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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

                                                    NOTICE
  

         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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JANICE ELAINE BRAGAW,  

                                                                    Court of Appeals No. A-12854  

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



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                    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,  

                                                 

                  Judges.  



                  Judge HARBISON.  


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

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



                                          1  

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  



                                                                                                                                    2  

                                                                                                                                       

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-----------------------

                          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                                                                                                                                       



impairment.    



                                   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                                                                                                                             



                                               5  

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,  



                                     

inadmissible.  



                                                                                                                                                                                                                       

                                   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  



                                                                                                    8  

                                                                               

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  



                                                                                                                                                 9  

                                                                                                                                                                                                      

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



                                                                                                                                                                                         

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



                                                                                                                                  10  

                                                                                                                

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  

                                                                                                                                                                                  (continued...)  



                                                                                                   -  6 -                                                                                             2692
  


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

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



                                                       11  

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  



                                                                                         12  

                                                                                                                                     

                                                                                             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  



                                                                                             13  

                                                                          

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                                                         



                                                                                                                             14  

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  



                                                                                                                      15  

                                                                                                                          

                                                                                                      

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  



                 16  

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 - 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 -  



                                                                                                                       17  

                                                                                                          

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  

            standard  



                       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                                               



                           18  

facts in issue."                                                                                                                            

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



                   19  

testimony.                                                                                                                             

                         When  a  party  seeks  to  present  expert  testimony  relating  to  scientific  



                                                                                                               20  

                                                                                                                                                    

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  



                           21  

Daubert/Coon .                                                                                                                                   

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



                                                                                                                                               22  

                                                                                                                                      

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  



                                                                                                                                               23 

                                                                                                                      

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                                                               



                                                                                              24  

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  



                                     25  

                                         

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  



                                                                                                                                  26  

                                                                                                                                                      

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  



                                             27  

                                                  

training and experience. 



                                                                                                                                                         

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



                                                                                                                     28  

                                                                                                     

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                                                                          



                                          29  

                                                                                                                                                                       

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  



                                                                                                                          30  

                                                                                                                                              

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  



                     31  

protocol."                                                                                                                                                             

                         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  



                                         32  

                                                                                                                                                                            

                                              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  



                                                                          33  

                                                                                                                                                              

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                                                                 

whole."34  



                                                                                                                                             

                        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  



                                                                             35  

                                                            

did not render the protocol itself scientific. 



                                                                                                                                                       

                        We agree with the reasoning of those courts that have concluded that the  



                                                                                             36  

                                                                                                                                                       

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  



                                                                                                                                                 37  

                                                                                                                                 

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,  



                                                                                                                                                         38  

                                                                                                                                                              

                                                                                                                                     

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  



                        40  

                                                                                                                                            

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  



                                                                                         41  

                                                                                               

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  



                                                                                                                                        42  

                                                                                                                                            But  

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  

                                                                                                                                and  



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  

                                                                                                                          



factors:  

               



                     (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  



                                                                                  49  

                                                                                                                                                                                 

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



                                                                                                                                                                    

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



                                                                              50  

                                                                                                                                      

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  



                                      51  

 evidence of guilt.                                                                                                                                                               

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



                                                                                                                                                                  52  

                                                                                                                                                                                      

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  



                     53  

 credible."                                                                                                                                                                

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



                                                                                                                                                         54  

                                                                                                                                                                                   

                                                                                                                                                               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  

                                                                                                                                          

 omitted)).  



        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  



                                              56  

                            

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  



                                                  57  

                                                                                                                                                 

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  

                                                                                                                      

                                                                                                                                            (continued...)  



                                                                            -  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  



                                     59  

                                                                                                                                                                   

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-----------------------

          Conclusion  



                   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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