A.                THE CURRENT RULE OF EXPERT OPINION REGARDING SCIENTIFIC EVIDENCE AS DEFINED BY KELLY/FRYE/DAUBERT IN CALIFORNIA COURTS

            In 1976 the California Supreme Court reached an unanimous decision regarding general principles of admissibility of expert testimony based on new scientific techniques.  In that decision, People v. Kelly (1976) 17 Cal. 3d. 24, the court required a three step approach for admissibility of evidence based on new scientific techniques; expertly established reliability of the technique presented, testimony on the subject by a properly qualified expert, and, adherence to the proper scientific procedures in the specific case. Kelly, supra, at p. 30.

            This decision embodied the principles of Frye v. United States (D.C.Cir. 1923) 293 F. 1013 regarding scientific acceptance.

            The United States Supreme Court took its own hard look at the Frye, supra, standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579.  In that decision, the Court ruled the  Frye,  supra, standard had been superceded by the Federal Rules of Evidence and those rules were the standard for admitting or precluding expert testimony in federal trials.

            The California Supreme Court was forced to reconcile these cases and this state's position on admissibility of expert opinion based on new scientific techniques in People v. Leahy (1994) 8 Cal 4^th 587.  After a detailed analysis of the above cases, the California Evidence Code, legislative history of the California Code, and various authorities relating to the issue, the court concluded:

In sum, Kelly sets forth the various reasons why the more "conservative" Frye approach to determining the reliability of expert testimony regarding scientific techniques represents an appropriate one.  Daubert, which avoided the issues of Frye's "merits," presents no justification for reconsidering that aspect of our holding in Kelly.  Thus, we conclude that the Kelly formulation survived Daubert and this state, and that none of the above described authorities critical of that formulation persuade us to reconsider or modify it at this time. People v. Leahy at 597.

B.        THE KELLY STANDARD IS APPLICABLE TO ANY TESTIMONY BASED IN WHOLE OR IN SIGNIFICANT PART ON PERFORMANCE ON FIELD SOBRIETY TESTS

            It is well established that the procedure set forth in Kelly, supra, is applicable only to "new scientific techniques" See: People v. Webb (1993) 6 Cal. 4^th. 494; People v. Stoll (1989) 49 Cal. 3d. 1136.  Based on California Evidence Code Sections 802 and 803, and the recent persuasive holding in Kumho Tire Co. Ltd., v. Carmichael (1999)       U.S.      , 119 S.Ct. 1167,  the  Kelly, supra, standard is also applicable to opinions expressed by police officers and other witnesses based in whole, or in significant part, on training and experience.

1. Kelly Is Applicable to Opinion Testimony Based on Training and Experience.

            Pursuant to California Code of Evidence Sections 802 and 803, a witness, whether lay or expert, may state an opinion and the reasons therefore unless the reasons or basis for the opinion is precluded by the court.  Such a preclusion is warranted where the reasons or basis are improper.  Such an evaluation of the admissibility of the opinion has been described as the "gatekeeping" function of the trial court.

This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue.  Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [Inapplicable on other grounds in California {see above}, but, principle of "gate keeping" survived, People v. Leahy, supra] ; See also People v. Kelly (1976) 17 Cal. 3d. 24; Frye v. United States (1923) 293 F. 1013; Kumho Tire Co., Ltd. V. Carmichael (1999)    U.S.     , 119 S.Ct. 1167. 

            Although in Kumho, supra, the United States Supreme Court was commenting specifically on the Federal Rules of Evidence as determined by Daubert, supra, its analysis of the "gatekeeping" role under any standard, including the standard required pursuant to California Evidence Code Sections 802 and 803, is persuasive.  The Court alluded to this position by stating that "the gatekeeping inquiry" of Daubert, supra,  is applicable when "the relevant reliability concerns may focus upon personal knowledge or experience"  of the witness. Kumho Tire at 1175, (emphasis added).  This is true because "some of Daubert's questions can help to evaluate the reliability even of experience based testimony" Ibid, at 1176.

            In reaching this decision, the United States Supreme Court found it would be difficult, if not impossible, to hold the Daubert standard applicable only to "scientific" knowledge and not also include "technical" or other "specialized" knowledge.  Stating "there is no clear line that divides one from the other," the court held:

And whether the scientific expert testimony focuses upon specialized observations, the translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest ‘upon an experience confessedly foreign in kind to the jury's own.' Ibid. Kumho Tire at 1174.

            Based on this rationale, the standards of Daubert, supra, have been expanded and are not limited to traditional "experts" or "expertise."   In fact, the Court stated that, "a trial court should use the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony" Id at 1176 .  This is necessary to make certain that a witness, "whether basing testimony upon professional studies or personal experience, employs the same level of intellectual rigor that characterizes the practice of an expert in a relevant field." Id. at 1176.  It is important and relevant for the trial court to ask the witness how often they have produced erroneous results, whether their methodology is generally accepted, etc. even of a "witness whose expertise is based purely on experience." Kumho at 1176.

            2. Field Sobriety Tests Are a "New Technique".

            While various types of field sobriety tests have existed almost as long as the automobile  itself, time alone does not define "new" for the purposes of a Kelly, supra, analysis.

In determining whether a scientific technique is "new" for Kelly purposes, longstanding use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians. People v. Leahy (1994) 8 Cal. 4^th 587 at 598.¹

            The only testing of field sobriety tests which meet this definition were conducted at the request of the National Highway Traffic Safety Administration (hereinafter NHTSA)².  Additionally, only the three standardized tests, and their standardized administration, adopted by NHTSA have been so evaluated.

            In the case at bar, the officer did not use the three tests which have been made the subject of extensive research.  The tests used by the officer are untested, unstudied and unsubstantiated as indicators of sobriety.  While the proponent may argue that these tests have long been used by law enforcement in the performance of their duty:

To hold that a scientific technique could become immune from Kelly scrutiny merely by reason of long standing and persistent use by law enforcement outside the laboratory or the courtroom seems unjustified. Leahy, supra, at 598.

            Unless, and until, the proponent of the tests can establish their reliability, pursuant to Kelly, no testimony should be admitted regarding the performance by the defendant on those tests.

            3. Field Sobriety Tests Are a "Scientific Technique".

            In Stoll, supra, the court suggested trial courts define "scientific" for the purposes of a Kelly, supra, determination, by evaluating the purpose behind Kelly, supra, i.e. to protect the jury from techniques which convey a "misleading aura of certainty." Stoll, supra,  at 1155.  This same rationale was echoed by the United States Supreme Court's holding that Daubert, supra, "applies not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" and "other specialized" knowledge. Kumho, supra,  at 1171.

            In People v. Leahy, supra, the court used just such an analysis of the horizontal gaze nystagmus test.  In determining that test was a scientific technique, the court noted that the name of the test, the manner in which it is given, and the testimony of the officer all tend to persuade the jury the test yields a "definitive truth."

            The standard testimony with regards to other Field Sobriety Tests further fit the definition outlined in Stoll, supra and Leahy, supra.  First, the name "Field Sobriety Test" implies a predetermined pass/fail or graded score.  It is implied that someone, somewhere and at sometime, set forth a "key" for evaluating the performance.  The formal sounding nature of each of the individual tests further enhances the perception that these tasks are definitive in their assessment of sobriety.

            These factors are reinforced by the usual testimony of the officer as to the specific directions given the defendant prior to his or her performance of the tasks.  In many cases this is further reinforced by the officer's demonstration of the events in court.  Finally, the officers use of pre-printed evaluation forms indicate to the jury, that these tests have been studied and are reliable, when the evidence is clear such is not the case.

            As stated in Leahy, supra, ". . . the aura of certainty emanating from the officers' description . . . was unmistakable. . . . A jury could be unduly and unjustifiably impressed by the confidence the testifying officers showed. . . ." Ibid at 599.  This theory is based on the time honored perception that jurors can and do give undue weight to evidence which seems to be scientifically proven.

            Therefore, in order to present testimony based in whole or in significant part on the performance on field sobriety tests, the prosecution must meet the burden set forth in People v. Kelly, supra.

IV.  THE FIELD SOBRIETY TESTS USED

        IN THIS CASE DO NOT PASS KELLY

            In 1975,  NHTSA funded a research project run by the Southern California Research Institute.  At that time, Dr. Marceline Burns, was a founder and researcher at that organization.  The project was to determine if there were, either individually or in combination, any roadside tests which could aid an officer in determining whether a person was under the influence of alcohol.  See Statement Under Oath of Dr. Burns (hereinafter Burns Stmt.) attached hereto.

            Pursuant to that contract, research was performed evaluating many of the commonly used roadside tests and narrowing the list to approximately 15 tests which were used nationwide and seemed to have some usefulness.  From that group of 15 tests, only 6 were eventually believed to be valid and feasible at roadside.  (Burns Stmt. at 10-15)

            These 6 tests were then studied under controlled laboratory experiments to determine their accuracy.  (Burns Stmt. at 22-24).  In the end, a combination of three tests were determined to be the best indication of impairment.  These 3 tests, horizontal gaze nystagmus, one legged stand and walk the line, were adopted by NHTSA as the only tests to determine sobriety at roadside. (Burns Stmt. at 7-8).

            To date, there has been no other scientific study correlating roadside exercises and sobriety. (Burns Stmt. at 38).  (Relevant portion attached hereto and incorporated herein by reference. Available in entirety upon request).

            Additionally, as Dr. Burns has pointed out on many occasions, variance from the proscribed manner of administering, observing and  evaluating an individuals performance of the three standardized tests, deprives the tests of reliability and accuracy.  "Therefore the scoring and the observations don't relate to any of the research data or any of the accumulated data over the years" (Burns Stmt. at page 30, line 4-7).

            This position, that only tests given in the "standardized" manner, have any validity is echoed in virtually every police manual regarding field sobriety tests³.  (Relevant portion attached  hereto and incorporated herein by reference. Available in entirety upon request).

            Furthermore, this position is the current trend in many other states.  Most recently, the Ohio Supreme Court in State v. Homan (April 26, 2000) 89 Ohio St.3d 421, 732 N.E. 2d 952, held that any variation in the use of the NHTSA Standardized Field Sobriety Tests makes the results completely unreliable as relates to probable cause, a lower standard than required for conviction.  The court found ". . . it is well established that in  field sobriety testing even minor deviations from the standardized procedures can severely bias the results."  This is due in part , the court reasoned, to "The small margins of error that characterize field sobriety tests making strict compliance critical" and "When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable." id.

            Based on the foregoing rationale, the Ohio Supreme Court ruled ". . . in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures." ibid.⁴

            In the case at bar, the officer did not use the three standardized tests.  The tests the officer did use have not been the subject of any review or study.   Any tests which the officer did use from the three tests battery approved by NHTSA, were done inconsistent with the prescribed manner.  As stated above, such variance from the standard effectively creates a new test.  Based on the foregoing, those tests do not meet the Kelly, supra, test for admissibility. Furthermore, it is clear that the standard enunciated for admissibility in Kelly, supra, can not be met by the prosecution.

V. CONCLUSION

            The standard for admissibility of evidence based on new scientific techniques first propounded in Kelly, supra, and left unchanged by Daubert, supra, is applicable to field sobriety tests.  Pursuant to the California Evidence Code and the recent decision of the United States Supreme Court in Kumho, supra, the Kelly, supra, standard is applicable to testimony based on training and experience as well as more traditional "scientific" knowledge.  Under that standard, field sobriety tests are inadmissible evidence until shown to be in conformance with Kelly, supra.  The tests used in this case do not and can not be shown to meet this standard of reliability and should be precluded.