State v. Fincher: No Foundation Required for DRE Testimony

The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2). Facts. The defendant in Fincher was having a really terrible day (seriously, read the opinion) before she rear-ended a car in a restaurant drive-thru. The officers who responded to the accident noticed that Fincher’s eyes were red and glassy and her speech was slurred. She told them that she was prescribed several different types of medication and had taken Xanax the night before. One of the officers administered an HGN test and observed six of six clues. Fincher blew into a portable breath test, which registered a 0.00. Because Fincher was wearing a boot on one leg, the officers did not administer additional field sobriety tests before arresting her for impaired driving. Once at the jail, Fincher consented to a blood draw. An officer certified as a Drug Recognition Expert then evaluated Fincher, using the 12-step evaluation process he had been trained to perform. The DRE protocol is designed to [...]