| |
FIELD SOBRIETY TESTS
Field Sobriety Test Methodology.
When a historical evaluation of the reliability of field sobriety tests and chemical tests to determine the true sobriety of the alleged drunk driver, Field sobriety tests are less reliable, and often are a poor indicator of driving impairment or sobriety because of the subjective nature of the evaluation being made by the law enforcement officer and the inherent error in subjective evaluations of an individual whose normal performance is unknown. Although field sobriety (non-chemical) tests are less reliable than chemical tests in determining BAC, non-chemical tests are still used as a tool to: a) enable an officer to develop probable cause for the stop or arrest; b) assist in establishing possible physical or mental impairment at a time close to driving; and c) establish the general causal relationship between alcohol and driving behavior. The Non-chemical evaluations of impairment or BAC can take several forms. Field Sobriety tests can be conducted in any of the following settings: a) A research setting; b) A controlled setting; and c) An uncontrolled setting. Some types of study may include laboratory tests, correlation studies, and field studies such as driving behavior indicators or measurements of mental and physical ability.
Field sobriety tests (“FST”) have been used for decades to assist the field officer in making an arrest decision. Historically, a wide variety of tests have been used, including:
Asking distracting/interrupting questions, including: a) Finger to nose; b) Finger count; c) Reciting or writing the alphabet, with signature and time and date; d) Counting backwards from 100; e) Tracing on paper; d) The Romberg Balance test; e) Romberg Balance test combined with Finger to Nose; f) Nystagmus (“HGN”); g) One leg stand; h)Line walk; i) Hand Pat;; j) Picking up coins; k) Recitation of date and time; and l) Standing heel to toe.
The United States Department of Transportation, National Highway Traffic Safety Administration (NHTSA) studied several field sobriety tests starting in 1975, with the results being published in 1977. Three field sobriety tests were determined to have a good correlation with impairment when used together, now commonly referred to as Standardized Field Sobriety Tests or SFSTs. The three SFSTs the research validated were: a) Horizontal Gaze Nystagmus; b)
Walk and Turn; and c) One Leg Stand. However, in practice police officers regularly offer a battery of tests including exercises that have not been validated. There is considerable data on the nystagmus (HGN) test and the Romberg test, since these tests have clinical origins.
However, not all of the various field exercises have been studied for reliability, or have been validated as meaningful indicators of alcohol impairment.
Studies of Alcohol Use and Test Reliability.
Controlled Studies
All field sobriety tests are conducted in uncontrolled setting that could allow situational and environmental factors, medical problems and driver performance normalcy to affect the outcome, and lack the necessary baseline performance. On the other hand, laboratory tests help us understand how alcohol affects the human body, and subtle alcohol-induced changes in mental and physical ability become more detectable. Crash statistics imply that although effects may occur at very low levels; only a small percentage of the population is impaired at levels between a 0.04%-0.08%, and a rapid increased in relative crash risk around 0.08% to 0.10%.
Correlation studies that develop a nexus between one activity and another have as their purpose to control and eliminate non-related outside factors. Most alcohol related correlation studies involve several volunteers are asked to perform a variety of tasks that relate to driving and driving itself prior to the administration of alcohol. Once the performance baseline is established, the volunteers are given alcohol. The alcohol level is monitored to ensure the volunteers reach full absorption and a target BAC. The volunteers are then asked to perform the initial tasks again. A statistical measure called a correlation coefficient measures the degree to which two variables are linearly related, and statisticians can calculate the strength of their relationship by determining how close the data for each variable form a straight line. Correlation coefficients that are closer to 0 than either +.6 or -.6 to not have much statistical significance. The correlation coefficient is interpreted as a measure of goodness of fit of the standardized variables to the identity line rather than to the least-squares prediction line. A correlation coefficient may also have an associated p-value that tests a theory against a known set of data referred to as a null hypothesis.; the probability of finding the current result if the correlation coefficient were in fact zero. A large p-value suggests the data does not contradict the null hypothesis. Appreciating the significance of correlation coefficients and p-values can be important in trial. Knowledge of correlation coefficients and p-values is the key to assessing the true value of a correlation study
Driving Behavior Studies and Epidemiology
According to a 1978 Department of Transportation (“DOT”) report reviewed four U.S. studies dating back to 1938, 9-13% of drivers in injury crashes and about 5% of drivers in property damage crashes had a BAC of greater than 10%. The 1999 NHTSA General Estimates Systems (“GES”) data indicates that 9% of the injury crashes and 5% of property-damage-only crashes involved alcohol in the judgment of the officers. Their Fatality Analysis Reporting System (“FARS”) for the same period indicates that of the fatal crashes involved at least one driver or non-occupant with a BAC of 0.10% or greater. Epidemiologic indicate that alcohol beyond a certain amount is associated with increased crash risk, but do not directly correlate a particular BAC level with an increased risk for an accident with a particular individual. The NHTSA also provided a list of driving behaviors and their related probability of discriminating “nighttime drunk drivers” with sober drivers. These Driving Cues and Probability of .10% BAC were : Wide turning radius, 65%; Straddling center or lane marker, 65%; A drunk appearance, 60%, Near miss strikes of other vehicles or objects, 60^; Weaving in and out of lanes, 60%; Driving on the edge of road or shoulder. 55%; Driving on other than designated roadway, 55%, Swerving or an abrupt turn, 55%, Driving less than 10 m.p.h. below the speed limit, 50%; Following too closely, 50%; Drifting, 50%; Tires on center or lane marker, 45%; Braking Erratically, 45%; Driving into opposing or crossing traffic, 45%; Signaling inconsistent with actions, 40%; Slow response to traffic signals, 40%; Stopping inappropriately, 35%; Turning abruptly or illegally, 35%; Accelerating or decelerating rapidly, 30%; and Driving with the headlights off, 30%.
Initial Law Enforcement Contact/Field Sobriety Tests
The signs of intoxication from an objective standpoint include the obvious odor of alcohol on the driver’s breath, slurred speech and red/watery eyes that can \initially determine that a driver has been drinking and provide justification for the start of a DUI/DWI investigation. Such signs lead to the detaining offer’s interrogation of the DUI suspect to determine if there are any pre-existing physical or mental impediment; and also to determine any divided attention The divided abilities. The divided attention abilities ask for two things simultaneously (i.e., driver’s license and registration), and ask interrupting, distracting or unusual questions.
The Romberg Test
A type of field sobriety test was developed by Moritz Heinrich Romberg (1795-1873) that can be used in a clinical setting to diagnose diseases through balance assessment. Named the “Romberg Test,” it is modified for use by police officers in the administration of a Drug Evaluation and Classification or generic Field Sobriety Test (FST) program. Although not one of the Standardized Field Sobriety Tests it is widely used by the police. It is a neurological test to detect an inability to maintain a steady standing position with the eyes closed. The subjects stand with their feet together, hands at their side, their head tilted back, and their eyes closed. Out of this basic format several variations have arisen. These variants are sometimes referred to as the “Sharpened” Romberg or the “Modified Position of Attention.” including standing heel to toe rather than feet side by side, holding the arms straight out in front of the body rather than touching the sides of the body, tilting the head back, estimating when 30 seconds have elapsed, and standing heel to toe with the head back, or standing in the basic Romberg position while performing the finger to nose test. Balance requires the proper functioning of the vestibular system, the proprioception system and the visual system.
In a clinical setting the Romberg test is always performed with the eyes open at first, in order to establish a performance baseline. In Law Enforcement, the amount of sway is assumed to correlate to alcohol impairment, without the establishment of a baseline. The key to reliability in the Romberg Test hinges on whether a nexus between normal performance and alcohol-induced performance has been established. The measurement of a normal baseline performance for the test subject is critical in the determining whether there is a change from normal performance and whether any change can be attributable to alcohol ingestion. Since determining a baseline performance is virtually impossible in a law enforcement setting, data on the normal range of performance for the general population is essential. However, it is well known that “balance tests of various sorts show large individual differences in the performance of sober individuals. However, several federal studies indicate that the Romberg test is unreliable in identifying individuals who are over a 0.08% BAC.
Other Non-Standardized Tests
The finger to nose test generally requires the subject to close their eyes and then touch the tip of their nose with the tip of their index finger, alternating hands. The NHTSA research project revealed that the finger to nose test (along with the Romberg test) only reflected the presence of alcohol, not the increase of predictive ability of testing.
The alphabet test requires the subject to recite part of the alphabet, alternatively the entire alphabet is required to be recited or written down, but not properly recited backwards. However, the count down test requires the subject to count aloud numbers in reverse. On occasion when performing the alphabet test or the count down test, the officer will have the subject stand with one foot in front of the other in a heel to toe position. It is most often used as a starting position when performing other field sobriety tests. The finger count test requires the subject to touch the tip of the thumb to the tip of each finger on the same hand in a particular order while counting. These tests were considered in the initial NHTSA study (1977), but were not selected as indicators of alcohol impairment. The Standardized Field Sobriety Test (SFST) Student Manual warns that these techniques are not as reliable as the SFST tests and “do not replace the SFST.” [NHTSA, U.S. Department of Transportation, HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. VI-4).
The hand pat and coin pick up field sobriety tests are non SFST. The hand pat has e person taking the test place one hand palm up and in front. The other hand is placed on this hand with the palm down. The top hand then pats the bottom hand once and is then rotated 180 degrees to pat the bottom hand with the back of the top hand. The test continues until the officer tells the subject to stop. The subject is told to increase the speed of the rotation of the hand during the test. The coin pick up test has the subject pick up with one hand several coins on a flat surface like the hood of the car.
Standardized Tests
In an effort to standardize field sobriety tests, in 1975 the National Highway Traffic Safety Administration (NHTSA) commissioned a group of scientists from the Southern California Research Institute (SCRI) to evaluate and develop a series of field sobriety tests.
The goals were to: a) Evaluate currently used physical coordination tests to determine their relationship to intoxication and driving impairment; and b) Develop more sensitive tests that would provide more reliable evidence of impairment and to standardize the tests and observation.
The result of this research was the development of the Standardized Field Sobriety Tests, which are now used by police officers to evaluate drivers who may be DUI. [DOT HS 809 400, Development of a Standardized Field Sobriety Test (SFST) Training Management System, U.S. Department of Transportation National Highway Traffic Safety Administration, November 2001 Anacapa Sciences, Inc.] They are standardized because are always administered in the same way; a specific set of clues on each test are used to evaluate performance; and A subject’s performance is assessed relative to a specific criterion for each test. Standardization helps lessen the inherent subjectivity of unguided evaluation,
Any validation that is imputed to these tests through the field studies is applicable only when the tests are administered in the prescribed, standardized manner; the standardized clues are used to assess the suspect’s performance; and the standardized criteria are employed to interpret the performance. The adherence to the administrative and evaluation guidelines is so critical, that the program warns that reliability may not be imputed to those tests which do not follow the program exactly. [NHTSA, U.S. Department of Transportation, HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. VIII-3. In addition, the NHTSA specifically states that “If any one of the standardized field sobriety test elements is changed, the validity is compromised.” [NHTSA, U.S. Department of Transportation, HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. VIII-3.]
The Nystagmus Test
Nystagmus is the rhythmic back and forth oscillation of the eyeball that occurs when there is a disturbance of the vestibular (inner ear) system or the oculomotor control of the eye. All people have slight oscillation of the eyes normally. Ther two major types of eye movements are pendular and jerk. Pendular nystagmus is where the oscillation speed is the same in both directions. Jerk nystagmus is where the eye moves slowly in one direction and then returns rapidly. Most types of nystagmus have the fast and slow phase (jerk nystagmus). Horizontal Gaze Nystagmus (HGN) is a type of jerk nystagmus with the saccadic movement toward the direction of the gaze, and is involuntary. The subject exhibiting nystagmus is unaware that it is happening because the bouncing of the eye does not affect the subject’s vision. There are three basic types of nystagmus: vestibular, neural, and pathological. Horizontal jerks when the eyes are at the lateral gaze extremes is normal.
Decomposition products of alcohol provoke vestibular disorders. The concept of two distinct stages of positional alcohol-induced nystagmus was postulated: stage one occurs when the eyes are jerking at high level of concentration; stage two occurs when the eyes jerk, with the fast phase in the opposite direction than in phase one, when the BAC is low or zero. Caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption. Fatigue exacerbates one component of the Horizontal Gaze Nystagmus test, end-position nystagmus.
The National Highway Traffic Safety Administration (NHTSA) has repeatedly stated that nystagmus is a reliable indicator of a .10% alcohol level. Alcohol causes two types of nystagmus: Alcohol gaze nystagmus (including Horizontal Gaze Nystagmus) and Positional alcohol nystagmus. The Horizontal Gaze Nystagmus test has a high baseline error and a dose/response relationship that varies greatly according to whether the subject’s blood alcohol concentration is rising or falling. National Highway Traffic Safety Administration (NHTSA) research found that Horizontal Gaze Nystagmus (HGN) may be evident when a person’s BAC reaches approximately .06%. [National Highway Traffic Safety Administration, U.S. Department of Transportation, Psychophysical Tests for DWI Arrests, No. DOT-HS-802-424 (June 1977), note 21, at p. 7.]
The Nystagmus Test has a suspect following a stimulus with the eyes. The officer observes smooth pursuit, nystagmus prior to a 45 degree angle, and nystagmus at maximum deviation. Conditions that may interfere with the test include wind or dust irritating the subject’s eyes, or visual or other distractions impeding the tests. Officers are instructed to admininister the test as follows: Have suspects remove their glasses if they are wearing them; Tell suspects to put their feet together and place their hands at their sides; to keep their head still during the test; to look at the stimulus; to follow the movement of the stimulus with their eyes only; and to continue looking at the stimulus until they are told that the test is over (With the stimulus approximately 12 to 15 inches from the nose in and slightly above eye level to commence the test. The officer should check for equal tracking of the eyes; for equal pupil size; and for lack of smooth pursuit, always starting with the suspect’s left eye. The stimulus should move at a speed where it takes 2 seconds to bring the eye as far to the side as it can go and 2 seconds back. Perform twice in each eye; The officer should check the eyes for distinct nystagmus at maximum deviation; for the onset of nystagmus prior to 45 degrees; Then, total the clues; and Check for Vertical Nystagmus.
Walk and Turn Test
The Walk and Turn Test is properly administerd with the suspect stand in a heel-to-toe fashion with arms at the sides while a series of instructions are given. Then, the suspect must take nine heel-to-toe steps along a line, turn in a prescribed manner, and take another nine heel-to-toe steps along the line. All of this must be done while counting the steps aloud and keeping the arms at the sides without stopping walking until the test is completed. It further requires a “designated straight line and a dry ahrd surface. The officer is instructed to give the test as follows: Tell suspects to place their left foot on the line; their right foot on the line, in front of the left foot, with the heel of the right foot against the toe of the left foot. Demonstrate the heel-to-toe stance; to put their arms down against their sides and to keep them there throughout the entire test; and that they are to maintain this position while you give the instructions. Suspect should understand.that every time they take a step, the heel must be placed against the toe of the other foot. Suspects should be told when the ninth step has been taken, they must leave the front foot on the line, and turn around using a series of small steps with the other foot. Demonstrate a proper turn; and they must take another nine heel-to-toe steps up the line; that they must watch their feet at all times, must count the steps aloud, and must keep the arms down at the sides. Suspects shuld be told that once they start walking, not to stop walking until the test has been completed, ask suspects if they understand, and tell the suspect to begin. The offic er should also given the following instructions: the suspect should break away from the heel-to-toe stance, stop giving instructions until he or she resumes the stance, they must take nine heel-to-toe steps down the line, turn around, and take nine heel-to-toe steps up the line. If the suspect fails to either look at their feet or count their steps aloud, remind the suspect to do so and note the occurrence on the evaluation form. These tasks are part of the validated clues and must be performed to properly evaluate divided attention. 2004 NHSTA Instructor and Student Manuals,
The Walk and Turn test has eight clues of impairment. Two clues apply while the suspect is standing heel-to-toe and listening to the instructions: a) The suspect can’t keep balance; b) Breaks away from the heel-to-toe stance; c) Swaying or using arms for balance is not considered a clue at this point; d) Starts too soon; e) Stops walking; f) Misses heel-to-toe; more than 1/2 inch gap; g) Steps entirely off the line; h) Raises the arms while walking more than 6 inches; i) Takes the wrong number of steps; and j) Turns improperly. Two or more clues classify the suspect’s BAC as above a 0.10%.
The One Leg Stand Test
The One Leg Stand requires a reasonably dry, hard, level, and non-slippery surface.”
This test has the suspect to stand on one leg with the other leg extended in front of the suspect in a stiff-leg manner, with the foot held approximately six inches above and parallel with the ground. The suspect is to stare at the elevated foot, and count aloud until told to stop, “one thousand and one, one thousand and two, one thousand and three ...” This test requires a “reasonably dry, hard, level, and non-slippery surface.” The officer is instructed to give the test as follows: Tell suspects to stand with feet together and arms down at the sides; to maintain that position while you give the instructions; emphasize that they should not try to perform the test until you say to “begin.” The officer should ask suspects if they understand, and instruct them that after saying “begin” they must raise their leg in a stiff-leg manner, and hold the foot approximately six inches off the ground, with the toe pointed forward so that the foot is parallel with the ground; Demonstrate the proper one-legged stance for the suspect; Tell suspects that they must keep the arms at the sides and must keep looking directly at the elevated foot, while counting in the following fashion: “one thousand and one, one thousand and two, one thousand and three,” and so on until told to stop; ask the suspect if he or she understand; and tell the suspect to “begin.” It is important that this test last for thirty seconds 2004 NHSTA Instructor and Student Manuals,
The One Leg Stand has four clues of impairment: Sways while balancing; Uses their arms to balance; Hops; or Puts their foot down. Two or more clues classify the subject as a 65% chance of being over a 0.10% BAC. [NHTSA, U.S. Department of Transportation, HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. VIII-14.
Evaluating the SFST’s
Before interpreting the reliability of the SFSTs it is important to determine the mean and standard deviation of normal performance. According to the SFST method, impairment is imputed if a subject has four validated clues of impairment in the HGN test, or two validated clues on the One Leg Stand or Line Walk. By keeping the number of clues to “fail” low, there is a greater likelihood of correctly identifying drivers with a high alcohol level. However, nneither NHTSA, DOT, nor the NHTSA-commissioned researchers have claimed that the SFST are actual direct indicators of actual driving impairment.
Non-chemical tests have inherent issues that may make many of the tests unreliable or marginally reliable. Some of these issues include: Lack of scientific data to support the reliability of the test; Inherent inter-subject and intra-subject variability; Unknown baseline performance levels (when sober) of the tested subject; Medical and alternative reasons for performance; The design of the study itself; The use of means or averages that may not apply to a particular subject; and Improper administration and evaluation of the test. The use of statistics from one set of data to support similar tests that are administered in a different manner can be troublesome. Therefore, scientists must consider all aspects of non-chemical performance before rendering an opinion of impairment/sobriety or making a statement regarding the impairment of all persons at a particular level.
RAISING LEGAL CHALLENGES TO FIELD SOBRIETY TESTS.
Prefatory Matters to FST Challenges.
In most cases the DUI defense practitioner will decide to challenge some or all of a Field Sobriety Test. If possible, the FST scene and any evidence should be secured, and photographs should be taken. The next concern is seeing whether the FST was actually conducted on a smooth and level, and that the area was lighted.
Once the DUI defendant is in custody at the arresting agency’s jail, you should determine if any phone calls were made or anything was recorded at the receiving; this recorded call should be saves as it may show speech that was clear and not slurred to rebut any claim of slurred speech due to intoxication made by the prosecutor. One California case held that a tape recording does not need to be completely intelligible in order to be admissible. [People v. Von Villas (1992) 11 Cal. App. 4th 175, 225. The client’s shoes at the time of arrest should also be looked at because women’s high heels, cowboy boots or sandals will make the test more difficult to perform. If these type of footwear were used, it is a good practice e to keep them in the same condition for a possible trial where they could be made an issue.
Once the physical evidence available initially has been reviewed, the DUI practitioner should attempt to contact any and all witnesses that the client had contact with as soon as possible to advise them of the significance of remembering the facts of their time in the presence of the client and solidify their memory.
The DUI defense practitioner should always have the law enforcement training manuals for every agency that you will eventually deal with. The first document that should be reviewed after the client’s arrest is all of the arresting officers report, including any notes taken that may not be part of the official report. The manual will show how the officer was trained and whether that could be an issue at trial. When voir dire comes and you are selecting a jury, find those that seem on the same level as the client or may not have a similar ailment, and thus more likely to be sympathetic to the client. You should consider a challenge for cause if a juror reveals that he or she thinks field sobriety tests are infallible. However, be aware that striking a juror for cause is not easy in most courts. Potential jurors with specialized training may be able to see the inherent problems with FST’s such as the inherent fact that the police officer has no baseline to determine how the defendant would perform without the consumption of alcohol. After a baseline is established, then deviations from the baseline due to some factor (such as the consumption of alcohol) are significant. However, without a baseline it is difficult to interpret data. The lack of a “scoring system” to FST’s may be an issue to exploit with
Attacking the FST
There are legitimate challenges to the reliability and accuracy of field sobriety tests, and courts may not take judicial notice of scientific or technical matters in DWI/DUI cases Therefore, the admissibility of field sobriety tests may be challenged on the grounds that the “tests” lack proof that the tests are a reliable indicator of intoxication because there si no foundation for them.
Reliability Attacks of FST’s Based on Common Law Standards.
The prior reliable standard for the admissibility of scientific evidence was governed in the federal system by the longstanding holding in Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013, 1014, which permitted the introduction of scientific evidence if the procedure was generally accepted in the scientific community. Federally this standard was overtturned by Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587, which required required the court to act as a “gatekeeper” to bar unreliable expert testimony. The court delineated several guidelines for judging the admissibility of expert testimony. a) Are the expert’s opinions or theories testable and measurable by an objective sense, or are they subjective?; b) Have the expert’s methods and techniques been subject to peer review and publication?; c) What is the error rate?; and d) Is the methodology or the theory generally accepted in the relevant scientific community? Because Daubert was not decide on constitutional grounds, states are free to continue to use the older Frye standard. However, the Court emphasized that these factors are not exclusive or determinative, Id. at 578-579. Other courts have found that the Daubert criteria are not always applicable for specific expert evidence. Tyus v. Urban Search Management (7th Cir. 1996) 102 F.3d 256, 263-264, (sociologist expert testimony not easily assessed with Daubert criteria).] The Supreme Court subsequently held that the court’s gatekeeper function on expert testimony extends to all expert testimony, not just expert testimony related to science. Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137, 147-148. Thus, Daubert applies to police officer testimony on field sobriety tests. A district court applied the Daubert/Kumho Tire factors to standard field sobriety tests, and concluded that the tests do not meet admissibility requirements as direct evidence of intoxication. U.S. v. Horn, (D.C. Md. 2002) 185 F.Supp.2d 530, 559, [Permitting testimony describing how the defendant performed on the field sobriety tests, but precluded any use of the words “test,” “standardized clues” or the words “pass” or “fail” in describing the defendant’s performance on the exercises.”
Attacks Based Upon Law Enforcement’s Failure to Comply With NHTSA Criteria.
The term “Field Sobriety Test” can be better described on cross-examination as a “driver impairment test.” Several states have described this in various ways. California requires the person to be “under the influence” of an alcoholic beverage where the person’s “physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” Cal. Crim. Jury Inst. 16.831. Georgia requires that the driver was “less safe” in driving due to alcohol consumption. Stepic v. State (1997) 226 Ga. App. 734, 735. Texas requires “intoxication,” and defines it as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substance, or any other substance into the body.” Tex. Pen. Code §49.01(2)(A).
FST’s may be challenged on the ground that the tests are only valid if they are administered in a reliable manner in accordance with NHTSA standards. In general, see Ohio, Ohio v. Homan (2000) 732 N.E.2d 952, 955-956, [Failure to use NHTSA standardized test compromised the validity of the test]. Most of the legal challenges to field sobriety tests have been to the horizontal gaze nystagmus test (“HGN”) . The primary reason for this is the misleading appearance of reliability in its name, as found in one Ohio court. State v. Murphy (Iowa 1990) 451 N.W.2d 154, 156, [Horizontal gaze nystagmus test “pretentiously scientific” name is an obstacle to its admissibility. Other courts finding that FST’s must be administered in a standardized pursuant to NHTSA standards are: There is a plethora of case law in virtually every jurisdiction challenging the validity of the HGN test. Those in California are: People v. Joehnk (1995) 35 Cal. App. 4th 1488, 1504; People v. Leahy (1994) 8 Cal.4th 587, 608-609, [Testimony by police officers regarding mere administration of HGN field sobriety test is insufficient to meet general acceptance in scientific community standard required by case law, and judicial notice may not be taken of studies and journals]; People v. Williams (1992) 3 Cal.App.4th 1326, [officer not qualified to give an expert opinion on HGN Test that the appellant's responses to that test were caused by alcohol consumption, and rejected the argument that the opinion qualified as a lay opinion.] But see People v. Ojeda (1990) 225 Cal.App.3d 404, 408, [Deputy administered HGN test was admissible as evidence due to officers use of it in finding reliable indicator of alcohol intoxication.].
Other States include
Alabama: Malone v. City of Silverhill (Ala. Crim. App. 1989) 575 So.2d 101, 103-104, rev’d on other grounds, Ex Parte Malone, 575 SO.2d 1006 (1990); [HGN is admissible with the proper foundation.];
Alaska: Ballard v. State (Alaska Ct. App. 1998) 955 P.2d 931, 940, [HGN is admissible only to indicate that a defendant consumed alcohol and may be impaired. It may not be used to provide a numerical alcohol value];
Arizona: State ex. Rel. Hamilton v. City Court of City Mesa (Ariz.1990) 165 Ariz. 514, 517, [With a proper foundation, HGN is admissible as an indicator that a person is under the influence of alcohol];
Arkansas: Whitson v. State (1993) 314 Ark. 458, 465-466, [HGN is admissible as it was not offered to show a particular numerical level of classification];
Connecticut: State v. Russo, (2001) 62 Conn. App. 129, 135-136, [Daubert foundation is required for the admissibility of HGN];
Delaware: State v. Ruthardt (Del. Super. Ct. 1996) 680 A.2d 349, 360, [With the proper foundation HGN is admissible, but not for a specific alcohol level];
Florida: Bowen v. State (Fla. Dist. Ct. App. 1999) 745 So.2d 1108, 1109-1110, [HGN is admissible with a chemical test]; Williams v. State (Fla. Dist. Ct. App. 1998) 710 So.2d 24, 26, [HGN is generally accepted in the scientific community; the test is admissible but not for a specific alcohol level];
Georgia: Kirkland v. State (2002) 253 Ga. App. 414, 415-416, [a police officer was allowed to testify that if he saw all six possible HGN testing clues the defendant would have an alcohol concentration of at least .10%];
Hawaii: State v. Ito, (Hawaii. Ct. App. 1999) 90 Hawaii 225, 242-244, [the court held that the lower court properly took judicial notice of the validity of HGN testing; the conviction was reversed because the lower court relied solely on the improperly administered HGN test to establish probable cause];
Idaho: State v. Garrett (1991) 119 Idaho 878, 882-883, [HGN is admissible to establish that the person was under the influence of alcohol];
Illinois: People v. Basler (Ill. 2000) 193 Ill.2d 545, 551-552 [A Frye hearing is no longer needed before admitting HGN evidence, but may still be challenged. With the burden on the defense to establish that the evidence is scientifically unreliable.;
Iowa: State v. Murphy (Iowa 1990) 451 N.W.2d 154, 158, [HGN is admissible]
Kansas: State v. Chastain (Kan. 1998) 265 Kan. 16, 22-23, [HGN inadmissible due to the fact it is not generally accepted in the scientific community];
Kentucky: Com. v. Rhodes (Ky. Ct. App. 1996) 949 S.W.2d 621, 623-624, [HGN is admitted, but there was no objection to the failure of the state to lay a foundation as to the officer’s qualifications];
Louisiana: State v. Armstrong (La. Ct. App. 1990) 561 So.2d 883, 884-885, [HGN is admissible and meets the Frye requirement];
Maine: State v. Taylor (Maine 1997) 694 A.2d 907, 911-912, [HGN is admissible but not for a particular alcohol level];
Massachusetts: Com. v. Sands (Mass. 1997) 424 Mass. 184, 187-188, [Expert foundation required as well as foundation as to the officer’s qualifications];
Michigan: People v. Berger (Mich. Ct. App. 1996) 217 Mich. App. 213, 217-218, [HGN meets the Frye requirements];
Minnesota: State v. Klawitter (Minn. 1994) 518 N.W.2d 577, 585-596, [HGN meets the Frye standard).
Mississippi: Young v. City of Brookhaven (Miss. 1997) 693 So.2d 1355, 1362, [HGN admissible only to establish probable cause not in the guilt phase];
Missouri: Duffy v. Director of Revenue (Mo. Ct. App. 1998) 966 S.W.2d 372, 380, [HGN Test results admissible if the police officer employing the test understands how to score the test];
Montana: Hulse v. DOJ, Motor Vehicle Div. (Mont. 1998) 289 Mont. 1, 27-29, [HGN is admissible if it meets Montana Evidence Rule 702 requirements];
Nebraska: State v. Baue (Neb. 2000) 258 Neb. 968, 982-983, [ HGN is admissible under Frye, but only to show impairment not an alcohol level];
New Hampshire: State v. Duffy (N.H. 2001) 146 N.H. 648 652, [as a scientific test, HGN must meet the requirements of New Hampshire’s Rules of Evidence 702];
New Jersey: State v. Doriguzzi (2000) 334 N.J. Super. 530, 538-539, [HGN must meet Frye requirements];
New Mexico: State v. Torres (1999) 127 N.M. 20, 976 P.2d 20, 30-32, [judicial notice of HGN is not appropriate; a Daubert foundation is required prior to admissibility];
New York: People v. Erickson, (N.Y. App. Div. 1989) 156 A.D.2d 760, 762-763, [A scientific foundation must be laid prior to admitting HGN evidence];
North Carolina: State v. Helms (1998) 348 N.C. 578, 581-583, [Expert testimony is required prior to admissibility of HGN];
North Dakota: City of Fargo v. McLaughlin (N.D. 1994) 512 N.W.2d 700, 706-708, [HGN is admissible for purposes of intoxication not for a particular blood level];
Ohio: State v. Homan (2000) 89 Ohio St. 3d 421, 426-428, [HGN must be administered in strict compliance with established procedure];
Oklahoma: Yell v. State, (Okla. Crim. App. 1993) 89 Ohio St.3d 421, 425-426, [HGN is admissible but not for particular blood alcohol level];
Oregon: State v. O’Key (Or. 1995) 321 Or. 285, 295-297, [HGN is admissible for impairment, but not for a specific numerical alcohol value];
Pennsylvania: Com. v. Apollo (1992) 412 Pa. Super. 453, 459-462, [HGN is admissible with a proper foundation];
South Carolina: State v. Sullivan (S.C. 1993) 310 S.C. 311, 315-316, [HGN is admissible for intoxication evidence but not for alcohol level];
Tennessee: State v. Murphy (Tenn. 1997) 953 S.W.2d 200, 202-203, [HGN is admissible as scientific evidence if it meets the requirements of Tennessee Rules of Evidence 702 and 703];
Texas: Youens v. State (Tex. App.—Houston [1st Dist. 1999] 988 S.W.2d 404, 406, [HGN is admissible for intoxication but not for a particular alcohol level]; But see State v. Fecci, Tex. App.—San Antonio, 1999) 9 S.W.3d 212, 221-222, [a properly qualified witness may testify that HGN yields a particular blood alcohol level]; Utah: Salt Lake City v. Garcia (Utah Ct. App. 1996) 912 P.2d 997, 1001, [HGN is admissible although not offered as a scientific test; consequently, the court permitted testimony based solely on the officer’s training and experience];
Washington: State v. Cissne, (1994) 72 Wash. App. 677, 684-686, [HGN must meet the Frye standard];
West Virginia: State v. Barker (1988) 179 W. Va. 194, 196-198, overruled on other grounds in State v. Nichols (1999) 208 W.Va. 432, 541 S.E.2d 210. [HGN can be used to show impairment but not a particular alcohol level];
Wisconsin: State v. Zivcic (Wis. Ct. App. 1999) 229 Wis.2d 119, 128-129, [HGN is admissible with the testimony of a qualified peace officer).
Wyoming: Griffin v. State, ex rel. Wyoming Dept. of Transportation (Wyo.2000) 47 P.3d 194, 198-199, [The admissibility of scientific evidence in a court setting is governed by Wyoming Rules of Evidence section 702, as well as the four-part test required in Daubert.];
|
|
 |
Site Map
Newport Beach DUI Attorneys
Pasadena DUI Lawyers
Orange County DUI Lawyers
Santa Barbara DUI Attorneys
The information on this California Criminal Defense Attorneys / Law Firm website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.
|
|
