In People v. Rose, 8 Misc 3d 184, 185, 794 NYS2d 630 [Nassau Dist Ct 2005], the court commented that the Ortiz court's approach would permit individuals who neither admit to drug use nor consent to a chemical test to evade prosecution and held that "opinion testimony from police trained as drug recognition experts as to the identity of the drug causing the impairment is admissible . . . to supply the required element." (Rose, 8 Misc 3d at 185.)
The accusatory instrument in that case provided that the officer observed the defendant unsteady on her feet, had watery eyes and an extremely hard time following instructions.
The defendant was not found with drugs in the car, the defendant did not make any statements and was not subjected to a urine drug test.
A drug influence evaluation was, however, performed by a drug recognition expert (DRE) who prepared a written report which was served on the defendant and filed with the court.
The Rose court specifically held that the accusatory instrument in that case was facially sufficient based on the opinion testimony of the DRE memorialized in the DRE's written report.