The Court continued in relevant part: The United States Supreme Court identified in Daubert a list of four factors for assessing reliability of an expert’s methodology under Fed. R. Evid. 702: (1) whether the scientific theory or technique can be, or has been, tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error as well as the existence of standards governing the operation of the particular scientific technique; and (4) general acceptance in the relevant scientific community. Daubert made clear that the factors are non-exclusive and that the reliability inquiry is “flexible,” signaling that other considerations may also be pertinent. See 509 U.S. at 594.
For ease of discussion in this particular case, the Court reorganizes the Supreme Court’s listing of Daubert factors in a few ways and applies them in this sequence: (A) adequacy of standards; (B) publication and peer review; (C) testability and error rate; and (D) general acceptance.
The twelve-step DRE process is elaborate and standardized. It is grounded in a program that has been used across the nation and abroad for decades and is periodically modified. The Court reviews counter-arguments, including the concern that DREs are neither physicians nor medical professionals, and explains why they do not alter its conclusion.
The Special Master appropriately considered not only the existence of roughly two dozen studies but also their substantive content and conclusions. He determined that they “support the State’s position that the DRE protocol has consistently been found to be a reliable method for detecting impairment by drugs.” Although the studies have certain limitations, the Court holds that they meet the Daubert factor of publication and peer review.
There is concern that the Court’s opinion is results-oriented. Most everyone uses our roads for travel. There is a natural concern that making it more difficult to get drugged-driving convictions will make us all less safe. There is much less concern for wrongful convictions.