Judge Sabatino continued in relevant part: “Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert, 509 U.S. at 593. The term “ordinarily” conveys that a judge’s findings of testability and reasonably low error rates from test results are expected — but not always required — elements of a proponent’s reliability showing. As the Special Master recognized, there are inherent practical limitations within the DRE program that complicate efforts to test the program results empirically and to obtain meaningful error rates. Constitutional, ethical, and practical constraints make the DRE program less “testable” and the error rate less “knowable” than the ideal.
After reviewing the New Jersey data in the record, the Court concludes that the testability and false-positive error rate aspects of the Daubert analysis are largely inconclusive but finds that the inconclusiveness should not categorically bar admission of this useful evidentiary source. The Court rejects the assertion that testability and error rates are categorically the most important Daubert factors.
For many years, the DRE protocol has been widely and regularly used across this country and abroad. No state has discontinued it, and no state’s highest court has nullified it. The protocol has been studied multiple times and periodically revised and enhanced. Although it has imperfections, the protocol has stood the test of time in its widespread acceptance.
Many facets of the DRE protocol weigh in favor of its reliability, but the protocol has several weaknesses as well. It does not establish that a driver is actually impaired, or that the drug categories identified by the DRE are definitively the cause of any such impairment. And there are palpable risks of confirmation bias when a DRE officer administers the protocol, particularly in the more subjective aspects of the examination.
The Court finds that the reliability of DRE testimony is inconclusive. Under the circumstances, it should bar admissibility as opposed to letting the State use inconclusive testing to obtain convictions.
