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| Field sobriety exercises are inadmissible in this case unless the State of Florida demonstrates their reliability to the Court in a Daubert hearing. The State must show that field sobriety exercises were created using the same rigorous scientific method that is behind every theorem and postulate in science journals before field sobriety exercises can be admitted. |
Summary of the Field Sobriety Exercises Ruling:
Field sobriety exercises are inadmissible in this case unless the State of Florida demonstrates their reliability to the Court in a Daubert hearing. The State must show that field sobriety exercises were created using the same rigorous scientific method that is behind every theorem and postulate in science journals before field sobriety exercises can be admitted.
Complete Text of the Motion to Exclude Field Sobriety Exercises
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE FIELD SOBRIETY EXERCISES FROM TRIAL
Law enforcement, charged with maintaining the safety of our streets, rely on their common sense and observations when determining whether probable cause exists to arrest an impaired driver. However, there are limits to those observations when those same officers must testify in a criminal trial when a Defendant’s liberty is at stake. Permitting law enforcement to give an opinion or inference about whether a particular Defendant is impaired is inappropriate absent proper foundation.
In the last few years, Florida’s evidentiary framework has fundamentally changed and there are more stringent requirements on the admissibility of opinion testimony. Perez v. Bell South Communications, 138 So. 3d 492 (Fla. 3d DCA 2014); see also Booker v. Sumter County Sheriff’s Office/N. Am. Risk Services, 166 So. 3d 189, 193 (Fla. 1st DCA 2015); Giaimo v. Florida Autosport, Inc., 154 So. 3d 385 (Fla. 1st DCA 2014); Pardo v. State, 596 So. 2d 665 (Fla. 1992); Daubert v. Merrell Dow Pharmaceutials, Inc., 509 U.S. 579 (1993); and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). If the State of Florida wants to elicit testimony that Ms. Blanco was impaired, the State must satisfy Daubert. Therefore, the Defendant, AMBER BOLTON, moves this Honorable Court by Florida Rule of Criminal Procedure 3.190(a) for an order barring witnesses from testifying in the form of inference or opinion regarding field sobriety exercises absent a finding of reliability by the Court at a Daubert hearing. Ms. Bolton says:
Synopsis of Argument
An investigation for driving under the influence involves three stages. The first stage is vehicle in motion. During this stage law enforcement makes observations regarding the behavior of the driver to develop reasonable suspicion the driver is impaired. The second stage is personal contact with the driver. Here, law enforcement looks for other signs of impairment when gathering the requisite probable cause to make an arrest. The final stage of the investigation is roadside exercises known as field sobriety exercises.
The Defense does not argue that law enforcement cannot discuss their observations. The first two stages of a driving under the influence investigation contain relevant observations that a jury should hear. However, the roadside exercises are specifically designed to be scientifically valid and reliable indicators of impairment. Law enforcement relies heavily on these exercises when developing the opinion that a suspect is impaired. That opinion is not relevant absent the State satisfying foundational requirements regarding the reliability of the field sobriety exercises.
Prior to the adoption of Daubert, law enforcement could provide pure opinion testimony based upon their training and experience. The Florida Legislature in amending Fla. Stat. § 90.702, specifically intended to prohibited pure opinion testimony based upon training and experience. Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 388 (Fla. 1st DCA 2014), reh’g denied (Jan. 14, 2015); see also Booker v. Sumter County Sheriff’s Office/N. Am. Risk Services, 166 So. 3d 189, 193 (Fla. 1st DCA 2015). Because pure opinion testimony no longer exists in Florida, the State has a harder burden to introduce that testimony.
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Factual Basis
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On October 3, 2015, Florida Highway Patrol Trooper Crescenzi responded to a vehicle crash to conduct a DUI investigation.
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Trooper Crescenzi notes that he observed the Defendant swaying as she paced pack and forth on the sidewalk near the roadway.
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Trooper Crescenzi also observed the Defendant to have slurred speech, and watery, glassy eyes with constricted pupils.
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Based on these observations, Trooper Crescenzi has the Defendant perform some Standardized Field Sobriety Exercises.
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The Defendant performs some Field Sobriety Exercises and was arrested for DUI and DUI with Property Damage.
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Pure Opinion Testimony Does not Exist in Florida in Any Form
When the Legislature adopted the Daubert standard on July 1st 2013, Florida Statute § 90.702 was modeled after its federal counterpart:
Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Florida Statute § 90.702 (2015).
There are several cases which interpret this statute as amended. The first is Perez v. Bell South Telecommunications, Inc., 138 So.3d 492 (Fla. 3d DCA 2014). This case is binding. Pardo v. State, 596 So.2d 655, 666-667 (Fla. 1992). Perez holds that “the Legislature expressed its intent to ‘prohibit in the courts of this state pure opinion testimony…” Perez, 138 So.3d at 497. See also: Giaimo v. Florida Autosport, Inc., 154 So. 3d 385 (Fla. 1st DCA 2014) (holding that the Legislature intended to prohibit pure opinion testimony); Booker v. Sumter County Sheriff’s Office/N. Am. Risk Services, 166 So. 3d 189, 193 (Fla. 1st DCA 2015) (finding that pure opinion testimony that is “based only on the personal experience and training” is no longer admissible).
Florida no longer allows any witness to use their “training and experience” to offer an opinion. Rather, the Third and First District Courts of Appeal hold that Daubert requires that opinion testimony, whether science based or not, must be derived from the scientific method. See Perez, 138 So.3d at 498 (Thus, the Daubert test applies not only to “new or novel” scientific evidence, but to all other expert opinion testimony) (emphasis in original). The Legislature directs courts throughout the State to operate as gatekeepers in protecting the province of the jury from improper opinion testimony.
Not only does Perez hold that all expert opinion (whether scientific or not) must be based on the scientific method, it also explains what the scientific method is.
Under Daubert, “the subject of an expert’s testimony must be ‘scientific knowledge.’” 509 U.S. at 590, 113 S.Ct. 2786. “[I]n order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id. (emphasis added). The touchstone of the scientific method is empirical testing-developing hypotheses and testing them through blind experiments to see if they can be verified. Id. at 593, 113 S. Ct. 2786; see also Black’s Law Dictionary 1465-66 (9th ed. 2009)(“[S]cientific method [is] [a]n analytical technique by which a hypothesis is formulated and then systematically tested through observation and experimentation.”) As the United States Supreme Court explained in Daubert, “This methodology is what distinguishes science from other fields of human inquiry.” Id. at 593, 113 S. Ct. 2786. Thus, “a key question to be answered” in any Daubert inquiry is whether the proposed testimony qualifies as “scientific knowledge” as it is understood and applied in the field of science to aid the trier of fact with information that actually can be or has been tested within the scientific method. Id.
Perez, 138 So. 3d at 498.
It could be argued that pure opinion testimony, as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007) only applies to experts and that the Legislature intended to allow non-experts to testify in the form of pure opinion. This is legally incorrect. Perez v. Bell South Telecommunications, Inc., 138 So.3d 492 (Fla. 3d DCA 2014); see also Giaimo v. Florida Autosport, Inc., 154 So. 3d 385 (Fla. 1st DCA 2014); and Booker v. Sumter County Sheriff’s Office/N. Am. Risk Services, 166 So. 3d 189, 193 (Fla. 1st DCA 2015).
Allowing pure opinion testimony also creates practical concerns. The test for reliability prior to Daubert, was explained in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That test only applied to new or novel scientific evidence. Prior to the 2013 amendment to Fla. Stat. § 90.702, and for practical reasons, Florida permitted pure opinion testimony in situations where an expert was testifying based on their training and experience. A lay witness could not testify in the form of pure opinion because a lay witness does not possess the experience and training necessary to develop a legally sufficient opinion. Rather, the correct prior status of the law was that an expert could give an opinion if they had sufficient training and experience. A lay witness, by category, could not give pure opinion testimony because the experience needed to give that opinion rendered them into an expert. In Bolin v. State, 41 So. 3d 151 (Fla. 2010), the defendant raised a post-conviction claim of ineffective assistance of counsel for failing to object to a lay witness’s description of blood. The Florida Supreme Court allowed the lay witness to give his description of blood and held:
Here, Ferns could have testified that he saw a red substance on the ground, but that would not have conveyed with equal accuracy that he saw what appeared to be blood. Likewise, there is not a readily apparent set of words that would equally convey that what Ferns saw appeared, to him, to be blood. Additionally, because Ferns’ testimony was that what he saw “appeared” to be blood, it is not likely that he misled the jury to Bolin’s prejudice.
Bolin, at 157.
Here, there are two things which separate lay opinion from pure opinion, both explained in Florida Statute § 90.701. The question before the Court is exactly what kind of testimony is a law enforcement officer trained in field sobriety exercises providing. In Bolin, the lay witness was not an expert and had no other way to explain what he saw. In a driving under the influence investigation law enforcement seeks to say that based on the totality of the circumstances, or, in their opinion, Ms. Bolton was impaired. Because law enforcement has specialized training and experience in field sobriety exercises they categorically cannot testify in the form of lay opinion. Prior to the adoption of Daubert, the Fourth Circuit Court of Appeals warned of the dangers of permitting any testimony which “elevates the significance of these tests” and restricted law enforcement testimony regarding the field sobriety exercises as to law enforcement’s observations. State v. Meador, 674 So.2d 826, 836 (Fla. 4th DCA 1996). Therefore, allowing law enforcement to give an opinion based on their training or experience would violate Meador.
Even if the testimony were just law enforcement observations of the field sobriety exercises the fact that an arrest happened afterwards creates an inescapable inference that these exercises have some form of reliability. Pursuant to the amendment to Florida Statute § 90.701, the State must now demonstrate that reliability before any testimony regarding the field sobriety exercises should be permitted. To conclude that a lay witness can testify in the form of pure opinion under existing case law is absurd. If that were true, the State would never disclose anyone as an expert because a lay witness could just give their opinion. A medical examiner in a homicide case would never be listed as an expert and could still testify that based on their training and experience the victim was murdered. The status of the law is simpler than that: the Court must look to the purported testimony and decide if it requires training and experience to give that opinion. As explained below, law enforcement clearly receives training and experience regarding field sobriety exercises. Therefore, they are experts whether they claim to be or not. If the State of Florida wants to admit their opinion, the State must satisfy Daubert. The State cannot meet that burden.
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Field Sobriety Exercises (FSEs) Are Subject to Daubert
Before the adoption of Daubert there were three forms of opinion testimony in Florida: lay opinion, pure opinion, and expert opinion. Lay opinion testimony is typically restricted to matters involving distance, time, size, weight, form, and identity. Fino v. Nodine, 646 So. 2d 746, 748 (Fla. 4th DCA 1994). Pairing observations with “training and experience,” which is typical of observations during a DUI investigation, takes the matter out of lay opinion and into either pure opinion or expert opinion. D.R.C. v. State, 670 So.2d 1183 (Fla. 5th DCA, 1996) (holding that an officer could not give lay opinion regarding cocaine despite his experience in the area of narcotics); see also A.A. v. State, 461 So.2d 165 (Fla. 3d DCA 1984) (finding law enforcement’s opinion testimony based upon prior experience and knowledge was “clearly within the purview of [Fla. Stat. §] 90.702 dealing with the admissibility of opinion testimony of experts”).
The State of Florida may contend that law enforcement has long been able to testify regarding their observations of field sobriety exercises. This is true. However, even before the adoption of Daubert law enforcement were not permitted to testify to anything beyond their lay observations. See State v. Meador, 674 So. 2d 826, 832 (Fla. 4th DCA 1996).
Pure opinion testimony no longer exists in Florida. Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 497 (Fla. 3d DCA 2014). And since the lay opinion statute prohibits testimony that is based on training or experience (Fla. Stat. § 90.701) (2015), any law enforcement opinion based on training and experience can only be admitted as expert opinion. The witness must be listed as an expert and their methodology is subject to review under Florida Statute § 90.702 (2015). Moreover, even if the expert opinion does not involve science the testimony must still comport with the scientific method. Id. at 498.
Perez makes it clear that Daubert applies to all expert opinion whether it is scientific or not. The distinction between Frye and Daubert requires the Court, as a gate keeper, to reassess any holding that were decided under Frye. Meador likely would have been decided differently in a Daubert world. The Fourth District Court of Appeal noted that there were genuine concerns about the reliability of field sobriety exercises in predicting impairment. There “was no numerical correlation between performance on the field sobriety tests and breath alcohol concentration, let alone impairment.” Meador, 674 So. 2d at 832. Based on that analysis, field sobriety exercises could not ever be reliably applied to a case. See Florida Statute § 90.702 (2015).
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Proponents of FSEs Claim a Scientific Basis
NHTSA publishes training materials for the administration of field sobriety exercises, called Standardized Field Sobriety Testing. The most recent manual, published in May of 2013, says it is “a living document that is subject to updates and changes based on advances in research technology and science”. Moreover, each FSE described in the manual includes references to empirical testing. The manner of testing and details of the study are unknown by the defense. What is clear is that NHTSA purports to be scientific evidence. It is disingenuous for the State of Florida or law enforcement to claim it is anything else. Field Sobriety Exercises are designed and maintained in an effort to reliability detect impairment. Law enforcement is specifically trained in how to utilize these exercises correctly to detect impairment. These are not “mere observations,” field sobriety exercises are specific tests that must be administered correctly to reach a specific finding. The validity of these tests must be discerned by the Court prior to admission.
II. Legal Burden is on the Proponent of the Evidence to Establish Admissibility
Before Amending § 90.702 Florida courts found that the “proponent of the evidence bears the burden of establishing by a preponderance of the evidence …[admissibility].” CastillovV. E.I. Du Pont De Nemours & Co., Inc. (854 So. 2d 1264, 1268 (Fla. 2008). Nothing about the adoption of § 90.702 changes that. This notion is supported by the federal courts of appeal, where Daubert has been the law for years. See McClain v. Metabolife Intern., Inc., 401 F. 3d 1233, Footnote 2 (11th Cir. 2005). The State of Florida must show the reliability of the field sobriety exercises prior to testimony. Ms. Bolton has no burden.
III. The NHTSA Manual Shows FSEs are not Sufficiently Reliable to be Admissible
Under Daubert the State must show that FSEs as administered 1) have sufficient data, 2) rely on scientific principles, and 3) were reliably applied to this case. Fla. Stat. § 90.702. The State cannot meet that burden. Only three tests are authorized by NHTSA as being sufficiently reliable: the walk and turn, one leg stand, and horizontal gaze nystagmus test. No other FSEs should be considered. Noticeably absent, but common, is the vertical gaze nystagmus test and finger to nose test. The State of Florida must show the scientific validity of these tests. Moreover, Meador contains language which demonstrates that there is no reliably demonstrable relationship between the field sobriety exercises and impairment.
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The Walk and Turn
The published materials on the walk and turn reveals at best a 79% accuracy when administered properly. That means more than one and a half jurors on a seven person panel would be falsely accused of impairment.
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The One Legged Stand
The published materials on the one legged stand reveals 83% accuracy when administered properly. That means that more than one juror on a seven person panel would be falsely accused of impairment.
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Horizontal Gaze Nystagmus
The published materials on the horizontal gaze nystagmus test reveals at best an 88% accuracy when administered properly. That means that one juror on a seven person panel would be falsely accused of impairment. In many cases law enforcement also conducts a vertical gaze nystagmus test in conjunction with the horizontal gaze nystagmus test. Law enforcement willfully combining a test with no data at all with one that claims to have some validity calls into serious question the administration of the entirety of the field sobriety exercises.
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Other Tests
Any other field sobriety exercises administered by law enforcement taints any assumed validity to the other tests. Conclusions derived from tests which have no empirical backing call into question the validity of the entire test battery. If any of the field sobriety exercises are performed incorrectly by law enforcement then the third prong of § 90.702 cannot be satisfied.
IV. The State Cannot Show that the Data was Reliably Applied to this Case.
These accuracy rates can only apply if each and everyone one of these tests were done correctly in this case. The error rates that exist by their own admission require the State of Florida to demonstrate the reliability of these exercises before being used as evidence to determine whether someone is guilty beyond a reasonable doubt. It is not a weight of the evidence issue, it is an admissibility issue. Daubert empowers the Court to be a gatekeeper to keep out “junk science.” It should hold the State to its burden here. Daubert, 509 U.S. at 597. Even if these tests have sufficient reliability to aid an officer in determining probable cause, that does not mean they are sufficiently reliable to be used in court as evidence of guilt. Government regularly uses polygraph machines during investigations, that does not mean those results are admissible at trial. See Davis v. State, 520 So.2d 572) (Fla. 1988) (where polygraph results were only admissible based on stipulation of prosecution and defense).
V. Conclusion
Field sobriety exercises are inadmissible in this case unless the State of Florida demonstrates their reliability to the Court in a Daubert hearing. NHTSA, who crafted, maintained, and studies the field sobriety exercises insists that the exercises have a basis in science. Law enforcement’s testimony regarding even their observations is subject to Daubert analysis. The State must show that field sobriety exercises were created using the same rigorous scientific method that is behind every theorem and postulate in science journals before field sobriety exercises can be admitted.
Thanks to: ATTORNEY ELIZABETH L. MARTINEZ
