Pharmacist Not Allowed to Testify: A Reversible Error?

Pharmacy TimesAugust 2017 Pain Awareness
Volume 83
Issue 8

A driver in a Midwestern state was charged with driving under the influence following a traffic stop. During the trial, a pharmacist was called as an expert witness on behalf of the driver.


A driver in a Midwestern state was charged with driving under the influence following a traffic stop. That became a felony charge because of the individual’s prior history. During the trial, a pharmacist was called as an expert witness on behalf of the driver. The trial court denied the opportunity for the pharmacist to testify. Was that denial a reversible error by the trial court judge?


A driver was proceeding through a construction zone when he was pulled over for speeding. Based on things that he observed at the scene, the police officer administered 3 different field sobriety tests to the driver. Failing all 3, the driver was given a breath analysis test that showed a blood alcohol level exceeding legal limits. He was initially charged with a misdemeanor violation, which became a felony charge due to the driver having a prior conviction during the past 5 years.

The day before the trial on the felony charge was to begin, the prosecutor filed a motion with the court asking that the expert witness for the defendant, a pharmacist, be prevented from testifying. This is known as a motion in limine, which seeks a ruling that limits or prevents the other side from presenting certain evidence during the trial. Immediately before the jury trial began, the judge held a hearing on the motion. The trial court judge granted that motion.

Following the presentation of the prosecution’s case, the defense called the pharmacist to testify as an expert on the breath analyzer used for testing the defendant. The pharmacist was questioned out of the presence of the jury, and the trial court judge ruled that he was not qualified to serve as an expert witness.

The driver was convicted on the misdemeanor counts and entered a plea of guilty to the felony counts, admitting that he had prior convictions within 5 years. He filed an appeal with the state court of appeals, arguing that the trial court judge erred when he excluded the expert testimony of the pharmacist and that this decision rose to the level of reversible error, meaning that the judge’s decision was sufficiently serious to be the basis for overturning the conviction judgment of the trial court.


The appellate court concluded that the trial court judge had abused his discretion when he decided that the pharmacist was not qualified as an expert, resulting in exclusion of his testimony. Moreover, the appellate court was unable to conclude that the exclusion of the testimony did not have any impact on the decision by the jury and its verdict. The higher court ruled that the driver’s conviction should be overturned and the case sent back for a retrial.


The appellate court began by pointing out that decisions about admission of evidence are committed to the discretion of the trial court judge, subject to review only of abuse of discretion. Such abuse is found to have occurred if the “decision is clearly against the logic and effect of the facts and circumstances before it … ”

The court next turned to the state’s Rules of Evidence, the relevant portion of which provides: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion … if the expert’s scientific, technical, or other specialized knowledge will help the trier of facts to understand the evidence or to determine a fact in issue.”

The proposed witness had a BSPharm degree, an MS in mathematics, an MS in pharmacy, and a PhD in pharmacy, with a focus on pharmacokinetics. That, plus the witness’ experience with several breathalyzers, led the appellate court to conclude that his proposed testimony “was related to a scientific field, pharmacokinetics, that was beyond the ken of the average person,” and he had sufficient knowledge and experience in this area that would have been helpful to the trier of fact. The question before the trial court should have been whether this individual who had been proffered as an expert witness was qualified for that role, not the erroneous spin that the trial court judge put on the matter of whether any pharmacist would be so qualified. The court of appeals ruled that he was qualified to so testify.

Turning to the impact of the exclusion of his testimony of the jury’s verdict, the appellate judges said, “We are simply unable to conclude that the exclusion of [that expert testimony)] did not have any impact on the jury’s verdict.” The court’s final words sum it up well: “The exclusion of [the expert’s] testimony was improper and was not harmless.”

Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.

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