Michael T. Norton, Acting Minneapolis City Attorney, Karen S. Herland, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

William R. Kennedy, Hennepin County Public Defender, Warren R. Sagstuen, Susan Herlofsky, Ann Remington, Assistant Public Defenders, 317 - 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mulally, Judge.[*]

Appellant Clinton Cammack was convicted by a jury of driving under the influence of a controlled substance, driving under the influence of alcohol and a controlled substance, and careless driving. Cammack argues that the district court erred in (1) finding sufficient foundation for the drug recognition officer's testimony, (2) failing to suppress the drug recognition officer's testimony because the drug recognition evaluation was not videotaped, (3) failing to give the jury an instruction concerning the drug recognition officer's failure to videotape the evaluation, and (4) failing to give the jury a cautionary instruction as to the weight to be given to the drug recognition officer's testimony. We affirm.

The officers took Cammack to the Minneapolis Chemical Test Unit, and, because they were unsure what substance caused Cammack's impairment, they called a drug recognition officer. When the drug recognition officer arrived, he talked with the arresting officers about Cammack's condition and he saw that Cammack had red eyes and was fidgeting. The drug recognition officer turned on his tape recorder and read Cammack a Miranda warning. The drug recognition officer then administered the drug recognition evaluation, a 12-step procedure designed to determine whether a person is under the influence of a controlled substance.[1] The drug recognition officer concluded that Cammack was under the combined influence of a central nervous system stimulant, a central nervous system depressant, and cannabis.

Cammack made motions to suppress all of his statements to the police and all of the statements made by the police regarding the drug recognition evaluation. Because (1) Cammack had not received a Miranda warning prior to his conversation with the drug recognition officer and (2) it was disputed whether Cammack had invoked his right to counsel after the drug recognition officer read him his Miranda warning, the district court suppressed all of Cammack's statements except those made after the Miranda warning and before Cammack's reference to his right to counsel. The court concluded, however, that it was not necessary to suppress the entire drug recognition evaluation and that the drug recognition officer's observations and opinion were admissible.

Cammack requested that the jury be given an instruction that it could take into account the drug recognition officer's failure to videotape the evaluation when weighing his testimony and a cautionary instruction regarding the weight to be given to the drug recognition officer's testimony and opinion. The district court (1) concluded that because there was no requirement that the evaluation be videotaped, an instruction on failure to videotape was unnecessary and (2) eliminated the word "expert" from, and added language to, the jury instruction on expert witnesses.

Cammack was convicted of driving under the influence of a controlled substance, driving under the influence of alcohol and a controlled substance, and careless driving. The district court denied his motion for new trial, and this appeal followed.

Cammack argues that the drug recognition officer's opinion should have been suppressed for insufficient foundation because (1) the drug recognition officer did not administer all 12 steps of the drug recognition evaluation and (2) the drug recognition officer's opinion was based in part on Cammack's suppressed statements.

A district court's decision on the sufficiency of foundation will not be reversed absent an abuse of discretion. Sorensen v. Maski, 361 N.W.2d 498, 500 (Minn. App. 1985).

In State v. Klawitter, 518 N.W.2d 577 (Minn. 1994), the supreme court concluded that following the 12-step procedure for recognizing drug impairment would lead to greater accuracy than if officers developed their own formats for determining impairment. Id. at 586. Klawitter does not require, however, that all 12 steps be completed before a court may find sufficient foundation for an officer's opinion on impairment. See id.

Here, the drug recognition officer observed that Cammack was uncoordinated, disoriented, fidgety, slurred his speech, and had dilated pupils and elevated blood pressure and pulse. The district court therefore did not abuse its discretion by concluding that even without Cammack's suppressed statements, the drug recognition officer had a basis for his opinion regarding Cammack's impairment.

2. Failure to Videotape the Evaluation.

Cammack argues that the district court should have suppressed the drug recognition evaluation and the drug recognition officer's opinion because the evaluation was not videotaped.

In State v. Scales, 518 N.W.2d 587 (Minn. 1994), the supreme court held that

all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.

Id. at 592 (emphasis added). Here, the drug recognition officer made an audiotape of his evaluation of Cammack. Although it may be desirable to videotape drug recognition evaluations, Cammack cites no authority for the proposition that videotaping is required.

3. Jury Instruction on Failure to Videotape the Evaluation.

Cammack argues that the district court erred by failing to inform the jury that it could consider the fact that the drug recognition officer did not videotape the evaluation in evaluating the officer's testimony. This court will not reverse the district court's selection of jury instructions unless the instructions constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

In State v. Logan, 535 N.W.2d 320 (Minn. 1995), the supreme court remanded to the district court, instructing it to inform the jury that it could consider the failure of the police to tape record an interrogation in evaluating the testimony of a police officer. Id. at 325 (citing Scales, 518 N.W.2d at 592). Here, because the drug recognition officer made an audiotape of the evaluation, there was no violation of the Scales recording requirement. A jury instruction on the drug recognition officer's failure to videotape the evaluation was therefore neither required nor appropriate.

4. Jury Instruction on the Weight of the Drug Recognition Officer's Testimony. Cammack argues that the district court erred by not giving a cautionary jury instruction on the weight to be given to the drug recognition officer's testimony.

In Klawitter, the supreme court held that drug recognition officers should be able to give opinions based on their experience and observations, but that they should not be referred to as experts, and it should not be suggested that an "officer's opinion is entitled to greater weight than it deserves." Klawitter, 518 N.W.2d at 586.

Here, the district court gave the following jury instruction:

A witness who has special training, education or experience in a particular science, occupation or calling is allowed to express an opinion as to certain facts. In determining the believability and the weight to be given such opinion evidence, you may consider, among other things, the education, training, experience and knowledge and ability of the witness, the reasons given for the opinion, the source of the information, and any of the factors already given to you for evaluating the testimony of any witness. Such opinion evidence is entitled to neither more nor less consideration by you than any other evidence.

The district court did not refer to the drug recognition officer as an expert. By instructing the jury to give the testimony the same consideration as other evidence, the district court did not suggest that the jury give it greater weight than it deserved.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹ The steps in the drug recognition evaluation are:

(1) a breath-alcohol test; (2) an interview with the arresting officer; (3) a preliminary medical examination, including taking the suspect's pulse, to determine whether immediate medical attention must precede further investigation; (4) eye examinations, including nystagmus and convergence tests; (5) motor skills tests; (6) an examination of pulse, temperature, and blood pressure; (7) a pupil measurement under four lighting conditions and an "ingestion examination," checking the suspect's nose and mouth for signs of inhalation or smoking; (8) an "examination for muscle rigidity"; (9) a search for needle marks; (10) questioning of the suspect in which the officer should suggest that the officer knows the suspect has used certain drugs; (11) documentation of the officer's "expert opinion" of what categories of drugs, if any, have impaired the suspect's ability to drive; and (12) a toxicological examination.

State v. Klawitter, 518 N.W.2d 577, 579-80 (Minn. 1994) (summarizing the drug recognition protocol training manual) (footnote omitted).