9.16Drug Recognition Evaluator or Expert Testimony

Drug Recognition Evaluator or Expert (DRE) testimony is not automatically admissible, and the trial court must still make a determination whether a DRE officer is qualified to offer expert testimony. See People v Bowden, 344 Mich App 171, 175 n 2 (2022) (noting that even if a person’s “certification designates him to be a drug recognition ‘expert,’ that label has no bearing on whether he may properly testify as an expert for purposes of MRE 702”). In Bowden, “the prosecution filed a motion in the district court requesting the court to ‘declare [a deputy involved in the traffic stop with the defendant] an expert in the field of Drug Evaluation and Classification and be allowed to testify, and provide an expert opinion, as a [DRE].’” Id. at 177 (the defendant was charged with operating while intoxicated on the basis of marijuana use). However, “the prosecution did not present any evidence in the district court to show that the DRE protocol had been validated as a reliable method for demonstrating a person’s level of impairment due to marijuana or the degree to which a person’s driving abilities could be diminished by any given level of marijuana.” Id. at 189. Although the “studies on which the prosecution relied demonstrated the DRE protocol’s level of accuracy with respect to determining whether a particular type of substance was present in a person’s blood,” “neither of the submitted reports purported to even address the question of how particular levels of marijuana impacted a person’s ability to drive or rendered a person ‘impaired.’” Id. at 189. Accordingly, the Court concluded that “the determination under the DRE protocol that a person is ‘impaired’ and unable to safely drive a car appears to be ultimately based on the DRE officer’s subjective judgment, and there is no evidence in this record that the ability of a person to make such a judgment based on the application of the DRE protocol has been tested to demonstrate the accuracy and validity of reaching such a conclusion on a person’s level of impairment due to marijuana.” Id. at 189. The Bowden Court noted that the “prosecution did not present any evidence that the DRE protocol has been tested, or has a known error rate, with respect to the purpose for which the prosecution intended to use the results of the protocol in this case—to provide evidence of defendant’s level of impairment and impaired driving ability.” Id. at 190. The Court commented that there was simply no evidence “to support that the DRE protocol [could] reliably be used to detect the degree or level of intoxication caused by marijuana and determine whether that level of intoxication has made the person unable to safely drive a motor vehicle.” Id. at 191. Because the prosecution “failed to establish any valid connection between the use of the DRE protocol and a conclusion regarding the degree to which a person’s driving ability was diminished by the use of marijuana,” the Bowden Court held that “the prosecution failed to meet its burden to establish the reliability, and thus the admissibility, of the proposed expert testimony.” Id. at 191.