Evidence Law Changes for Some Alabama DUI Cases

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Evidence Law Changes for Some Alabama DUI Cases

The law affecting scientific expert testimony in certain Alabama DUI cases recently changed. Scientific expert testimony can play a crucial role in Alabama DUI trials. This type of expert testimony can be effective at countering breath alcohol or blood test results offered by the prosecutor against a citizen accused of violating Alabama’s DUI law.

For many decades most state and federal courts, including Alabama State and Alabama Municipal Courts, allowed this type of testimony to be heard by the jury if it passed what was called the “Frye” test or “general acceptance test.” The Frye test got its name from a 1923 federal case that first popularized the test. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test basically says that an expert witness will not be allowed to testify to an expert opinion based on a scientific technique unless that technique is generally accepted as reliable in the scientific community. More recently, federal courts and most state courts have moved to a different test when it comes to scientific expert testimony. This new test is called the “Daubert” test. It is named after – you guessed it – the case that made it the law in federal courts, a 1993 U.S. Supreme Court case called Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Until the Alabama Legislature passed this new law, Alabama remained one of only a handful of states still primarily using the Frye test. With the passage of the new law, Alabama has adopted the Daubert test and replaced the Frye test for some, but not all, types of cases.

In its most recent legislative session the Alabama Legislature passed a bill (Act No. 2011-629; SB 187), which amended Alabama Code § 12-21-160 to replace the Frye test, with some exceptions, with the Daubert test. On November 29, 2011, the Alabama Supreme Court responded and amended Alabama Rule of Evidence 702 “Testimony by Experts” to be consistent with the changes by the Alabama Legislature to § 12-21-160. The language of Rule 702 and § 12-21-160 is now essentially identical, except for minor reshuffling and grammatical variations.

Subsection (a) of the new § 12-21-160 and subsection (a) of the new Rule 702 read virtually identical to the text of the old Rule 702, except the word “Generally” has been added as a subtitle to subsection. The Advisory Committee’s Notes to the Amendment to Rule 702 states that “preexisting judicial authority interpreting Rule 702 remains applicable to Rule 702(a).”

Subsection (b) of the new § 12-21-160 and subsection (b) of the new Rule 702 are where the substantive changes to Alabama’s evidence law can be found. These subsections replace the Frye, general-acceptance test with the Daubert test for scientific expert testimony in certain types of cases.  It is important to note that the new law is limited in scope. First, it does not change the law regarding the admissibility of non-scientific expert testimony, only the admissibility of scientific expert testimony.  Second, in criminal cases the new changes only apply to non-juvenile felony proceedings. Thus, misdemeanor DUI cases are not affected, but felony DUI cases are affected. Further, the new changes do not apply to domestic relations cases, child support cases, juvenile cases, or cases in the probate court. Both § 12-21-160 and Rule 702, expressly provide that the new changes do not modify, supersede, or amend the Alabama Medical Liability Acts of 1987 or 1996, nor do the changes affect any judicial interpretations thereof. Lastly, both provide that the changes do not apply to expert testimony relating to DNA analysis admissible under Alabama Code § 36-18-30.

The Daubert test found in the new § 12-21-160(b) and the new Rule 702(b) is as follows: expert testimony based on a scientific theory, principle, methodology, or procedure is only admissible if:  (1) The testimony is based on sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.

In criminal cases, the changes only apply to applicable proceedings, (i.e. non-juvenile felonies), in which the defendant was arrested on or after January 1, 2012. See, Court Comment to Amendment to Rule 702. The new changes apply to Alabama civil cases, except in the types of civil cases exempted in § 12-21-160(b) and Rule 702(b), commenced on or after January 1, 2012. Id.

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