Beginning July 1, 2013 Florida law changed. Florida had been using the Frye standard; however, we have now switched to what is known as the Daubert standard. The Daubert standard comes from the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.
The old standard, Frye, focused on the underlying scientific principles looking to see if they are sufficiently established and have gained general acceptance in their field. Florida’s new law is found in section 90.702 which was amended to abolish the Frye standard. Now evaluation of expert testimony is patterned after Daubert and Federal Rule of Evidence 702 adding the federal three prong test for determining whether expert testimony is admissible.
Expert witness testimony will now be admissible if such testimony is (1) based on sufficient facts or data, (2) the product of reliable methods and principles, and (3) the expert witness has applied those principles and methods reliably to the facts in the case. Of course, the threshold question of whether the evidence will assist the trier of fact in deciding the matter, and whether or not the expert is properly qualified must still be asked. An expert is properly qualified if they have specialized knowledge, skill, experience, training, or education.
For clients accused of DUI, this has several ramifications. First, those who are administered the Field Sobriety Test known as the Horizontal Gaze Nystagmus have a new tool to challenge the admission of the results. Second, otherwise admissible breath test results will not be admissible unless the state can show that the data are the product of reliable methods and principles. In reality, under the new law, prior to the admissibility of their evidence, the state will have to prove that the test is reliable and incorporates valid science. Both the HGN and the Breath Test are allegedly scientific tests which would require adherence to the new standard. As of this writing, I am unaware of a local State Attorney’s office attempting to meet the new standard. However, a properly trained and experienced DUI defense attorney should be able to raise significant challenges to the reliability of either of the two tests.