DRE Testimony in NC DWI Cases

DRE testimony has become a fixture in North Carolina’s most serious impaired driving cases, including felony death by vehicle and second-degree murder charges.

The Court of Appeals’ July 2025 opinion in North Carolina v. Moore provides essential guidance for lawyers, judges, and anyone facing charges based on drug impairment evidence. Understanding how DRE testimony is used, challenged, and scrutinized at trial can mean the difference between conviction and acquittal, and may shape plea negotiations and appellate strategy.

When legal charges involve both scientific analysis and complex courtroom questions, DRE testimony can have a significant impact on the outcome. At Powers Law Firm, clients facing felony death by vehicle, felony serious injury by vehicle, misdemeanor death by vehicle, and impaired driving charges trust our experience with serious criminal charges in Mecklenburg, Iredell, Union, Gaston, Lincoln, Rowan, and Stanly Counties. We review select cases across North Carolina. If your case hinges on technical or scientific evidence involving DRE testimony or allegations of drug impairment, please can TEXT or call 704-342-4357 to schedule a confidential consultation.

DRE Testimony: Proving Impairment in North Carolina

Drug Recognition Expert testimony is one of several tools the State may use to prove impairment by substances other than alcohol. Expert testimony from DRE witness, often a law enforcement officer who has received specialized training to conduct a systematic, multi-step evaluation intended to identify alcohol and drug-related impairment, can make or break a case for the defendant.

Not every impaired driving or vehicular homicide case in North Carolina involves DRE testimony.

When it is presented, however, it can carry significant weight in court. The reliability, limits, and admissibility of DRE testimony have been tested in North Carolina courts for decades.

For anyone accused of impaired driving (DWI/DUI), it is important to understand how DRE testimony works, and how it can be critically analyzed and challenged.

In North Carolina v. Moore, the defendant faced felony death by vehicle and second-degree murder charges after a fatal crash.

The State (the prosecutor) relied in part on evidence that included a DRE’s expert opinion.

Notably, the DRE never examined the defendant in person. The “expert opinion” was formed two years after the accident, based only on a review of records and trial evidence.

For defense counsel, that approach raises real concerns about reliability and admissibility.

In challenging the DRE testimony, which necessarily included an expert opinion the jury relied upon in their verdict, the NC Court of Appeals reviewed when and how such expert evidence may be admitted under North Carolina Rule of Evidence 702.

DRE Protocol	Paper Review
✔ In-person exam	✖ No direct exam
✔ 12-step process	✖ Steps skipped
✔ Timely assessment	✖ Delayed opinion
✔ Detailed notes	✖ Only paperwork

DRE Testimony in Felony Vehicular Homicide Charges

The Moore opinion clarifies a critical issue: Not all DRE testimony is created equal.

North Carolina law (Rule 702) allows DREs to give expert testimony “solely on the issue of impairment,” provided the witness holds current certification.

However, the Court of Appeals rejected the State’s broad argument that DREs may testify “regardless of whether their testimony was based on fact or actually complied with their training.”

Instead, the court made clear that even when a DRE is certified, the expert’s methods and application of those methods must be reliable and based on the facts of the case.

The Moore panel held that admitting a DRE’s opinion, when the DRE did not perform a standardized, live evaluation on the defendant, but instead reviewed materials years later, was error under Rule 702.

The statute’s “notwithstanding any other provision of law” clause does not eliminate the requirement that an expert apply their methods reliably to the facts of the case.

In practice, this means prosecutors and police cannot simply call any DRE to give a remote or retrospective opinion. The testimony must reflect both certification and proper application of DRE protocols.

While the error in Moore was found to be non-prejudicial, due to overwhelming other evidence of impairment, the message to DUI lawyers in North Carolina is clear: Failure to strictly follow DRE protocols or reliance on “paper review” testimony from an absent DRE can and should be challenged under Rule 702.

Trial courts remain gatekeepers un Daubert, plain and simple.

Challenging DRE Testimony: NC Drunk Driving Charges

Moore is not just a case for legal theorists. The opinion highlights real-world strategies for DWI defense attorneys defending cases that may turn on expert evidence of impairment:

1. Scrutinize the DRE’s Methodology:
DRE testimony is only as reliable as the process used. The Moore case confirms that courts must examine whether the expert followed recognized protocols, such as the standardized 12-step DRE evaluation performed in person, soon after arrest, and not reconstructed from records years later.

2. The Role of Rule 702 – Expert Testimony
Despite statutory amendments, Rule 702 mandates expert testimony be based on sufficient facts or data, use reliable principles and methods, and apply those methods before formulating an “expert opinion.” The term-of-art, “notwithstanding any other provision of law” in the statute does not override the core requirement for reliability. Defense lawyers should continue to press the trial court on foundational issues before the State’s Drug Recognition Expert is allowed to testify and provide an expert opinion.

3. Preserve the Record on Appeal:
Moore shows that even when the admission of DRE testimony is erroneous, the error may not result in reversal unless prejudice can be demonstrated. Defense lawyers must make a full, clear record at trial, objecting to improper DRE testimony and preserving arguments.

4. Jury Impact:
Where DRE evidence is one of several forms of proof, appellate courts may find the error “harmless” if other evidence (like lab tests, eyewitnesses, or medical testimony) independently supports impairment. Counsel must consider how to rebut all available evidence, not just DRE opinion.

5. Anticipate Prosecutorial Arguments:
Prosecutors may argue that DREs can offer testimony based on reports or video if they are properly certified. The Moore opinion gives defense lawyers a strong basis to demand live, protocol-driven evaluations and to challenge any deviation as a violation of Rule 702.

Prior Driving Record as Evidence of Malice: DWI Second Degree Murder

The Moore case also addresses the use of a defendant’s prior driving record to prove malice, a required element of second-degree murder in vehicular homicide prosecutions.

Rule 404(b) prohibits using prior bad acts to prove a defendant’s character, but allows such evidence for other purposes, including proving “malice” or a “depraved heart.”

North Carolina appellate courts have consistently upheld the introduction of prior speeding and impaired driving convictions to show a defendant’s awareness of the risks of dangerous driving.

In Moore, the trial court limited the evidence to recent violations and found sufficient similarity between the defendant’s prior speeding and the fatal wreck.

The Court of Appeals affirmed that this approach aligns with established precedent, emphasizing that the prior violations need not be identical, just sufficiently similar and reasonably close in time.

Drug Recognition Expert Testimony: Trial Tips for Defense Lawyers

For DWI lawyers defending felony death by vehicle or second-degree murder based on drunk driving allegations, Moore serves as a reminder to revisit case strategy. Here are several practical takeaways:

Trial courts should act as rigorous gatekeepers (consistent with Daubert) for all expert testimony, including DRE testimony and expert opinions.
When appropriate, challenge DRE testimony that is not based on a timely, in-person evaluation and request voir dire outside the presence of the jury to determine reliability and compliance with training protocols.
A Prior driving record may be admitted to prove malice, necessitating consideration of 404(b) issues and temporal proximity. File a Motion in Limine if the State provides notice of intent to introduce the prior record to prove malice.
On appeal, demonstrating prejudice remains a high bar. Evidentiary errors, even if quite substantial, do not guarantee reversal.

Ultimately, Moore reinforces that while DRE testimony and prior driving record evidence are powerful tools for the State, both remain subject to meaningful legal challenge. For practitioners, the appellate opinion provides a blueprint for both contesting and supporting expert evidence in the highest-stakes vehicular crime prosecutions involving impaired driving.

What This Means for North Carolina DWI Defense

Challenging DRE testimony and prior driving record evidence requires more than surface-level objections. North Carolina appellate courts have made it clear that expert opinions must be based on reliable, protocol-driven methods, and that prosecutors cannot use your entire driving history as a shortcut to prove malice in second-degree murder cases.

Defense lawyers who understand these nuances are better able to spot weaknesses, push back against improper “expert opinions,” and keep the State from overreaching with questionable evidence.

For anyone facing DWI homicide or serious vehicular charges in North Carolina, the difference between a routine conviction and a robust defense sometimes comes down to whether your criminal defense lawyer scrutinizes DRE protocols, preserves objections under Rule 702, and challenges the use of prior violations under Rule 404(b).

If you or someone you care about is dealing with a DWI, felony death by vehicle, or serious impaired driving charge where DRE testimony or prior driving record could be introduced as evidence against you, Powers Law Firm may be able to help. Call or TEXT 704-342-4357 to schedule a confidential consultation. Find Powers Law Firm on Google Maps.

About Bill Powers and the Powers Law Firm

Bill Powers is the publisher of the North Carolina DWI Quick Reference Guide, a resource relied upon by attorneys and legal professionals statewide. As a longtime lecturer and educator on the NC DWI and impaired driving laws, expert evidence, and courtroom advocacy, Bill and the team at Powers Law Firm focus on providing clear, practical guidance in some of North Carolina’s most challenging criminal and vehicular cases. The firm regularly assists with serious DUI charges, vehicular homicide, and felony drunk driving charges in Mecklenburg, Union, Iredell, Gaston, Lincoln, and Rowan Counties, and is available for consultation statewide in select matters. The legal community has recognized Bill Powers for his service, education, and professional leadership throughout North Carolina.