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Janice Elaine Bragaw v. State of Alaska (2/26/2021) ap-2692

Janice Elaine Bragaw v. State of Alaska (2/26/2021) ap-2692


         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  

                                  303 K Street, Anchorage, Alaska  99501

                                             Fax:  (907) 264-0878

                                     E-mail:  corrections @



                                                                    Court of Appeals No. A-12854  

                                    Appellant,                   Trial Court No. 3KN-16-00097 CR  


                                                                              O P I N I O N  


                                    Appellee.                      No. 2692 - February 26, 2021  


                  Appeal from the Superior Court, Third Judicial District, Kenai,  


                  Anna M. Moran, Judge.  

                  Appearances:   Callie Patton Kim, Assistant Public Defender,  


                  and Beth Goldstein, Acting Public Defender, Anchorage, for the  

                  Appellant. Michal Stryszak, Assistant Attorney General, Office  


                  of  Criminal  Appeals,  Anchorage,  and  Kevin  G.  Clarkson,  


                  Attorney General, Juneau, for the Appellee.  

                  Before:   Allard, Chief Judge, and Wollenberg and Harbison,  



                  Judge HARBISON.  

----------------------- Page 2-----------------------

                     Janice   Elaine   Bragaw   was   convicted,   following   a   jury   trial,   of   felony  


driving under the influence.                                                                                            

                                             On appeal, she argues that the trial court erred in admitting  


testimony about her performance on a drug recognition evaluation (DRE) without first  


requiring the State to establish the scientific validity of the DRE protocol.  Bragaw also  


argues  that  the trial court erred in prohibiting a defense expert from critiquing the  


scientific reliability of certain aspects of the DRE that rely on medical or physiological  


knowledge as well as the reliability of the DRE protocol in general.  


                     For the reasons explained here, we conclude that the DRE protocol is  


scientific  evidence  subject  to  the  Daubert/Coon  standard,  and  that  the  trial  court  



thereforeerredin admitting thisevidencewithout first determiningitsscientificvalidity. 


We also conclude that the trial court erred in excluding the proposed testimony from  


Bragaw's expert.  Because these two errors were not harmless, we reverse Bragaw's  


conviction and remand for a new trial.  


          Background facts and procedural history  


                     In January 2016, Alaska State Trooper Ryan Tennis stopped a vehicle  


driven  by  Bragaw  for  a  cracked  taillight  and  swerving  within  the  lane  of  travel.  


AlthoughBragawinitially denied drinking, when Tennis contacted her, henoticed amild  


odor of alcohol while speaking with her.   Tennis also noted that many of Bragaw's  


answers to his questions were confused or non-responsive, and that she had hesitant and  

     1    AS 28.35.030(n).  Bragaw also pleaded no contest to driving with a revoked license  

and  two  counts  of   violating  conditions  of   release.    Bragaw  does  not  challenge   these  

additional convictions on appeal.  

     2    See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993); State v.  


Coon, 974 P.2d 386, 393-94 (Alaska 1999) (adopting the Daubert standard for admissibility  


of scientific evidence in Alaska), abrogated on other grounds by State v. Sharpe, 435 P.3d  

887, 899-900 (Alaska 2019).  

                                                               - 2 -                                                          2692

----------------------- Page 3-----------------------

slightly slurred speech.                                                              Bragaw told him that she took several prescribed medications,                                                                                                                          

including Librium - a benzodiazepine whose side effects include drowsiness, reduced                                                                                                                                                                                                           

motor coordination, and memory impairment.                                                                                                                                

                                                 Based   on   these   observations,   Tennis   asked   Bragaw   to   submit   to   field  

sobriety tests.                                     Although Bragaw passed the alphabet test, she failed the remaining field                                                                                                                                                                               

sobriety tests:  the horizontal gaze nystagmus test, the walk-and-turn test, the one-leg-                                                                                                                                                                                                    

stand test, and the counting test. The trooper ultimately decided to end the walk-and-turn                                                                                                                                                                              

and one-leg-stand tests early out of concern that Bragaw "was almost falling over."                                                                                                                                                                                                                                            

After conducting these tests, Tennis asked Bragaw again whether she had consumed any                                                                                                                                                                                                                           

alcohol.   This time, Bragaw admitted to having a mixed drink several hours earlier.                                                                                                                                                                                                                              

                                                 Thetrooperarrested Bragawfordrivingunder theinfluenceand                                                                                                                                                                         transported  

her to the trooper post, where a breath test revealed a .032 percent breath alcohol content.                                                                                                                                                                                                                                   

Because Tennis suspected that Bragaw's level of impairment may have been related to                                                                                                                                                                                                                                 

her   prescription   medications   as   well   as   her   alcohol   consumption,   he   requested   the  

assistance of another trooper, Trooper Matthew Wertanen, to performa drug recognition                                                                                                                                                                                             

evaluation (DRE) on Bragaw.                                                                                    3  


                                                                                                                       After performing the DRE, Wertanen concluded that  


Bragaw "show[ed] signs of consumption of [central nervous system] depressants and  


 [centralnervous system]stimulants." Bragawsubsequently consented to ablood test that  


confirmed the presence of Librium - a central nervous system depressant - but did not  


reveal any evidence of stimulants.  


                                                 Because Bragaw had been convicted of driving under the influence twice  


within the preceding ten years, the State charged Bragaw with felony driving under the  

            3           A drug recognition evaluation is a standardized, twelve-step protocol "designed to   

enable law enforcement to identify (1) whether a subject's ability to operate a vehicle is                                                                                                                                                  

impaired and (2) which category of drugs has affected a subject."                                                                                                                                                                  State v. Aleman, 194 P.3d  

 110, 112 (N.M. App. 2008).  

                                                                                                                                                     -  3 -                                                                                                                                                 2692

----------------------- Page 4-----------------------


influence.   Prior to trial, the State filed a notice identifying Wertanen as "both a fact and                                                                                                                            

expert witness" who would testify not only about his personal observations of Bragaw,                                                                                                                        

but also about the DRE protocol itself, including the protocol's accuracy, reliability, and                                                                                                                               

"[w]idespread acceptance," as well as to his expert opinion regarding Bragaw's level of                                                                                                                                       


                                   In response, Bragaw filed a motion to exclude testimony about the DRE                                                                                                             

unless the State first complied with the requirements for admission of scientific evidence                                                                                                                  

under   Daubert/Coon,   in   particular,   by   showing   that   the   testimony   was   based   on  

 scientifically valid reasoning or methodology that could properly be applied to the facts                                                                                                                             


of Bragaw's case.                                                                                                                                                                                                             

                                                   Bragaw's attorney conceded that Wertanen was entitled to testify to  


his personal observations.   However, she argued that the DRE protocol is scientific  


evidence subject to the court's gatekeeping function and that both the DRE protocol and  


the opinion Wertanen formed based on the protocol were unreliable and, accordingly,  




                                   Analogizing Wertanen's proposed testimony to the administration of field  


 sobriety tests, thetrial courtconcluded thatWertanen's testimonywas "not scientific, but  


rather is based on his observations that are qualified by his experience."  Consequently,  


the  court  ruled  that  Wertanen's  testimony  about  the  DRE  was  not  subject  to  the  


Daubert/Coon  standard.   Consistent with this ruling, the court allowed Wertanen to  


testify about the DRE protocol, but it instructed the parties to refer to Wertanen only as  


a DRE "evaluator," rather than an "expert," and it required the parties to refer to his  


conclusion that Bragaw was impaired by a controlled substance as a "suspicion" rather  


than an "opinion."  

         4        AS 28.35.030(n).  

         5        See Daubert, 509 U.S. at 592-93; Coon, 974 P.2d at 393-94.  

                                                                                                           - 4 -                                                                                                       2692

----------------------- Page 5-----------------------

                                                                                        At trial, Wertanen testified at length about his training and certification as                                                                                                                                                                                                                                                                                                                                                                                                    

 a drug recognition evaluator, the twelve-step DRE protocol, Bragaw's performance on                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

 each of those steps, and his conclusion regarding Bragaw's consumption of controlled                                                                                                                                                                                                                                                                                                                                                                                                                               

 substances.   Wertanen testified that although he had suspected Bragaw consumed both                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 depressants and stimulants, a later blood test confirmed only the presence of a depressant                                                                                                                                                                                                                                                                                                                                                                                                                

-  the Librium medication Bragaw had admitted taking.                                                                                                                                                                                                                                                                                                                                 

                                                                                        After the State rested its case-in-chief, Bragaw called a medical expert,                                                                                                                                                                                                                                                                                                                                                                        

Dr. Norman Means, to testify about his criticisms of the physiological portions of the                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

DRE protocol; his criticism of the reliability of the DRE protocol in general; his opinion                                                                                                                                                                                                                                                                                                                                                                                                                                           

that no conclusion of impairment could be drawn from the quantity of Librium found in                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

Bragaw's blood; and the varying effects medications may have on individual patients.   

 The court allowed Dr. Means to testify about these latter two subjects as well as on                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

 limited topics related to the DRE, such as what medical professionals consider a normal                                                                                                                                                                                                                                                                                                                                                                                                                                          

body temperature and pulse rate. But the court prohibited Dr. Means from providing his                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

 opinion criticizing the reliability of the DRE protocol because (according to the trial                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 court) the validity of the DRE was "not an issue currently before the court."                                                                                                                                                                                                                                                                                                                                                                                                                                         

                                             Overview of the DRE protocol                                                                                                                 

                                                                                        In order to understand Bragaw's claim and our resolution of this case, it is                                                                                                                                                                                                                                                                                                                                                                                                

necessary to lay out the origins and facets of the DRE protocol in some detail.                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                                        The DRE protocol originated in the 1970s as a means to assess drivers                                                                                                                                                                                                                                                                                                                                                                           

 suspected of driving under the influence of a substance other than alcohol.                                                                                                                                                                                                                                                                                                                                                                                                                                  6  The DRE  


protocol has three major functions:  

                      6                     See State v. Sampson, 6 P.3d 543, 548 (Or. App. 2000) (recounting the history of the                                                                                                                                                                                                                                                                                                                                                                                                                                     

DRE protocol).  

                                                                                                                                                                                                                                                                              -  5 -                                                                                                                                                                                                                                                                         2692

----------------------- Page 6-----------------------

                                First, it attempts to determine the existence of impairment in                                                                              

                                a driver and to determine whether that impairment is caused                                                                     

                                by alcohol or drugs. Second, it asks whether the cause of the                                                                             

                                impairment is something other than alcohol or drugs, such as                                                                                

                                a medical condition.                                Third, if the impairment is caused by                                                 

                                drugs, the DRE protocol purports to identify which drug,                                                                           

                                among seven broad categories, covered the impairment.                                                                                  [7]  


                                Developed through the joint efforts of the Los Angeles Police Department  


 and the Southern California Research Institute, the protocol "combined [field sobriety  


tests]  with  police  drug  training,  medical  information  about  the  physiological  and  


behavioral effects of controlled substances, and law enforcement information about  



police interaction with impaired drivers." 


                                In thedecades thatfollowed, officersfromall fifty stateshavebeencertified  


 as drug recognition evaluators by the International Association of Chiefs of Police -the  


organization responsible for providing national oversight of the DRE program - and  


 specifically by the association's Drug Recognition Section, whose membership includes  


law enforcement officers as well as others who have a "professional interest" in the DRE  



program, including physicians, toxicologists,andprosecutors.                                                                                         Other organizations have  


published numerous studies examining the accuracy of the DRE protocol, including  



controlled clinical studies and field validation studies. 

        7       Id. (internal citation omitted).  

        8       Id.    

        9       Gregory T. Seiders, Comment, Call in the Experts:  The Drug Recognition Expert  


Protocol and Its Role in Effectively Prosecuting Drugged Drivers, 26 Widener L.J. 229, 233- 

 34 (2017).  

         10     Id.  at 260-61; State v. Baity, 991 P.2d 1151, 1154 (Wash. 2000); see also State v.  


Aleman , 194 P.3d 110, 118 (N.M. App. 2008) (noting that the DRE has been "the subject of  


                                                                                                   -  6 -                                                                                             2692

----------------------- Page 7-----------------------

                     Only an officer properly trained and certified in the administration of the                                      


DRE may conduct the evaluation.                                                                                                    

                                                           In general, to obtain certification, an officer must  


complete"classroominstruction and trainingon topics such asfield sobriety tests, human  


physiology,  and  drug  pharmacology,"  and  achieve  at  least  a  seventy-five  percent  



                                                                                             Certification is valid for two  

toxicological corroboration rate on a certification exam. 


years, and the officer must maintain a minimum accuracy rate and complete continuing  



education requirements in order to renew the certification. 


                     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  

      10   (...continued)  

scrutiny of the scientific community"); State v. Chitwood, 879 N.W.2d 786, 797-99 (Wis.  


App. 2016) (summarizing numerous published studies and peer reviews that examined the  

validity of the DRE as a means of identifying drug impairment).  

      11   Sampson, 6 P.3d at 548.   

      12   Seiders, supra note 9, at 240-41.  

      13   Id.  

                                                                 -  7 -                                                            2692

----------------------- Page 8-----------------------

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. 


                        ADREevaluator is trained toidentify impairment causedbysevendifferent  


categories  of  drugs:                    central  nervous  system  depressants,  central  nervous  system  


stimulants, dissociative anesthetics, narcotic analgesics, inhalants, hallucinogens, and  



                      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 - as occurred in Bragaw's case - 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. 

      14    Id. at 235-38.

      15    Id. at 235 (citation omitted).

      16    Id. at 237 n.39; Sampson, 6 P.3d at 548 & n.4. 

      17    Sampson, 6 P.3d at 549.

                                                                         -  8 -                                                                   2692

----------------------- Page 9-----------------------

            The   DRE   protocol   is   scientific   evidence   subject   to   the   Daubert/Coon  


                       Alaska's "'liberal admissibility standard' for expert testimony allows any                                                

person   with   specialized   knowledge   to   serve   as  an   expert   witness,"   so   long   as   the  

witness's testimony will "help the trier of fact understand [the] evidence or determine                                               


facts in issue."                                                                                                                            

                                The trial court is vested with "broad discretion" to regulate expert  



                         When  a  party  seeks  to  present  expert  testimony  relating  to  scientific  



evidence, the testimony must satisfy the Daubert/Coon standard.                                                    By contrast, when an  


expert  offers  non-scientific  testimony  based  on  "other  technical  or  specialized  


knowledge" that is "derived only from experts' personal experience and intuition" and  


is "not empirically verifiable or objectively testable," the testimony is not subject to  


Daubert/Coon .                                                                                                                                   

                                 Instead,  such  testimony  is  admissible  if  "the  expert  witness  has  



substantial experience in the relevant field and the testimony might help the jury." 


                       Bragaw's case presents an issue of first impression in Alaska: whether the  



DRE protocol as a whole constitutes scientific evidence subject to Daubert/Coon .                                                                   It  

      18    Marron v. Stromstad , 123 P.3d 992, 1002 (Alaska 2005) (quoting                                                  John's Heating  

Serv. v. Lamb, 46 P.3d 1024, 1034 (Alaska 2002)).  

      19    Shepard v. State, 847 P.2d 75, 79 (Alaska App. 1993).  

      20    See Marron, 123 P.3d at 1003-07 (limiting the applicability of the Daubert standard  


to expert testimony based on scientific theory).  

      21    Id. at 1006.  

      22    Thompson v. Cooper, 290 P.3d 393, 399 (Alaska 2012) (internal quotations omitted).  


      23    See  Baker  v.  State,  2016  WL  7422695,  at  *3-4  (Alaska  App.  Dec.  21,  2016)  


(unpublished) (agreeing with the trial court that a defendant's challenge to the scientific  


validity of the DRE protocol was moot and expressing no opinion on the scientific validity  


of the drug recognition exam or whether it merits a Daubert hearing).  

                                                                       -  9 -                                                                  2692

----------------------- Page 10-----------------------

is uncontested that at least some portions of the DRE protocol are scientific.                                                              This Court   

has previously held that the horizontal gaze nystagmus test, which is included within step                                                               


four   of   the   DRE   protocol,   is   scientific   evidence.                                                                                           

                                                                                                     Likewise,  the  final  step  of  the  


protocol, which in Bragaw's case involved a toxicological analysis of Bragaw's blood  


by  a  forensic  scientist,  clearly  involved  "knowledge  that  has  been  'derived  by  the  



scientific method.'" 


                         But the fact that individual steps may rely on the application of scientific  


principles does not in itself resolve the question of whether the protocol as a whole is  


scientific evidence. As the Alaska Supreme Court has observed, "there is often 'no clear  



line' dividing scientific fromother technical or specialized knowledge."                                                              Indeed, courts  


around the country are split on whether the DRE protocol - and most notably the  


officer's formal opinion as to whether the defendant is under the influence of drugs -  


qualifies as scientific evidence as opposed to technical knowledge based on an officer's  



training and experience. 


                         Several  appellate  courts,  including  those  in  Oregon,  Washington,  and  



Nebraska, have held that the DRE protocol is scientific evidence.                                                                                       

                                                                                                                         For example, in State  


v. Sampson, theOregonCourt ofAppeals concluded that the DREprotocol was scientific  

      24    See Ballard v. State, 955 P.2d 931, 941 (Alaska App. 1998),  overruled on other  

grounds by State v. Coon, 974 P.2d 386 (Alaska 1999).  

      25    Marron , 123 P.3d at 1004 (quoting Daubert v. Merrell Dow Pharm., Inc. , 509 U.S.  

579, 590 (1993)).  

      26    Id. at 1006 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999)).  

      27    See Seiders, supra note 9, at 241-58 (analyzing approaches courts around the country  

have taken to DRE evidence).  

      28    See State v. Sampson, 6 P.3d 543, 548 (Or. App. 2000); State v. Baity, 991 P.2d 1151,   

 1157 (Wash. 2000); State v. Daly, 775 N.W.2d 47, 62 (Neb. 2009).  

                                                                           -  10 -                                                                      2692

----------------------- Page 11-----------------------

evidence because it "draws its authority fromscientific principles," and several of its key                                                                              

components - including the horizontal gaze nystagmus test, vertical gaze nystagmus                                                                        

test, lack of convergence test, vital signs exam, and toxicological analysis - are "based                                                                          



on medical science."                            "Each of those steps produces a test result that compares with  


results established through scientific research that purport to show the subject to be more  



or less likely under the influence of a controlled substance."                                                                  While other portions of  


the DRE protocol are "not clearly based on medical science," the officer's ultimate  


opinion  is  "heavily  informed  by  data  derived  from  the  scientific  portions  of  the  



                         The Oregon court recognized that DRE testimony has "the potential to exert  


a significantly greater influence on the fact finder than nonscientific evidence," given its  


"highly specialized certification procedure,battery ofmedicalizedtests, and complicated  



                                              Thus, "to the extent a DRE protocol is convincing on the issue of  

end-stage analysis." 


whether a defendant was under the influence of a controlled substance, that persuasive  


forceemanates predominantly fromthesubstance and the aura of the scientific principles  



on which its methodology is based."                                             "Although the protocol is a mosaic of scientific  


and  observational techniques, their blending means that a juror's perception of the  

       29     Sampson, 6 P.3d at 550.  

       30    Id.  

       31    Id. ;  see also Baity, 991 P.2d at 1157, 1160 (concluding that the DRE protocol as a                                                                             

whole constitutes scientific evidence, even though many of the individual steps within the                            

DRE are "largely observational").  

       32     Sampson, 6 P.3d at 550; see also Daly, 775 N.W.2d at 62 (characterizing the DRE  


protocol as "a systematic approach that considers a number of different factors" that allows  


an officer to form an opinion regarding the degree and source of a driver's impairment).  

       33     Sampson, 6 P.3d at 550 (emphasis in original).  

                                                                                  -  11 -                                                                              2692

----------------------- Page 12-----------------------

validity of each component will likely be enhanced by the scientific imprimatur of the                                                                 



                        As  the  State  points  out,  some  jurisdictions  have  reached  the  opposite  


conclusion,  i.e.,  that  the  DRE  protocol  does  not  constitute  scientific  evidence.                                                              In  


Bragaw's case, the trial court relied on the reasoning of the United States District Court  


for the District of Nevada, which concluded that the scientific roots of the DRE protocol  



did not render the protocol itself scientific. 


                        We agree 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  

      34    Id.  

      35     United  States  v.  Everett,  972  F.  Supp.  1313,  1320  (D.   Nev.  1997)  ("All  of   the  

manifestations observed by the officer can be traced, ultimately to some scientific principle                  

of physiology.              That does not make the officer's testimony scientific.");                                          see also State v.     

Klawitter, 518 N.W.2d 577, 585 (Minn. 1994) ("Drug recognition training is not designed  

to qualify police officers as scientists but to train officers as observers.").  

      36    See, e.g., Sampson, 6 P.3d at 550.  

      37    Id. ; see also  Seiders, supra note 9, at 260-61; State v. Baity, 991 P.2d 1151, 1154  


(Wash. 2000); State v. Aleman, 194 P.3d 110, 118 (N.M. App. 2008); State v. Chitwood, 879  

N.W.2d 786, 797-99 (Wis. App. 2016).  

      38    Sampson, 6 P.3d at 548; Seiders, supra note 9, at 233-40.  

                                                                         -  12 -                                                                    2692

----------------------- Page 13-----------------------

professionals as essential members - an indication of the importance of these other                                                       

fields to the DRE protocol.                   39  


                       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." 


                       For these reasons, we hold that, taken as a whole, the twelve-step DRE  


protocol is scientific evidence subject to the Daubert/Coon standard.  


                       However, our holding today is a narrow one.  We do not intend to suggest  



that officers cannot testify to their personal observations or to proper lay opinions. 


we leave for another day any effort to define the scope of such testimony.  

      39   See Seiders, supra note 9, at 233-34; Baity, 991 P.2d at 1154.  

      40   See, e.g., Sampson, 6 P.3d at 550 (recognizing that some portions of the DRE protocol   

are "not clearly based on medical science");                             Baity, 991 P.2d at 1157 (characterizing many  

of the DRE steps as "largely observational" rather than scientific).  

      41   Sampson, 6 P.3d at 547, 550.  

      42   See Alaska R. Evid. 602; Alaska R. Evid. 701.  

                                                                    -  13 -                                                                2692

----------------------- Page 14-----------------------

           The   trial   court   erred   in   admitting  testimony   about   the   DRE   protocol  

          without first fulfilling the court's gatekeeper duties under Daubert/Coon  


                     When a party raises a Daubert/Coon objection to scientific evidence, a trial  


court has "both the authority and the responsibility to determine the admissibility of such  


evidence."43  Thesupremecourt has described this as the court's "gatekeeper"duty,44  


it requires the proponent of the scientific evidence to establish "the scientific validity of  


the analysis and/or the procedures that yielded this evidence."45   A court may not simply  


"assume  that  the  evidence  is  scientifically  valid  in  the  absence  of  evidence  to  the  


contrary."46   In making this determination, courts should consider, among other relevant  




                     (1) whether the proffered scientific theory or technique can  


                     be  (and  has  been)  empirically  tested  (i.e.,  whether  the  


                     scientific method is falsifiable and refutable); (2) whether the  


                     theory  or  technique  has  been  subject  to  peer  review  and  


                     publication; (3) whether the known or potential error rate of  


                     the  theory  or  technique  is  acceptable,  and  whether  the  


                     existence   and   maintenance   of   standards   controls   the  


                     technique's   operation;   and   (4)   whether   the   theory   or  


                     technique has attained general acceptance.[47]  


     43   State v. Coon, 974 P.2d 386, 393 (Alaska 1999),                       abrogated on other grounds by State  

v. Sharpe, 435 P.3d 887 (Alaska 2019).  

     44   Id. at 390.  

     45   Lewis v. State , 356 P.3d 795, 800 (Alaska App. 2015).  

     46   Id.  

     47    Coon, 974 P.2d at 395 (citing Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579,  


593-94 (1993)); cf. State v. Aleman, 194 P.3d 110, 117-20 (N.M. App. 2008) (discussing  


each of these factors in the context of admitting evidence of the DRE protocol under the  


Daubert standard).  

                                                              -  14 -                                                         2692

----------------------- Page 15-----------------------

                            Here, the trial court did not address any of these factors, nor did it hold the                                                                       

State to its burden of establishing the scientific validity of the DRE protocol.                                                                                      Instead,  

the   court concluded                         that identifying                   Wertanen   as an "evaluator," rather                                           than   as  an  

"expert," and framing his conclusion as a "suspicion," rather than an "opinion," obviated                                                                             

the need for any judicial determination regarding the reliability and relevance of the                                                                                           

trooper's proposed testimony.                                   48  


                            Regardless  of the nomenclature attached  to  Wertanen's testimony,  the  


underlying principles were the same, and as explained above, those principles were  



"'derived  by  the  scientific  method.'"                                                 Accordingly,  the  trial  court  had  "both  the  


authority and the responsibility" to determine whether the proposed DRE evidence  



satisfied the Daubert/Coon standard.                                                Its failure to do so was error.  


               Thetrial court alsoerredin excludingBragaw's proposed experttestimony  


              critiquing the DRE protocol  


                            The trial court also made a second, related error that compounded the first.  


After  Wertanen's  testimony  about  the  DRE  protocol,  Bragaw's  attorney  sought  to  


present her own expert witness's critiques of the DRE.  Bragaw's expert would have  


opined that the DRE protocol was neither medically nor scientifically valid, and that the  


DRE observations did not support any  conclusion about Bragaw's ingestion  of, or  


impairment by, a controlled substance.  

       48     Cf. State v. Baity, 991 P.2d 1151, 1154 n.1 (Wash. 2000) (noting that it is "improper"  

for a court or the parties to refer to an officer with a DRE certification as an "expert" unless  

the officer is properly qualified as an expert under Evidence Rule 702).  

       49     Marron v. Stromstad , 123 P.3d 992, 1004 (Alaska 2005) (quoting Daubert, 509 U.S.  

at 590.)  

       50     Coon, 974 P.2d at 393.  

                                                                                      -  15 -                                                                                 2692

----------------------- Page 16-----------------------

                             The   trial   court   expressed   doubts   that   Bragaw's   expert   possessed   the  

necessary qualifications to offer an opinion on this issue.                                                                 But, the court ultimately did                         

not  resolve whether                           Bragaw's expert was qualified.                                          Instead,   it concluded                          that   the  

reliability   of   the   DRE   protocol   was   not   an   issue   before   the   court.     In   seeming  

 contradiction to the earlier ruling that the DRE protocol was not scientific evidence, the                                                                                        

 court reasoned that the expert's critiques of the protocol were themselves scientific.                                                                                                    

According to the court, Bragaw therefore could not present this testimony without first                                                                                          

 establishing its scientific validity under                                          Daubert/Coon .  

                             A defendant is                    always entitled                    to   challenge the validity                             of the         State's  


 evidence of guilt.                                                                                                                                                               

                                           Even when a trial court finds that evidence is admissible, "it is the  



jury's task to determine the ultimate weight or credibility of the evidence."                                                                                           Thus, a  


 court's preliminary determination of admissibility does not foreclose either party from  


 subsequently arguing the reliability and trustworthiness of the evidence to the jury: "[i]f  


the judge rules that the evidence is admissible, the party who opposed the admission of  


the evidence is still free to argue to the jury that the evidence is unreliable or  not  



                           Especially when the State relies on scientific evidence, a trial court abuses  



                                                                                                                                                               Because the  

 its discretion when its rulings insulate the State's evidence from critique. 

        51     Cf. Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) ("Although it is not absolute,  

 a defendant's right to present a defense is a fundamental element of due process." (footnote  



        52    Augustine v. State , 355 P.3d 573, 581 (Alaska App. 2015).  

        53    Id.  

        54     See Skamarocius v. State, 731 P.2d 63, 65-66 (Alaska App. 1987) (concluding that a  


trial court abuses its discretion in excluding expert testimony "when the reasons for the  


 exercise of discretion are clearly untenable or unreasonable").  

                                                                                      -  16 -                                                                                  2692

----------------------- Page 17-----------------------

exclusion of any critique of the DRE protocol deprived Bragaw of "a fair opportunity to                                                                          

flesh out [her] defense," the trial court's ruling was error.                                                55  


             The errors were not harmless  


                         The State argues that any error in admitting testimony regarding the DRE  



protocol  was  harmless.                                                                                                                                      

                                                      According  to  the  State,  Wertanen  testified  only  to  his  


suspicions about the drugs Bragaw had ingested, rather than to an opinion about her  


impairment. Bragaw's ingestion of controlled substances was uncontested at trial: both  


her own admissions and the crime lab report confirmed her consumption of Librium.  


Therefore,  the  State  argues,  Wertanen's  testimony  that  the  DRE  protocol  likewise  


corroborated Bragaw's consumption of a controlled substance did not appreciably affect  


the jury's verdict.  


                         It is true that, although the State filed a notice before trial indicating that  


Wertanen would offer an opinion that Bragaw "was too impaired to safely operate a  


motor vehicle" and that her impairment "was caused by drugs," the trooper's testimony  



at trial was more modest.                                However, the record shows that Wertanen's testimony  

      55     Shepard v. State, 847 P.2d 75, 83 (Alaska App. 1993).  

      56     See  Love   v.   State,  457  P.2d  622,  631  (Alaska  1969)  (explaining  that  erroneous  

evidentiary rulings are harmless when a reviewing court can fairly say the error did not                                              

appreciably affect the verdict).  

      57     Although Wertanen did at one point admit that he had previously testified before the  


grand jury as to his opinion that Bragaw was impaired, he did so only in response to a leading  


question from Bragaw's attorney during cross-examination. Neither the trooper nor the State  


ever attempted to directly correlate the DRE results with any particular level of impairment.  


Cf. State v. Wilson, 337 P.3d 948, 955 (Or. App. 2014) (concluding that a defendant "cannot  

retroactively render the officer's opinion inadmissible by himself eliciting information from  



                                                                            -  17 -                                                                        2692

----------------------- Page 18-----------------------

repeatedly implied that Bragaw was impaired by central nervous system stimulants and                                                                                                                                                                                                                                                                                                                                                 

depressants.    For example, Wertanen explained that the drug recognition evaluation                                                                                                                                                                                                                                                                                                             

course taught himtheobservablesigns                                                                                                                                                              inpeopleimpairedby various                                                                                                                           categories of drugs.                                                                                 

He also told the jury that, based on the arresting officer's observations and Bragaw's                                                                                                                                                                                                                                                                                                                

breath   alcohol   level,   he   started   to   think   that   she   was  impaired   by   drugs   or   by   a  

combination of drugs and alcohol.                                                                                                                                                After explaining that only about ten percent of law                                                                                                                                          

 enforcement officers in Alaska have a DRE certification, Wertanen told the jury that it                                                                                                                                                                                                                                                                                                                                                        

was his job to conduct a drug recognition evaluation to determine whether a suspect is                                                                                                                                                                                                                                                                                                                                                         

impaired by different categories of drugs.                                                                                                                                                                               He also told the jury that a DRE evaluator                                                                                                                                    

 forms an opinion of what drug the suspect has ingested or is impaired by.                                                                                                                                                                                                                                                                                                                        Wertanen  

repeatedly used the terms "impaired" or "impairment" when describing the protocol and                                                                                                                                                                                                                                                                                                                                                

what it is designed to test.                                                                                  

                                                                    We   believe   this   is   significant   to   the   question   of   harmlessness   when  

considered in light of two other factors.                                                                                                                                                                     First, Wertanen's testimony occupied over a                                                                                                                                                                                        

third of the trial and included three separate discussions of the DRE protocol:                                                                                                                                                                                                                                                                                                                          an initial   

 explanation of the DRE protocol in general; a tailored explanation of how Bragaw                                                                                                                                                                                                                                                                                                                             

performed on each step; and then an audio recording of Bragaw's performance during                                                                                                                                                                                              

the DRE. As the prosecutor noted in his closing argument, the jurors "heard a lot" about                                                                                                                                                                                                                                                                                                                                    

the DRE.                                           

                                                                     Second, the centrality of the DREevidenceto thepresentation                                                                                                                                                                                                                                                       oftheState's                   

case created a substantial likelihood that the jury would perceive the validity of the                                                                                                                                                                                                                                                                                                                                                

individual portions of Wertanen's testimony - including even the purely observational                                                                                                                                                                                                                                                                                              

portions - as enhanced by the scientific aura surrounding the DRE protocol as a whole.                                                                                                                                                                                                                                                                                                                          

                 57               (...continued)  

the officer on cross-examination that he now claims added a scientific flavor to the officer's  


testimony") (internal quotation omitted).    

                                                                                                                                                                                                              -  18 -                                                                                                                                                                                                              2692

----------------------- Page 19-----------------------

And although Bragaw was prepared to challenge the validity of the DRE protocol itself,                                                                              

both at a         Daubert  hearing and at trial by presenting her expert's opinion, the trial court                                                                  

did not permit this.                    We therefore cannot fairly say that the DRE protocol evidence did                                                                

not appreciably affect the jury's verdict.                                       58  


                           We  acknowledge  that  the  limitations  on  the  way  that  Wertanen  was  


permitted to describe his opinion distinguishes this case, to some degree, from a typical  


case where an officer expressly testifies to their expert opinion that a defendant was  



impaired by drugs.                        We also recognize that Wertanen was not the only witness to testify  


about Bragaw's demeanor and consumption of a depressant, and much of his testimony  


was corroborated by, and at times duplicative of, testimony provided by Tennis and the  


crime lab expert.  


                           Nonetheless,  we  cannot  find  harmless  the  trial  court's  twin  errors  of  


allowing the presentation of scientific evidence without proof of its validity and then  


prohibiting Bragaw from challenging that validity.  

       58    See Love, 457 P.2d at 632.  

       59    See, e.g., State v. Aleman, 194 P.3d 110, 112 (N.M. App. 2008) (noting that the DRE  


serves  two  primary purposes:                                 to  help  officers  identify impairment,  and  to  identify the  


category of drugs that has caused the impairment); cf. Baker v. State, 2016 WL 7422695, at  

*3-4 (Alaska App. Dec. 21, 2016) (unpublished) (describing the DRE protocol as a "battery  


of twelve tests [that] purports to indicate the presence of drugs in the subject's body," but  


discussing  the  protocol  in  the  context  of  an  officer's  opinion  that  the  defendant  was  


impaired);  Theriot  v.  State,  2015  WL  4599593,  at  *2-3  (Alaska  App.  July  29,  2015)  


(unpublished) (describing a "drug recognition expert" as "a police officer who had undergone  


special training to recognize the symptoms attributable to various categories of drugs, and  


then  to  diagnose  what  types  of  drugs  a  person  has  ingested,  based  on  those  observed  


symptoms,"  within  the  context  of  an  officer's  opinion  that  the  defendant's  level  of  

impairment was attributable to "untestable controlled substances" as well as marijuana).  

                                                                                 -  19 -                                                                              2692

----------------------- Page 20-----------------------


                   For  the  reasons  explained  in  this  opinion,  we  REVERSE  Bragaw's  


conviction for felony driving under the influence and REMAND for a new trial.  Prior  


to allowing the State to present evidence regarding the DRE protocol, the trial court must  


determine whether the DRE meets the standard for admissibility of scientific evidence  


under Daubert/Coon .  


                                                           - 20 -                                                       2692

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