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12/09/91 CYNTHIA HARRIS v. DISTRICT COLUMBIA

December 9, 1991

CYNTHIA HARRIS, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Cheryl M. Long, Trial Judge.

Before Ferren, Associate Judge, and Newman* and Belson,** Senior Judges.

The opinion of the court was delivered by: Belson

Belson, Senior Judge: Appellant Cynthia Harris was convicted following a bench trial of driving under the influence of a drug in violation of D.C. Code § 40-716 (b)(1) (1990 Repl.). *fn1 Harris appeals on two grounds: (1) that the trial court erred in admitting into evidence lay opinion as to whether she was under the influence of a drug; and (2) that there was insufficient evidence to support her conviction in the absence of expert testimony that the presence of drugs in her system impaired her driving ability. We affirm.

Officers Chambers and Grooms were riding in their scout car when they observed Harris's car, which was eastbound on Massachusetts Avenue, turn across the median line, cross the westbound traffic lane, strike the curb on the west side, and stop with the left front tire up on the sidewalk. The officers walked up to the car and discovered Harris in the driver's seat slumped over the steering wheel. Harris appeared to be dazed and disoriented. No one else was in the car. The officers spoke to Harris, but she was not able to respond. The officers did not observe injuries or blood, nor did they detect an odor of alcohol on her. After about ten minutes, Harris began to talk, but she did not know her name, where she was, or what had happened. According to Chambers, "she was in a talkative state of mind . . . but nothing was really coming out that made any sense."

Officer Jones came to the scene in response to a radio assignment for an accident. When Officer Jones asked Harris what had happened, Harris started talking incoherently and with a slight slur. But rather than talking about what happened, Harris talked about Officer Jones' hair. Officer Jones noticed that Harris's eyes were slightly pink and glassy.

At trial, the three officers testified that based on their experiences dealing with persons under the influence of drugs, they believed that Harris was under the influence of some substance. Two of them opined that she was under the influence of drugs but not of alcohol, and the other thought it was either drugs or alcohol. *fn2 Harris agreed to take a "breathalyzer" test after she had been transported to the Traffic Division. It did not detect the presence of any alcohol in her system. A chemist from the Medical Examiner's office testified that a urine sample Harris had given following her arrest tested positive for cocaine and phencyclidine (PCP).

We find no merit in Harris's argument that the trial court erred in admitting into evidence lay testimony on the issue of drug impairment. In our view, the considerations that bear upon the admissibility of lay testimony on the issue of drug impairment are similar to those that relate to the admissibility of lay testimony on the issues of alcohol intoxication and insanity. It has long been established in this jurisdiction that lay witnesses, including police officers, may testify to their opinion whether the driver of a vehicle appeared to be under the influence of alcohol. In Woolard v. District of Columbia, 62 A.2d 640, 640-41 (D.C. 1948), this court stated:

We do not overlook the general rule that an expert may not testify to his Conclusions regarding facts from which the jury are capable of drawing their own Conclusions. But we think this case is governed by the more applicable rule that even though one is not an expert he may give his opinion based on personal observations as to whether a person is intoxicated.

Id. (footnotes omitted).

Similarly, this jurisdiction permits lay persons to testify, based on their personal observations, as to whether a person appeared to them to be sane or insane. See United States v. Pickett, 152 App. D.C. 346, 348, 470 F.2d 1255, 1257 (1972). Furthermore, the Supreme Court has stated:

In no other way than this can the full knowledge of an unprofessional witness with regard to the issue be placed before the jury, because ordinarily it is impossible for such a witness to give an adequate description of all the appearances which to him have indicated sanity or insanity.

Turner v. American Security & Trust Co., 213 U.S. 257, 260, 53 L. Ed. 788, 29 S. Ct. 420 (1909) (quoted in Woolard, supra, 62 A.2d at 641); see also Carter v. United States, 102 App. D.C. 227, 237, 252 F.2d 608, 618 (1957). See generally J. Wigmore, Evidence §§ 1933-1938 (1978) (discussing the admissibility of lay person's opinion as to another person's sanity).

The rationale for allowing lay opinion on whether an individual appeared intoxicated by alcohol or insane also calls for allowing lay opinion on whether an individual appeared to be under the influence of drugs. Some other jurisdictions have already approved the admission of lay opinion testimony in cases involving persons suspected of being under the influence of narcotics. State v. Lesac, 231 Neb. 718, 722, 437 N.W.2d 517, 519 (1989) (law enforcement personnel could give opinions that defendant was under influence of drugs because their opinions "were rationally based on those witnesses' perceptions and were obviously helpful to the determination of a fact in issue"); State v. Lindley, 286 N.C. 255, 258-59, 210 S.E.2d 207, 210 (1974) (" patrol officer with five years' experience in enforcement of the motor vehicle laws . . . is competent to express an opinion, based on the conditions he observed and on the knowledge gained from interrogation of defendant, that defendant was under the influence of some drug").

An officer who stops a vehicle for a moving violation and personally observes the driver is in a better position than the finder of fact to draw inferences and Conclusions as to whether the driver was under the influence of drugs. while it may be objected that "drugs other than alcohol can produce a confusing array of symptoms which cannot be sorted out without specialized training," State v. Rifkin, 140 Vt. 472, 476, 438 A.2d 1122, 1124 (1983), the trial court can deal adequately with this problem by requiring that a foundation be laid before a police officer is allowed to testify that the defendant appeared to be under the influence of drugs. A foundation can be laid for such lay opinion testimony by an officer who has observed the allegedly impaired driver by adducing testimony that the officer has had a reasonable amount of experience observing people who were under the influence of drugs. *f ...


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