Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header
× You have 2 more free articles available this month. Subscribe today.

Idaho Supreme Court Announces Prospectively Testimony by Drug Recognition Expert Requires State to Comply With Expert Witness Disclosure Requirements of Rule 16(b)(7)

by Douglas Ankney

The Supreme Court of Idaho announced, “that henceforth, testimony from drug recognition expert requires the state to comply with the expert witness disclosure requirements set forth in Idaho Criminal Rule 16(b)(7).”

Timothy Dacey was arrested on suspicion of Driving under the Influence (“DUI”), but a subsequent breath test revealed no alcohol in his blood. Officer Jessica Raddatz conducted a drug recognition evaluation (“DRE”) of Dacey. Raddatz was listed as a lay witness in the State’s discovery response prior to Dacey’s trial, and no expert disclosure was provided in response to Dacey’s request.

On the morning of trial, Dacey learned that the State intended to have Raddatz testify about the physiological effects or indicators revealing a person is on the “downside” of a methamphetamine high. Dacey informed the trial court, via objecting to her testifying as an expert, that the indicators of which she would testify were not included in the DRE handbook.

The magistrate judge stated he anticipated Raddatz’s testimony to be she “gave all of the tests and the matrix, plugged the numbers into the thing. It spit it out. My opinion, based on the-plugged it into the matrix, that the person that was testing was under the influence of a central nervous stimulant, right?” The State agreed. The magistrate concluded Raddatz’s testimony was merely passive analysis of reading the results of a matrix and her testimony was the common sense of a layperson, not an expert.

Of significance to the Court’s opinion, Raddatz testified she was “an officer who receives specialized training” in recognizing the impairment caused by various drugs and its effect on a person’s ability to drive a motor vehicle. She testified that Dacey’s physiological signs had all appeared “normal”—his pulse, blood pressure, and body temperature were all in the low-to-normal range. His pupils were normal in size but did not rebound quickly from dilation and his muscle tone was rigid. Under UV light, Dacey had a pinkish substance around his mouth and nostrils, indicating ingestion.

Raddatz testified that even though Dacey’s physiological signs were “normal” they could be taken to be indications that his body was returning to “homeostasis”—that is, based on the other indicators and the totality of the circumstances she observed, it was her opinion “that Mr. Dacey was either under the influence of a central nervous system stimulant, the downside of that, you know, kind of coming down on it. Or a narcotic analgesic.”

On cross-examination, Dacey’s counsel questioned Raddatz about the portion of the DRE performed on Dacey that did not indicate impairment, i.e., the physical tests of standing on one foot, eye coordination, etc. Raddatz testified she did not assign any scores to the results of those tests because they were inconclusive; consequently, she testified her conclusions were not the result of numerical test scores “plugged” into the matrix but were based “on what I feel this person may or may not be under the influence of” after observing all the tests.

On re-direct, Raddatz testified she had received specific training on the downside effects of certain drugs and that she had supplemented this knowledge on a regular basis with annual trainings, personal study of peer-reviewed articles, and her own self-directed research.

During closing arguments, the State relied heavily on Raddatz’s testimony. In particular, the State pointed out that it was only due to Raddatz’s experience and education that Dacey’s normal physiological signs could be seen as signs of intoxication. The jury convicted Dacey, and he appealed.

The district court concluded that the magistrate had not erred in allowing Raddatz to testify as a lay witness. But even if the magistrate had erred, it was harmless because other evidence proved Dacey’s guilt beyond a reasonable doubt. Dacey appealed to the Idaho Supreme Court, arguing that Raddatz’s testimony about the downside effects of meth was that of an expert witness and it was error to allow her to testify as a lay witness.

The Court observed Idaho Rule of Evidence (“IRE”) 701 states: “If a witness is not testifying as an expert, testimony in the form of an opinion or inference is limited to one that is:

• rationally based on the witness’s perception;

• helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

• not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

IRE 702 further states: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form on an expert opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

Idaho Rule 16(b)(7) requires the State to provide, upon written request of the defendant, “a written summary or report of any testimony that the state intends to introduce at trial” that qualifies as expert witness testimony. The disclosure must include a summary of the “witness’s qualifications.” Id. Dacey requested such a disclosure, but the State failed to provide any on the basis that Raddatz was a lay witness.

The Idaho Supreme Court has held that officers may testify as lay witnesses where an officer explains an investigative technique but does not offer a personal opinion. State v. Hall, 419 P.3d 1042 (Idaho 2018).

In the instant case, the magistrate anticipated that Raddatz would testify that she “plugged” some numbers into a matrix “and something pops out” indicating the person is under the influence of a central nervous system stimulant. Based on this expectation—confirmed by the State—the magistrate allowed her to testify as a lay witness.

But Raddatz’s testimony revealed she was a drug recognition expert, which is “an officer who receives specialized training.” And she rendered an opinion based on her observations as interpreted by her “education and experience.” And as an expert witness, the State was obligated to provide the disclosure of Rule 16(b)(7), the Court stated.

The district court held that any error was harmless. Once a defendant has established error occurred, the burden falls to the State to prove the error was harmless beyond a reasonable doubt. State v. Perry, 245 P.3d 961 (Idaho 2010). In the instant case, the State believed incorrectly it was Dacey’s burden to prove the error was reversable, the Court observed. Consequently, the State made no argument in the district court to show the error was harmless, so the issue was forfeited in the Idaho Supreme Court. Even so, the Court concluded the error was not harmless. That is, the evidence in the case did not establish Dacey’s guilt beyond a reasonable doubt without the error. See State v. Garcia, 462 P.3d 1125 (Idaho 2020). This was highlighted by the State’s heavy reliance on Raddatz’s testimony in closing arguments.

Finally, the Court stated “[b]ecause the role of the drug recognition expert is to analyze and interpret data in order to form an opinion about the cause of the subject’s impairment—rather than passively ‘plugging’ data into a system and reading the result—such evidence is necessarily based on the type of specialized ‘knowledge, skill, experience, training, or education’ contemplated by Rule 702. Therefore, we conclude that such testimony can only be provided by a qualified and properly disclosed expert.” Based on that conclusion, the Court announced “[g]oing forward, testimony from a drug recognition expert, even when solely based on information from the DRE handbook and matrix, will require that the witness be disclosed as an expert witness pursuant to Idaho Criminal Rule 16(b)(7).”

Thus, the Court held that the district court erred in upholding the magistrate’s ruling allowing Raddatz to testify as a lay witness.

Accordingly, the Court reversed and remanded to the district court with direction to vacate Dacey’s judgement of conviction and remand to the magistrate court for further proceedings consistent with the Court’s opinion. See: State v. Dacey, 491 P.3d 1205 (Idaho 2021). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

State v. Dacey



The Habeas Citebook Ineffective Counsel Side
Advertise Here 4th Ad
The Habeas Citebook Ineffective Counsel Side