to focus on a target directly before the eyes. The manual cautions that the presence or absence of these optical deviations does not necessarily reveal or rule out drug impairment. Trooper Daly later testified that nystagmus “must be very obvious” before he will document it. According to the manual, pupil dilation or constriction also reveals the use of certain drugs. Horizontal nystagmus and the coordination tests, except for the Romberg test, are already used in field sobriety testing. The manual also deals with examining body temperature and blood pressure; some types of drugs elevate vital signs, some kinds of drugs depress them, and some drugs do neither.

An updated 1991 “pretraining” manual describes a 12-step drug recognition protocol: (1) a breath-alcohol test; (2) an interview with the arresting officer; (3) a preliminary medical examination, including taking the suspect’s pulse, to determine whether immediate medical attention must precede further investigation; (4) eye examinations, including nystagmus and convergence tests; (5) motor skills tests; (6) an examination of pulse, temperature, and blood pressure; (7) a pupil [580]*580measurement under four lighting conditions and an “ingestion examination,” checking the suspect’s nose and mouth for signs of inhalation or smoking; (8) an “examination for muscle rigidity”; (9) a search for needle marks; (10) questioning of the suspect in which the officer should suggest that the officer knows the suspect has used certain drugs; (11) documentation of the officer’s “expert opinion” of what categories2 of drugs, if any, have impaired the suspect’s ability to drive; and (12) a toxicological examination.

The manual for the seven-day leg of the training explains the same principles in greater detail, but also reviews case law up to publication and details the “expected” physiological effects of each type of drug. In the seven-day training the candidates evaluate simulated reports. Officers are tested at each stage of the training and are required to document the results for every step on an evaluation sheet. The training stresses the importance of the evidence: “The chemical test simply cannot prove that the suspect was impaired ⅜ * * at the time * * *. It is up to you to prove that, and to prove that the nature of the impairment was consistent with some category or combination of drugs.” In addition, the National Highway Transportation and Safety Board promulgates standards for certification and recertification of officers. The Minnesota state director of DRE programs testified that the federal government “sets up a schedule and a course outline that is to be followed.” A national DRE officer explained that a DRE must perform four evaluations every two years for recertification.

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Cite This Page — Counsel Stack

Bluebook (online)
518 N.W.2d 577, 1994 Minn. LEXIS 519, 1994 WL 314708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-klawitter-minn-1994.