Opinion
No. K1-2017-0564A
02-17-2020
STATE OF RHODE ISLAND v. MARSHALL HOWARD, Alias John Doe
ATTORNEYS: For Plaintiff: John E. Corrigan, Esq. For Defendant: Kelsey E. McDonald, Esq. Joseph Dwyer, Jr., Esq.
DECISION PROCACCINI , J. In 2017, there were twenty-one pedestrian fatalities on the public roads and highways in the State of Rhode Island.
U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts, 2017 Data, DOT HS 812 681, March 2019.
One of those pedestrians was a City of Warwick resident, David Bustin (Mr. Bustin), who was struck by a motor vehicle driven by Defendant Marshall Howard (the Defendant), as he was crossing the street in front of his house. The collision occurred on May 23, 2017 at approximately 10:00 p.m. on Main Avenue in the City of Warwick.
Following an investigation by the Warwick Police Department and presentment of this matter to a grand jury, an indictment was returned charging the Defendant with three offenses: operating a motor vehicle while under the influence of a controlled substance, to wit, marijuana, with the death of Mr. Bustin ensuing as a proximate result of an injury received by such operation of the motor vehicle in violation of G.L. 1956 § 31-27-2.2; possession of a controlled substance, to wit, fentanyl, in violation of G.L. 1956 § 21-28-4.01(c)(2)(i); and possession of a controlled substance, to wit, heroin, in violation of § 21-28-4.01(c)(2)(i).
Prior to commencement of this trial, the Defendant waived his right to a trial by jury. During this bench trial, the State presented eleven witnesses which included police officers, toxicologists, a forensic scientist and a crash reconstructionist.
I
Facts and Travel
The first police officer to arrive at the scene of this motor vehicle/pedestrian collision was Officer Quentin Tavares of the Warwick Police Department. He arrived at the scene on Main Avenue shortly after 10:00 p.m. A "male" waived him down as he approached the area. He observed another "male" in a "grassy area" to the side of the road who he described as bleeding from the mouth and unconscious. He identified the Defendant as the male who waived him down. When Officer Tavares approached the Defendant, a short conversation ensued during which the Defendant stated he "did not see anybody" before striking the pedestrian who was later identified as Mr. Bustin. Officer Tavares described Defendant's manner of speaking at that time as "slow" and his demeanor as "mellow."
The next officer to arrive on scene was Officer Derek Mourato who was assigned to the Warwick Police Department's traffic unit. Officer Mourato's training included the standard Rhode Island Municipal Police Academy one-week course on field sobriety testing and several years later the Advanced Roadside Impairment Detection Enforcement (ARIDE) course which enhances standard field sobriety testing methods and "touches on" impairment with drugs.
Officer Mourato arrived at the scene shortly after 10:00 p.m. When he arrived, Warwick Fire Department Rescue personnel were also on scene. Officer Mourato immediately commenced an investigation of the scene of the collision. He observed the Defendant standing on the sidewalk. Officer Mourato asked the Defendant what happened. The Defendant responded he was coming from his place of employment and headed home when Mr. Bustin "ran out in front of him." Following the collision, the Defendant pulled his vehicle into a driveway "about 100 feet east" of the scene. Officer Mourato and the Defendant engaged in further conversation during which the Defendant estimated his speed to be 35 to 45 miles per hour and that Mr. Bustin "ran out in front of him and crashed against the windshield."
During these conversations at the scene, Office Mourato described the Defendant as "very calm" and his manner of speaking was "very slow," "very low" and "raspy." Also, during both direct and cross-examination, Officer Mourato conceded that no odor of alcohol or marijuana was detected as coming from the Defendant during these conversations at the scene.
Officer Mourato then decided, without being ordered or directed by any superior officer, to conduct a roadside field sobriety test of the Defendant notwithstanding the fact that Officer Aaron Kay, a certified Drug Recognition Evaluator (DRE), was on duty and arrived on the scene at approximately 10:30 p.m.
Officer Mourato walked the Defendant twenty to thirty feet from where Mr. Bustin was lying on the grass. On a flat area of sidewalk, the standard three-part field sobriety test, that is the Horizontal Gaze Nystogmus test, the walk and turn test, and the one-leg stand test, was administered. Officer Mourato testified that the Defendant showed no clues indicative of impairment on the Horizontal Gaze Nystagmus test, three clues on the walk and turn test, and one clue on the one-leg stand test. He also stated the test on which the Defendant showed the most clues indicating impairment—the walk and turn—there is a "79 percent chance of probability that two or more clues . . . show impairment."
Based upon his test results and on-scene observations, Officer Mourato found that the Defendant's performance supported the conclusion that he "was impaired." The Defendant was then "secured" in the rear of a police cruiser to await further testing from "a drug recognition expert" from the Warwick Police Department, Officer Aaron Kay. Prior to the Defendant being placed in the cruiser, Officer Mourato conducted "a search of his person just to ensure there were no weapons on him." During this protective search, Officer Mourato found "a small, what appeared to be Dunkin Donuts straw, orange, cut in half in his pocket." He also "observed that there was a powdery substance on the inside of the straw" and "it was slightly burned at the tip."
Several other Warwick Police officers assisted at the scene. Sergeant Matthew Barlow was dispatched to manage what he described as a "serious collision" and to assist fellow officers in the investigation. While surveying the exterior of the Defendant's vehicle, he noted scuff marks on the right side of the front bumper, right front fender damage, and passenger side windshield and wiper blade damage that he described as "blunt puncture" to glass consistent with striking an object or person.
Patrol Officer Jacob Elderkin assisted with an inventory search of the Defendant's vehicle prior to it being transported from the scene. While searching the center console area, he observed a mason jar containing a green leafy substance in a plastic bag, which he suspected was marijuana. His suspicion was confirmed with a field test of the substance.
The State's primary police witness as to whether the Defendant was operating a motor vehicle while impaired by alcohol or drugs was Officer Aaron Kay. His testimony was lengthy and contained a detailed review of the education and training required to obtain his certification as a DRE. Officer Kay described the DRE protocol as "a systematic standardized process for identifying drug influence and impairment." There are seven categories of impairing substances DREs are trained to detect: central nervous system depressants, central nervous system stimulants, hallucinogens, dissociative anesthetics, narcotic analgesics, inhalants, and cannabis.
Officer Kay described a twelve-step process that is used to determine whether an individual is under the influence of one of these impairing substances. First, an alcohol breath test is performed to determine if the individual has consumed alcohol. Second, the first or arresting officer is interviewed. Third, a preliminary examination of the individual's eyes is performed along with a first pulse check. Fourth, the Horizontal Gaze Nystagmus test is performed. Fifth, the divided attention tests are performed, which include the walk and turn and one-leg stand tests. Sixth, there is a vital signs check that includes a second check of pulse and blood pressure and body temperature checks. Seventh, a darkroom examination of the eye's pupils is performed. Eighth, an assessment is made of the individual's muscle tone. Ninth, the individual's body is checked for injection sites. Tenth, a third pulse check is performed. Eleventh, an interview of the individual is conducted. The twelfth and final step is to then obtain a toxicological analysis of the individual's blood.
Turning to Officer Kay's specific findings and conclusion as to whether the Defendant was impaired by drugs or alcohol at the time of this collision, his first finding was that no alcohol was detected when the portable breath test was administered to the Defendant. He next spoke to Officer Mourato who advised him of his field sobriety test results and his observations that the Defendant had "slow speech, delayed response to questions," and "his pupils were constricted."
Officer Kay's next interaction with the Defendant was to subject him to a second round of field sobriety tests. Because of the congestion of police vehicles and officers on Main Avenue, Officer Kay sought out a quieter area on Greenfield Avenue for his tests. In preparing for these tests, it was observed that the Defendant had "slow speech" and "delayed responses." He also noted that the Defendant's "eyelids were droopy," his eyes were "noticeably constricted," and he had "dry cotton mouth."
Officer Kay's findings related to the Defendant's performance on this second set of field sobriety tests were at odds with Office Mourato's findings on two of the three tests. Officer Kay and Officer Mourato agreed that there were no clues or signs of impairment during the Horizontal Gaze Nystagmus test. On the walk and turn test, Officer Kay observed five clues out of a possible eight clues, when minutes earlier Officer Mourato observed three, and on the one-leg stand, he exhibited four clues out of a possible four clues, where minutes earlier Officer Mourato had observed one.
The next test Officer Kay administered was the lack of convergence test which he believed would "narrow down" what category of drug was involved. This test was not helpful as the Defendant's eyes did converge on two occasions.
Officer Kay then moved to the Romberg balance test where the Defendant scored in the "normal" range for that test.
Officer Kay then decided to not perform any further DRE testing of the Defendant at the scene. At this point in his evaluation of the Defendant, he had concluded that "he was unfit to safely operate a motor vehicle as he was under the influence" and "secured him in handcuffs."
The Defendant was secured in a police cruiser and advised of his Miranda rights. Officer Kay then engaged the Defendant in conversation during which he stated he had smoked marijuana earlier in the evening prior to going to work at Pam's Pizza at approximately 4:30 p.m. The Defendant also denied doing any other drugs that evening. Officer Kay presented the Defendant with a request for a blood test which he consented to and shortly thereafter submitted to having his blood drawn at Kent County Hospital.
Following the drawing of the Defendant's blood at the hospital, he was taken to Warwick Police headquarters where Officer Kay decided to administer the DRE protocol to the Defendant a second time and in a more complete fashion. Also during this time, Officer Kay continued to engage the Defendant in conversation, during which the Defendant stated he had smoked fentanyl earlier that evening, which contradicted his earlier denial of any other drug use except marijuana. Officer Kay completed the twelve-step DRE protocol at 1:30 a.m., approximately three to three-and-a-half hours after the collision.
Based upon Officer Kay's education, training and experience, his partial DRE evaluation at the scene, and his more complete DRE evaluation at headquarters, he expressed an opinion to a reasonable degree of scientific certainty that the Defendant was under the influence of a narcotic analgesic at the time of this collision.
The State presented the testimony of assistant medical examiner Dr. Ariel Goldschmidt who works in the Rhode Island State Medical Examiner's Office. Dr. Goldschmidt performed Mr. Bustin's autopsy which included toxicological analysis of his blood. This blood test revealed the presence of alcohol in Mr. Bustin's blood at a level of 136 milligrams per deciliter or .136 at the time of his death. Dr. Goldschmidt also acknowledged that alcohol is a central nervous system depressant that can cause the human body to experience disorientation, physical dexterity and coordination issues, and impairment of brain function and judgment.
Two toxicologists also testified in the State's case. Regina Coffey is a forensic scientist employed in the Rhode Island Department of Health's Forensic Toxicology Unit for the past ten years. Laurie Ogilvie is a supervisor in the Department of Health's forensic toxicology laboratory with thirty-two years of experience.
The Warwick Police Department submitted the Defendant's blood to Ms. Coffey for toxicological analysis. The State laboratory screens blood samples for the presence of sixteen classes of drugs. The testing of the Defendant's blood revealed that fifteen of the sixteen drugs tested for were below the detection limit. The only drug above the detection limit was cannabinoids.
This blood sample was drawn at Kent County Hospital one-and-a-half to two hours after this collision.
Cannabinoids is a term used to describe the chemical compounds found in cannabis or marijuana.
Ms. Coffey was asked to explain how the presence of cannabinoids effects a person's bodily functions and motor skills. She stated that she was unable to provide an answer because "every individual is different." When pressed further, she replied, "Drugs are a very complicated subject in that it's a very subjective thing. You can't objectively say from person to person that a drug is going to behave or break down in the same manner. So a level doesn't matter, and it varies from person to person how long potentially a drug can break down in a person's system. So it's just too complicated, and there's too many variables."
The State also asked Ms. Coffey to explain why there is no quantitative analysis, number or level provided in drugs screens beyond mere presence as there are in alcohol screens. She offered:
"Alcohol is a much simpler compound. Throughout the last 40 plus years, there have been many studies done on the federal level and state levels as to how alcohol affects a person. And it doesn't matter, male, female, how tall they are, what size they are. And it's been determined that at point 08 percent, out there, federally speaking, is you're going to be generally drunk and impaired at that level. Regardless of the effects seen.
"With drugs, and all drugs, not just cannabinoids, they are a much more complicated compound across the board. And again, it's very subjective. So from person to person, the dose matters, sex matters. And there are so many variables. Routes of administration. So there's too many variabilities with that and there aren't enough studies out there yet."
Later in the examination of Ms. Coffey, the focus returned to whether there is a correlation between drug levels and impairment. Ms. Coffey was asked if there was a number or quantitative analysis available for controlled substances could she—as a forensic toxicologist—describe the effects a particular drug would have on an individual. Once again, Ms. Coffey declined the State's invitation, stating, "Just again that the drugs are - - it's just a more complicated and subjective thing as far as to how much the person has taken and the routes of administration; their tolerance level, if a person is new to taking a certain drug, they may behave completely differently and metabolize it differently than somebody who takes a drug every day and their tolerance level is high."
During cross-examination, Ms. Coffey was asked specifically about studies of marijuana use and driving impairment. She acknowledged "there are studies out there, but I don't think the forensic toxicology community will ever go to a number . . . there will never be a quantification of a drug."
The second toxicologist presented by the State was Laurie Ogilvie, the supervisor of the Rhode Island Department of Health's forensic toxicology laboratory.
Ms. Ogilvie provided additional insight and justification for her laboratory's testing process in driving under the influence (DUI) cases involving controlled substances. She stated that her laboratory performs a qualitative analysis of a blood sample. A qualitative analysis is designed to detect the presence or absence of a controlled substance. Her justification in utilizing this approach is that it is "in accordance with state statute," "in accordance with the Society of Forensic Toxicology and the Department of Justice."
When asked to explain the usefulness of a qualitative report of the presence of a controlled substance in blood, she explained that "for suspected impaired drivers we report qualitative results because there is no correlation between a quantitative result and a level of impairment in an individual."
Ms. Ogilvie then explained the science behind her statement that there is no correlation between a quantitative result and impairment, stating, "And this is unlike ethanol where quantitative results have meaning. But for drug analysis, the quantitations really have no bearing on impairment . . . Because individuals metabolize drugs differently. They have different effects with drugs maybe. But there is no correlation between level of impairment and the quantitative drug present."
The State also offered the testimony of Michael Liberto, a Rhode Island Department of Health principal forensic scientist with expertise in the field of forensic chemistry.
Mr. Liberto conducted an analysis of evidence taken from the Defendant's person and his motor vehicle. He tested a bag of marijuana and a glass bowl which tested positive for the presence of cannabis. He next tested a single straw which tested positive for heroin and fentanyl. His last test was an analysis of substances found in four straws which tested positive for heroin and fentanyl.
The last witness testifying on behalf of the State was Officer Gregory Johnson who has special education and training in the field of crash reconstruction.
Officer Johnson arrived at the scene shortly after 10:40 p.m. He testified that all lanes of travel on Main Avenue in the area of the collision were closed. One of the first questions he attempted to resolve was what side of the road Mr. Bustin was coming from prior to being struck. Officer Johnson learned that Mr. Bustin lived at 648 Main Avenue, which is directly across the street from two businesses, Gigi's Pizza and Sam's Convenience Store. He spoke with Mr. Bustin's roommates who disclosed that they frequently visited the stores across the street and when doing so they would use the front door as a means of egress. Officer Johnson found this information useful in determining the area of impact on Main Avenue.
Officer Johnson noted that there was a crosswalk in front of Mr. Bustin's home and that the walkway leading from the home's front door was seven feet to the east of that crosswalk. He further observed that the front yard area of the home was "unkept" and "overgrown" and that the crosswalk was "not pristine" due to asphalt work that had been performed and the crosswalk markings had not been replaced following this work.
Officer Johnson also examined the Defendant's vehicle as part of his crash reconstruction. He found that his vehicle came to rest between 189 feet to 200 feet from where Mr. Bustin was found. He discovered marks on the vehicle's hood in an area between the "passenger front headlight toward the center of the hood." He believed the hood marks established that Mr. Bustin "traveled across the hood" which caused significant damage to the windshield and windshield arm. Officer Johnson then stated Mr. Bustin "cart-wheeled off the side of the vehicle" causing the passenger door mirror to collapse forward.
Officer Johnson also examined the road surface on Main Avenue. He observed no scuff marks, skid marks, pre-impact braking, or swerve marks. He did find glass headlight fragments at the scene "which confirmed what Mr. Howard told the other officers, that he was traveling in the right lane near the crosswalk when he struck a pedestrian."
Officer Johnson also made observations of the lighting, road configuration, and speed limit in the area of the collision. He described the area as "dimly lit." He also confirmed there were four streetlights in the immediate vicinity. He discovered two of these streetlights were not operational and a third, which was located at the crosswalk, was functioning; however, it was "mounted at a 45 degree angle to the pole" and "the majority of the beam was cast out towards the left travel lane," rather than the right lane Defendant was traveling in.
Officer Johnson described Main Avenue in the area of the collision as "relatively" straight with a speed limit of 35 miles per hour. He described the travel lanes as "narrow," measuring ten feet in width with a one-foot shoulder.
Officer Johnson also calculated the speed of the Defendant's vehicle at impact to be between 26 to 34 miles per hour and further "determined that Mr. Howard had anywhere from 1.1 to 2.4 seconds to proceed and react to Mr. Bustin in the roadway."
On cross-examination, Officer Johnson acknowledged that the sight lines along the sidewalk in front of Mr. Bustin's home were limited by the Greenwood Bridge utility poles, two overgrown spruce trees, and untrimmed shrubbery. He agreed that the Defendant was driving within the speed limit and Mr. Bustin was wearing dark colored clothing. Officer Johnson also agreed that Mr. Bustin had a blood alcohol level of .136 at the time of the collision which, according to his report, resulted in "impaired perception reaction due to alcohol level by the pedestrian," and "he likely did not see Howard's vehicle approaching when he walked between the bushes and the overgrowth of his home." He further testified that Mr. Bustin "was 3 to 5 feet into the roadway and was either stepping or leaning back at the moment he was struck."
II
Standard of Review
According to the United States Constitution, in a criminal trial the State has the burden of proving every element of the charged offense beyond a reasonable doubt. See, e.g., State v. DelBonis, 862 A.2d 760, 765 (R.I. 2004); State v. Hazard, 745 A.2d 748, 751 (R.I. 2000). Accordingly, this Court is aware and mindful of the high threshold required to establish guilt beyond a reasonable doubt. In a jury trial, this Court typically explains the concept as follows:
"[Guilt beyond a reasonable doubt] is a strict and heavy burden. It does not require, however, that a defendant's guilt must be proved beyond all possible doubt. Rather, it requires that evidence exclude any reasonable doubt concerning a defendant's guilt. A reasonable doubt is one that would make a reasonable person hesitate to act in regard to some transaction of importance and seriousness. A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. Reasonable doubt exists when, after weighing and considering all the evidence, using reason and common sense, the jury cannot say that it has a settled conviction of the truth of the charge."Additionally, in ruling on a motion to dismiss in a case tried without a jury, the trial justice "is required to weigh and evaluate the trial evidence, pass upon the credibility of the trial witnesses, and engage in the inferential process, impartially, not being required to view the inferences in favor of the nonmoving party, and against the moving party." State v. McKone, 673 A.2d 1068, 1072-73 (R.I. 1996). After the justice makes such a finding, he or she will conclude whether the evidence is sufficient to establish guilt beyond a reasonable doubt and rule accordingly. See id. at 1073. Moreover, this standard is much different than that required in a motion for acquittal in a jury trial, whether the trial justice is required to view all evidence in the light most favorable to the nonmoving party and against the moving party, drawing all inferences in favor of the nonmoving party without passing on the credibility of their witnesses. See State v. Harnois, 638 A.2d 532, 536 (R.I. 1994); State v. Clark, 603 A.2d 1094, 1097-98 (R.I. 1992); State v. Lamoureux, 573 A.2d 1176, 1180-81 (R.I. 1990).
This Court bears these principles in mind as factfinder in this matter.
III
Analysis
A
Driving Under the Influence, Death Resulting
Count 1 of the indictment charges the Defendant with violating § 31-27-2.2 - Driving under the influence of a controlled substance, to wit marijuana, resulting in death.
Section 31-27-2.2(a) provides:
"(a) When the death of any person other than the operator ensues as a proximate result of an injury received by the operation of any vehicle, the operator of which is under the influence of any intoxicating liquor, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination of these, the person so operating the vehicle shall be guilty of 'driving under the influence of liquor or drugs, resulting in death."'
In State v. Benoit, 650 A.2d 1230 (R.I. 1994), the Rhode Island Supreme Court addressed the two elements of proof that are required to prove the offense of driving under the influence, death resulting. The Supreme Court held that the State must establish that the defendant's manner of operating a motor vehicle was a proximate cause of the death and that the defendant was legally intoxicated at the time of the collision.
In Benoit, the operator of the motor vehicle underwent a blood alcohol test which revealed a blood alcohol level at more than twice the legal limit. In this case, the controlled substance at issue is marijuana.
This Court finds the following facts and circumstances, all of which were credibly established in the record, to be relevant and material in determining whether the Defendant's manner of operating his motor vehicle at approximately 10:00 p.m. on Main Avenue was a proximate cause of Mr. Bustin's death.
The undisputed facts relating to the operation of the Defendant's vehicle just prior to impact establish that he was driving in the right lane of travel on Main Avenue within the speed limit. The area of impact was dimly lit. Mr. Bustin, who was wearing dark clothing, exited the front door of his home and proceeded down the walkway in his front yard toward Main Avenue. The line of sight toward the walkway and sidewalk on Main Avenue was obstructed by telephone poles, overgrown trees and untrimmed shrubs. Mr. Bustin was three to five feet into the road when he was struck seven feet east of a partially marked crosswalk.
The Defendant's vehicle damage is consistent with an impact on the right, passenger's side of the vehicle. The Defendant's post-collision statements to multiple police officers are consistent in that he states that Mr. Bustin ran out in front of his vehicle and he did not see Mr. Bustin prior to impact. The Defendant stopped immediately after the collision, approximately 189 to 200 feet from the scene, called 911, stayed with Mr. Bustin on the roadside and cooperated fully with all law enforcement requests. The evidence also establishes Mr. Bustin had a blood alcohol level of .136 when he exited his home and stepped into the road. This blood alcohol level resulted in impairment in perception and reaction time, physical dexterity, coordination, and judgment.
Based upon the sequence of events just prior to impact and the crash reconstruction performed, the Defendant had 1.1 to 2.4 seconds to react to Mr. Bustin's presence on Main Avenue.
This Court finds no credible evidence of inattentive, distracted, negligent, or reckless operation of a motor vehicle by the Defendant as he approached the area of the collision on Main Avenue. The Defendant's manner of operating his motor vehicle at the time of this collision was not a proximate cause of Mr. Bustin's death. This Court finds that Mr. Bustin's level of intoxication and conduct was an independent, intervening cause.
While this Court's conclusion, that Defendant's manner of operating his motor vehicle was not a proximate cause of Mr. Bustin's death, is dispositive of the DUI - Death Resulting charge, this Court believes it is prudent and necessary to address the second element of proof as well, that is, whether the evidence establishes Defendant was under the influence of marijuana and impaired to operate a motor vehicle.
The State relied upon three witnesses who were offered and qualified as experts in their respective fields: Regina Coffey and Laurie Ogilvie, both forensic scientists, and Officer Aaron Kay, a DRE. This Court is mindful that each witness satisfied the threshold requirements to render expert opinions; however, this Court, as the factfinder, must now determine if their opinions, individually and collectively, are worthy of acceptance on the issues of drug influence and driving impairment in this case.
The testimony of both forensic scientists set clear and unequivocal limits as to what was found in their toxicological analysis of Defendant's blood and what scientifically valid conclusions could be drawn from their analysis. One controlled substance, cannabinoids, was detected out of a possible sixteen detectable substances.
Ms. Coffey explained that "we test for three compounds in the cannabinoids family: THC which is the active parent ingredient of marijuana; and we also look for two metabolites."
Ms. Coffey and Ms. Ogilvie were in agreement that their toxicological analysis of blood is limited to identifying the "presence" of a controlled substance and nothing more. When pressed by the State to correlate their finding of the presence of cannabinoids in Defendant's blood to his bodily functions, motor skills or impairment to operate a motor vehicle, they repeatedly resisted.
Their refusal to speculate as to whether the presence of marijuana in Defendant's blood impaired his ability to operate a motor vehicle was based upon scientifically based concerns, to use their words: "it's very subjective," "there's too many variables" and "there aren't enough studies out there yet."
This Court found the testimony of Ms. Coffey and Ms. Ogilvie to be candid, forthright, thoughtful and credible.
The only State witness who offered testimony that Defendant was both under the influence and impaired to operate a motor vehicle was Officer Aaron Kay.
In evaluating the weight and credibility of Officer Kay's testimony and opinions, several issues arise.
As noted previously, Officer Kay had special education, training, and certification as a DRE.
After interacting with Defendant at the scene, at the hospital, and at the Warwick Police Department, for a period of approximately three hours, Officer Kay's opinion was that Defendant was under the influence of a narcotic analgesic and impaired to operate a motor vehicle. This opinion is in direct conflict with the toxicological blood analysis of the State's two forensic scientists who detected no narcotic analgesics in Defendant's blood.
The drug fentanyl is a narcotic analgesic.
This misidentification of the controlled substance upon which Officer Kay based his conclusions that Defendant was under the influence and impaired to drive is significant. It is well established that "[t]he validity of a DRE officer's opinion regarding a suspect's drug status is determined by comparing the opinion to the results of toxicology analysis. Confirmation can increase the credibility of court testimony by the DRE officer but lack of confirmation can mean that the officer made an error in interpreting the available data."
J.A. Smith et al., Forensic Science International, 130 (2002) at 168, Drug recognition expert evaluations made using limited data, Sept. 20, 2002.
Another issue of concern is the inconsistent results in the two field sobriety tests that were administered to Defendant at the scene within minutes of each other shortly after the collision.
The first field sobriety tests (FSTs) were administered by Officer Mourato followed by a second set of tests by Officer Kay. While Officer Kay attempted to explain that the discrepancies in two of the three tests were attributable to his higher level of training as a DRE, it was clear that both officers were well trained and experienced in administering these FSTs. Surprisingly, the Defendant was found to be "impaired" by both officers notwithstanding their inconsistent test results. In this Court's review, the inconsistent results obtained by two similarly trained police officers within minutes of each other are indicative of the subjectivity associated with how these tests are administered and interpreted by officers in cases involving suspected drug use.
In our neighboring state, Massachusetts, the Massachusetts Supreme Judicial Court has held that an officer's testimony relating to field sobriety tests in operating under the influence of marijuana cases must be limited as "there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication." Commonwealth v. Gerhardt, 81 N.E.3d 751, 754 (Mass. 2017). The Supreme Judicial Court further observed that "FSTs do not directly test marijuana impairment. The FSTs are a means of evaluating a defendant's balance, coordination, and other skills specific to that test," id. at 760, and further held "[a] police officer may not suggest, however, on direct examination that an individual's performance on an FST established that the individual was under the influence of marijuana." Id. at 759.
This Court acknowledges that Officer Kay has received significant additional training beyond the standard municipal police academy and ARIDE courses that most patrol officers have taken. Notwithstanding this additional education and training, this Court finds the twelve-step DRE protocol places police officers directly at the intersection of forensic science and medicine and has resulted in officers reaching conclusions regarding the effects of controlled substances, including marijuana, that those in science and medicine refuse to make.
In an enlightening and informative case, State of Maryland v. Consolidated Cases, 2012 Md. Cir. Ct. LEXIS 1 (Mar. 5, 2012), that Court states: "Although the DRE program is utilized in 45 states, the presence of the DRE program does not equate to widespread judicial acceptance by appellate courts nor acceptance in the medical community." Id. at *4.
In addressing whether to exclude the DRE protocol and a DRE's expert opinion, the Court found the DRE program was "not generally accepted as valid and reliable in the relevant scientific community which includes pharmacologists, neurologists, opthamologists [sic], toxicologists, behavioral research psychologists, forensic specialists and medical doctors." Id. at *39-40.
The Maryland court heard testimony from nine expert witnesses including three medical experts who highlighted various shortcomings in the DRE protocol.
Dr. Francis Gengo, a clinical pharmacologist, testified that "the DRE makes largely subjective observations;" "the DRE technician . . . is not in a position to appreciate other diseases much less diagnose their presence and would have to exercise medical and pharmacologic judgment to do so;"and "the data has spoken for itself that [the DRE protocol] cannot reliably discern impairment from non-impairment and cannot reliably identify the medication allegedly causing the impairment." Id. at 15-16.
Dr. Gengo's qualifications include a post-doctoral fellowship in pharmacokinetics and pharmacodynamics, Associate Professor of Pharmacy and Associate Professor of Neurology in the School of Medicine at SUNY Buffalo, and he has authored sixty-five peer-reviewed articles with three specifically in the area of impaired driving.
Dr. Neal Adams offered testimony in this case as an expert ophthalmologist. He stated that "he doesn't agree with the DRE protocol in the way it is being used;" that it "doesn't tell us relative weights of what is more important" and described the process as "almost a robotic matrix." Id. at 18. Dr. Adams further reasoned "there is an element of judgment that we as physicians would incorporate to assist us. And that is not present" in this matrix. Id.
Dr. Adams' qualifications included training at the Johns Hopkins University Wilmer Eye Institute. He holds a medical degree from Johns Hopkins University and held the position of Division Chief of Visual Physiology and Director of the Retinal Eye Institute at Wilmer Eye Institute.
Lastly, Dr. Jeffrey Janofsky testified as an expert in psychiatry. He stated that "the [DRE] 12-step protocol and matrix is not a diagnostic test or a standardized protocol because it requires clinical medical judgment." Id. at 22. He then elaborated further: "when you design a protocol for a non-professional, it's very important that it be standardized in a way that can be done the same way over and over again that's reliable." Id. at 22-23. Dr. Janofsky unequivocally stated that the DRE matrix is not "accepted" in the scientific and medical communities and the "totality of the circumstances approach the DRE uses in reaching an opinion is absolutely a new and novel application that is not accepted in the medical community." Id. at 25.
Dr. Janofsky's qualifications include the position of associate professor of psychiatry at Johns Hopkins University School of Medicine. He is also an educator at The University of Maryland and the Maryland Judiciary and is co-director for the Pre-Trial Mental Health Screening Program for the District Court. He has authored twenty-four peer-reviewed scientific journal articles.
This Court is constrained to conclude that the DRE protocol administered to the Defendant required an application of knowledge, experience, and judgment in the fields of science and medicine beyond what is presently included in a police officer's DRE certification. This Court will not accept an opinion that incorrectly identified the controlled substance in Defendant's blood; that simply ignored the inconsistent and more favorable FSTs of another officer who tested Defendant minutes before; that was formed after the twelve-step protocol was administered in a piecemeal fashion in two distinctly different locations—at the scene and at police headquarters—over a three hour period; and where according to the State's own forensic scientists, the presence of marijuana in Defendant's blood could not be quantified or correlated to impairment to operate a motor vehicle.
Therefore, based upon a careful and thorough review of the DRE protocol administered by Officer Kay to the Defendant, this Court concludes that his findings and opinions that Defendant was under the influence and impaired to operate a motor vehicle are not sufficiently accurate, reliable, and trustworthy, and further, are at least partially based upon findings that require an application of scientific knowledge and medical judgment beyond that received in advanced drug recognition training.
The State has not proven, beyond a reasonable doubt, either element of the charge of Driving Under the Influence of Marijuana—Death Resulting. Defendant's motion to dismiss this charge is granted.
B
Possession of Fentanyl
Possession of Heroin
The evidence related to the two remaining charges, possession of fentanyl and possession of heroin is virtually unchallenged in the record. These controlled substances were found on four straws which contained fentanyl and heroin residue which were discovered pursuant to a protective search of Defendant at the scene and a subsequent inventory search of his motor vehicle by the Warwick Police Department.
The residue from these straws was analyzed by Michael Liberto, a Rhode Island Department of Health forensic scientist and chemist, who testified each straw tested positive for fentanyl and heroin.
Based upon this uncontradicted evidence, this Court finds Defendant guilty as to both possession charges.
IV
Conclusion
As to the three charges filed against the Defendant, this Court finds: As to Count 1—driving under the influence of marijuana, death resulting—this charge shall be dismissed; and as to Counts 2 and 3— possession of fentanyl and heroin—guilty findings shall enter on each count.
ATTORNEYS:
For Plaintiff:
John E. Corrigan, Esq.
For Defendant:
Kelsey E. McDonald, Esq. Joseph Dwyer, Jr., Esq.