Tuesday, February 17, 2009

California DUI Officer May Not Offer His Opinion of One's BAC based on Nystagmus / FST Performance

People v. Loomis (1984) 156 Cal.App.3d Supp. 1 [203 Cal.Rptr. 767]

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Appellate Department, Superior Court, San Diego.

[Crim. A. No. 65544.

March 29, 1984.]

THE PEOPLE, Plaintiff and Respondent, v. STEPHEN C. LOOMIS, Defendant
and Appellant.

(Opinion by McConnell, J., with Woodworth, P. J., and Milkes, J.,


Thomas J. Warwick, Jr., and Grimes & Warwick for Defendant and Appellant.

Edwin L. Miller, Jr., District Attorney, Susan Biery and Evan Miller,
Deputy District Attorneys, for Plaintiff and Respondent.



Stephen Loomis appeals a judgment of conviction of Vehicle Code section
23152, subdivision (a) after a jury trial and an order of probation.

Loomis was driving his red Ferrari on Highway 101 in San Diego County
when he was stopped by Officer Nickelson of the California Highway
Patrol (CHP). The officer had observed Loomis make a quick U-turn on the
highway and had paced the Ferrari which drove at a speed of 70 miles per
hour and straddled the lane lines much of the time. When the officer
stopped Loomis, he observed him exiting the vehicle, swaying from side
to side. His eyes were red and watery and he had a strong odor of an
alcoholic beverage on his breath.

The officer administered a lateral gaze nystagmus test to Loomis and,
based on that test, formed an opinion as to the level of blood alcohol
in Loomis' body at the time he was stopped. The court allowed the
officer to testify not as an expert but as a lay person basing his
opinion on his training, experience, and the number of times he had
given the test.

A lateral gaze nystagmus test involves requesting the person at the time
of the stop to concentrate on an object (usually a pen) held by the
officer {Page 156 Cal.App.3d Supp. 4} slightly above the driver's eye
level. The object is held initially directly ahead of the driver's
eyeball which is centered and is looking straightforward in relation to
the head. The object is then moved toward the outside of the driver's
field of vision, toward his ear and away from his nose. The officer then
observes the onset of an involuntary oscillation of the eyeball, and
measures the angle of onset of the oscillation in relation to the center
point. The officer then calculates the blood alcohol level based upon
the angle of onset of the oscillation.

The officer testified he had been a police officer for five and one-half
years and had received 300 to 400 hours of training in the detection of
drinking drivers. He had worked for a special CHP-drinking driver detail
for almost three years. He had stopped over 2,500 people suspected of
driving under the influence and had used the lateral gaze nystagmus test
in all of those stops. He had been taught how to administer the test and
had attended refresher courses on the subject. He had arrested just
under 1,000 people for driving under the influence of alcohol and had
compared the results of his field tests against a chemical test in about
half the arrests. He stated he was within .02 percent of the chemical
test about 96 percent of the time. The officer could not recall the
names of any publications he had read or instructors on the subject.

The officer testified to his opinion, based on the above test, that
Loomis had a reaction at less than 20 degrees and estimated Loomis'
blood alcohol level between .15 and .16. The officer also testified
Loomis admitted having had a few glasses of wine and stated, "I'm drunk,
I know it, take me to jail." Loomis was advised of the requirements of
the implied consent law three times, according to the officer, but
refused to take a chemical test.

A lab technician from the sheriff's crime laboratory testified she was
aware of the lateral gaze nystagmus test and had administered it
approximately five to ten times in the last two to three years. She said
she was unable to give a blood alcohol level based on the angle of
oscillation but she did not feel it was impossible for one who had
administered the test numerous times to do so. The basis for her opinion
on this matter was not reflected in the record. In her opinion a person
had a blood alcohol level greater than .10 and was under the influence
when he showed a reaction at less than 20 degrees.

Prior to trial, the court had ordered the prosecutor to disclose the
names and addresses of all persons present at the time of the arrest and
subsequent incarceration. During the trial, the officer testified that
he had been accompanied by a citizen "ride-along" at the time of Loomis'
arrest. He further testified it was the policy of the CHP to destroy any
record of the names of {Page 156 Cal.App.3d Supp. 5} ride-alongs to
avoid any inconvenience to these citizens and specifically to avoid
having them subpoenaed to court or required to testify. The officer
stated he had not listed the name of the ride-along in the police report
in this case to prevent subpoenas. He testified it was departmental
policy to omit the identity of the ride-along from the police report and
he could not recall the name at the time of trial. The ride-along had
remained next to the police vehicle at the time of the stop and had
accompanied the officer and Loomis to the jail.

At trial defense counsel objected to the testimony of the officer on his
opinion of Loomis' blood alcohol level based on the lateral gaze
nystagmus test. The objection was overruled. Defense counsel also made a
motion to dismiss based on the intentional destruction of evidence
potentially favorable to the defendant. The motion was denied. The jury
returned a verdict of guilty and defendant was sentenced to five days in
custody and ordered to pay $600 as a condition of three years probation.

[1a] Loomis contends the trial court erred when it allowed the officer
to testify as a lay witness and give his opinion of the blood alcohol
level based on the lateral gaze nystagmus test. We agree.

[2] "A lay or nonexpert witness may testify concerning a matter in the
form of an opinion only if such opinion (a) is based on his own
perception of the facts from which his opinion is drawn; and (b) is
helpful to a clear understanding of his testimony." (2 Jefferson, Cal.
Evidence Benchbook (2d ed. 1982) p. 975.)

Evidence Code section 800 provides: "If a witness is not testifying as
an expert, his testimony in the form of an opinion is limited to such an
opinion as is permitted by law, including but not limited to an opinion
that is: (a) Rationally based on the perception of the witness; and (b)
Helpful to a clear understanding of his testimony."

It is fundamental in the law of evidence that a nonexpert witness can
only testify to those facts which he perceives with his senses. Lay
witnesses have been allowed to give opinions on subjects such as state
of intoxication, age, speed or other measurements, and other similar topics.

[1b] In the present case the officer testified to the oscillation of the
driver's pupil at a certain angle. That is certainly something he could
have perceived. What is not based on his perception, however, is the
officer's opinion that such oscillation at that angle indicates a blood
alcohol level of .12 percent. That conclusion could not possibly be
based on the officer's {Page 156 Cal.App.3d Supp. 6} own perceptions and
could be admitted only if the evidence is admissible as expert testimony.

Accordingly the trial court erred when it ruled the officer was not
testifying as an expert but could give an opinion of blood alcohol level
based on his training, experience and the number of times he had given
the nystagmus test. Even if the officer's testimony had been offered as
an expert opinion, it would have been error to allow it.

[3] In People v. Kelly (1976) 17 Cal.3d 24, 30 [130 Cal.Rptr. 144, 549
P.2d 1240], the Supreme Court stated the law with regard to
admissibility of expert testimony:

"[A]dmissibility of expert testimony based upon the application of a new
scientific technique traditionally involves a two-step process: (1) the
reliability of the method must be established, usually by expert
testimony, and (2) the witness furnishing such testimony must be
properly qualified as an expert to give an opinion on the subject.
(Citations omitted.) Additionally, the proponent of the evidence must
demonstrate that correct scientific procedures were used in the
particular case. (Citations omitted.)

"The test for determining the underlying reliability of a new scientific
technique was described in the germinal case of Frye v. United States
(D.C. Cir. 1923) 293 F. 1013, 1014, involving the admissibility of
polygraph tests: 'Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable stages is difficult
to define. Somewhere in this twilight zone the evidential force of the
principle must be recognized, and while courts will go a long way in
admitting expert testimony deduced from a well-recognized scientific
principle or discovery, the thing from which the deduction is made must
be sufficiently established to have gained general acceptance in the
particular field in which it belongs.'"

[1c] Applying this rule to the present case makes it clear the testimony
regarding Loomis' blood alcohol level based on the lateral gaze
nystagmus test was inadmissible.

It is well established in California law that a new form of evidence of
a scientific nature will be allowed only when there is a preliminary
showing of general acceptance of the new technique in the scientific
community. This rule is particularly important in a case such as this,
since the evidence of blood alcohol is usually given very great weight
by the trier of fact. We have found no authority in California law which
discusses the admissibility of testimony as to blood alcohol level based
on the test employed here, nor has any other authority been presented
from other jurisdictions. {Page 156 Cal.App.3d Supp. 7}

There is nothing in the record before us to show the reliability of the
nystagmus test has been generally accepted by recognized authorities.
The officer did not recall any writings concerning the test, and the
evidence technician from the crime laboratory appeared only slightly
familiar with the test. Loomis' counsel has appended to his brief an
article on "Alcoholic Gaze Nystagmus" fn. 1 which does not reflect
general acceptance of the test in the scientific community.

It is clear the evidence here did not meet the criteria of Kelly, supra,
17 Cal.3d 24, since neither the reliability of the method nor the
qualification of the witness as an expert on the subject was
established. Since there is no indication of general acceptance in the
scientific community of the nystagmus test as an indicator of blood
alcohol level, the evidence should have been excluded.

[4] Loomis further contends intentional destruction of evidence deprived
him of a fair trial. The evidence in this case showed the policy of the
CHP is to destroy any document indicating the name of a citizen who
rides along as an observer. The policy also mandates the omission of the
name or presence of this person at the scene from the police report. The
officer, at trial, had no recall of the name of his ride-along. At trial
Loomis moved to dismiss the complaint on the ground the suppression of
material evidence deprived him of due process of law. This motion should
have been granted.

In People v. Mejia (1976) 57 Cal.App.3d 574 [129 Cal.Rptr. 192], the
court upheld dismissal of a felony prosecution where percipient
witnesses arrested with defendant were unavailable to testify as they
had been released to immigration officials and deported. The court
stated, at page 580: "Generally speaking the People may select and
choose which witnesses they wish to use to prove their case against a
defendant. They are not, however, under principles of basic fairness,
privileged to control the proceedings by choosing which material
witnesses shall, and which shall not, be available to the accused in
presenting his defense."

The court in Cordova v. Superior Court (1983) 148 Cal.App.3d 177 [195
Cal.Rptr. 758], reaffirmed the rule set forth in Mejia, and quoting
other sources stated, at page 181: "... 'If ... state action has made a
material witness unavailable, dismissal is mandated by due process and a
defendant's constitutional right to a fair trial .... "The fundamental
due process principle ... is that the prosecution may not deprive an
accused of the opportunity to present material evidence which might
prove his innocence ...."'" (Citations omitted.) {Page 156 Cal.App.3d
Supp. 8}

The facts here are even more egregious than in the cases cited. The
record shows the police deliberately destroyed evidence of the identity
of the percipient witness to avoid subjecting that witness to the
inconvenience of having to testify in court. At least in Mejia the names
of the witnesses were retained so that a search could at least be
attempted. Here the identity of the witness was completely suppressed.
We hold that due process requires the retention of the identity of a
citizen witness who accompanies an officer on his duties. Retaining this
information would not impose a significant burden on law enforcement.

For all the above reasons the judgment of the trial court is reversed
and the case is remanded with instructions the complaint be dismissed.

Woodworth, P. J., and Milkes, J., concurred.

­FN 1. Erwin, Defense of Drunk Driving Cases (3d ed. 1983) page 8-24.