Saturday, November 27, 2010

California DUI Criminal Defense Attorney Rick Mueller specializes as a California DUI and DMV lawyer

"10" our of "10" / Superb-rated

California DUI Criminal Defense Attorney Rick Mueller specializes in California DUI and DMV law.



California DUI Lawyer Specialist Rick Mueller is the only DMV - DUI attorney who was the featured Speaker at 7 DUI seminars in San Diego County in the last several
years.

An 8th seminar, Rick lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles, California.

A 9th seminar, California Criminal Defense Attorney Rick Mueller spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

. The California criminal defense lawyers who attended indicated to the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Rick Mueller's presentation and materials were excellent.



Specially recognized as a Contributor to the California Drunk Driving Law book, he is now the San Diego DUI Editorial Consultant for the most comprehensive reference book for California DUI law. Known as California's bible for DUI defense, the book features some of San Diego DUI attorney Rick Mueller's hard work.



San Diego drunk driving lawyer Rick Mueller is a Specialist Member of the California DUI Attorneys Association (formerly the Association of California Deuce Defenders). He is also a member of the National College for DUI Defense and the National Association of Criminal Defense Lawyers.



San Diego DUI Attorney Rick Mueller speaks at Strategies in Handling DUI Cases seminars, at the DUI & Drug Defense seminar at the San Diego Bar Building, at the North San Diego County Bar Association's Drunk Driving - DMV seminars, and at the Public Defender's Office DMV - DUI Training seminars. His DMV - DUI work is also featured in the Association of California Deuce Defenders' materials. Since 1983, DUI Lawyer Rick Mueller has actively defended these cases. San Diego DUI Attorney Rick Mueller is in Good Standing with the State Bar (#114305).

Friday, November 19, 2010

Fantasy Football DUI Update - Wide Receiver Mike Williams will play Week 11 for Tampa Bay

Mike Williams will play in Week 11, but Tampa Bay Bucs will discipline him internally for last night's / Friday morning DUI arrest.

Calling it a "bad decision by an individual player," Coach Morris said a few minutes ago he is "very disappointed about the bad decision that (Williams) made to be out late and about the worse decision he made to have a drink and drive."

The club is hopeful that Williams will not be formally charged. It sounds like he may be fined, but no game-related discipline is in order.

As attorneys and lawyers line up to help this young star, California fantasy players can check their football rosters.

Williams will start Sunday's game at San Francisco despite his Friday morning DUI arrest. Either Williams passed his urine test, or the Bucs are coming up with whatever excuse possible to get him in the lineup. They'll need him. Tampa doesn't project to have a ton of success on the ground against the 49ers' top-ten run defense, and San Francisco is vulnerable in the back end. Ranked 15th among fantasy wideouts, Williams can safely be penciled into lineups.

Source

Thursday, November 18, 2010

California Drunk Driving Law Author Ed Kuwatch ran for Attorney General on 2002 platform "Don't let them micromanage your life"

A California Libertarian Party candidate, Country Lawyer Ed Kuwatch, lived on a mountaintop near Willits.

Ed ran a business called Fast Eddie Publishing and wrote a self-published book on drunk-driving laws in the state entitled: California Drunk Driving Laws, the bible for attorneys defending DUI cases.

Ed was related to our forefathers in Virginia, bred as a mainstay in protection of the California and United States Constitutions.

Ed sought to end laws that restrict the right to bear arms and wanted to limit three-strikes cases to apply only to California violent offenders.

Ed was eternally passionate about what he did, helping common folks and lawyers alike in the battle against Big Brother, MADD and overzealous California DUI attorney prosecutors.

But he did not raise money or campaign around California. He figured he'd put together some bumper stickers with his catchy campaign slogan:

"Don't let them micromanage your life."

For those who knew Ed, they loved him, admired him, and think of him everyday to this day.

Wednesday, November 17, 2010

How CHP trains its DUI officers to ask questions without violating Miranda Rights

CHP DUI Enforcement Manual, California, states:

Officers should ask a series of pre-(field sobriety) test questions.

These questions are designed to illicit (sic) information that will assist the officer in developing an opinion as to alcohol and/or drug impairment.

The questions contained on page 2 of the CHP 202, DUI Arrest-Investigation Report, may be asked without a Miranda admonition during a California DUI investigative detention.

However, if the driver is placed under arrest, California CHP DUI officers shall advise him/her of his/her Miranda rights prior to asking any questions intended to solicit incriminating statements.

[If they do not, DUI criminal defense lawyers will move to suppress those statements.]

California Drunk Driving defense attorneys have access to this excerpt and the entire DUI enforcement manual used by the California Highway Patrol.

If arrested for drunk driving off road or off the freeway, or not on the highway, what does that mean? California Vehicle Code & DUI

If arrested for drunk driving off road or off the freeway, or not on the highway, what does that mean? California DUI attorneys refer to the Vehicle Code for definitions:

332. "Freeway" is a highway in respect to which the owners of
abutting lands have no right or easement of access to or from their
abutting lands or in respect to which such owners have only limited
or restricted right or easement of access.

360. "Highway" is a way or place of whatever nature, publicly
maintained and open to the use of the public for purposes of
vehicular travel. Highway includes street.

590. "Street" is a way or place of whatever nature, publicly
maintained and open to the use of the public for purposes of
vehicular travel. Street includes highway.

Tuesday, November 16, 2010

No independent DUI judge to offer some protection, you are strongly advised not to try to represent yourself

Because there is no Fifth Amendment Privilege against self-incrimination at a California DMV hearing, your DMV attorney usually will not want you to be present at the hearing. Why not? The Driver Safety Officer can unfortunately call you as a witness and have you to testify against yourself if you show. And they're trained to discredit you and instructed to develop inconsistencies.

Guess what? There's no independent DUI judge to offer some protection, you are strongly advised not to try to represent yourself.

A DUI attorney has just 10 CALENDAR DAYS after the DUI arrest to call the California DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing if the 10 day deadline expires.

Monday, November 15, 2010

FST's admitted into evidence in a DUI case only as circumstantial evidence of intoxication or impairment but not as direct evidence of specific BAC

185 F. Supp. 2d 530,

UNITED STATES v. ERIC D. HORN

CRIMINAL ACTION NO. 00-946-PWG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

185 F. Supp. 2d 530; 2002 U.S. Dist. LEXIS 1712

DISPOSITION: The results of properly administered WAT, OLS and HGN SFSTs may be admitted into evidence in a DWI/DUI case only as circumstantial evidence of intoxication or impairment but not as direct evidence of specific BAC. The government may prove the causal connection between exaggerated HGN in Horn's eyes and alcohol consumption.

CASE SUMMARY:
PROCEDURAL POSTURE: Defendant army sergeant was arrested for driving while allegedly intoxicated when he attempted to enter an army facility. He filed a motion in limine to exclude the evidence of his performance on the field sobriety tests, asserting that it was inadmissible under Fed. R. Evid. 702 and the Daubert/Kumho Tire tests. Plaintiff government opposed the motion, and a two-day evidentiary hearing was held pursuant to Fed. R. Civ. P. 104(a).

OVERVIEW: In a case of first impression, the federal court had to apply the newly revised Fed. R. Evid. 702 and the Daubert/Kumho tests to the (1) horizontal gaze nystagmus test, (2) the walk and turn test, and (3) the one leg stand test, also known as the three standard field sobriety tests (SFSTs). At issue was the nature of the testimony that the officer administering the SFSTs could give and how the results of the SFSTs could be used. In turning to state court decisions on the latter issue, the results of the SFSTs could not be used as direct evidence of intoxication. The court took issue with the degree of their general acceptance within an unbiased scientific or technical community. He found the tests, used singly or in combination, had not been shown to be as reliable as asserted, either in earlier expert testimony or in National Highway Transportation Safety Administration publications. Any testimony made by the arresting officer had to be limited to lay opinion testimony in compliance with Fed. R. Evid. 701. It could not use a scientific or technical basis thereby becoming expert testimony under Fed. R. Evid. 702.

OUTCOME: The results of properly administered standard field sobriety tests may be admitted only as circumstantial evidence of intoxication or impairment after the officer has established his qualifications to administer them. The causal connection between exaggerated horizontal gaze nystagmus in the sergeant's eyes may be proven by several means. An arresting officer could give lay opinion testimony in compliance with the Federal Rules of Evidence.

CORE TERMS: reliability, scientific, reliable, admissibility, nystagmus, driving, alcohol, impairment, driver, clue, judicial notice, admissible, standardized, sobriety, accuracy, intoxicated, intoxication, police officer, general acceptance, exaggerated, validation, manual, methodology, testing, alcohol consumption, final report, training, influence of alcohol, specialized, ingestion

LexisNexis(R) Headnotes

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Implied Consent > Refusals to Submit
HN1Go to this Headnote in the case. Under Md. Code. Ann., Cts. & Jud. Proc. § 10-309 (1998 Repl. Vol. & 2001 Supp.), a party detained for suspected driving under the influence had the right to refuse to take a Breathalyzer test.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
HN2Go to this Headnote in the case. See Md. Code Ann., Transp. II § 21-902.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Criminal Law & Procedure > Arrests > Probable Cause
HN3Go to this Headnote in the case. The results of properly conducted standard field sobriety tests may be considered to determine whether probable cause exists to charge a driver with driving while intoxicated or under the influence of alcohol.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Probable Cause
Evidence > Scientific Evidence > Sobriety Tests
HN4Go to this Headnote in the case. To establish probable cause to arrest a suspect all that is required is reasonably trustworthy information that would support a reasonable belief that the suspect committed an offense. Probable cause determinations turn on practical, nontechnical determinations. Thus, regardless of whether standard field sobriety tests are admissible as evidence, they may establish probable cause to arrest a motorist for driving while intoxicated or driving under the influence of alcohol.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Evidence > Procedural Considerations > Exclusion & Preservation by Prosecutor
HN5Go to this Headnote in the case. The results of the standard field sobriety tests, either individually or collectively, are not admissible for the purpose of proving the specific blood alcohol content of a driver charged with driving while intoxicated or driving under the influence of alcohol.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Judicial Notice > General Overview
HN6Go to this Headnote in the case. There is a well-recognized, but by no means exclusive, causal connection between the ingestion of alcohol and the detectable presence of exaggerated horizontal gaze nystagmus in a person's eyes, which may be judicially noticed by the court pursuant to Fed. R. Evid. 201, proved by expert testimony or otherwise.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Elements
Evidence > Procedural Considerations > Circumstantial & Direct Evidence
HN7Go to this Headnote in the case. A police officer trained and qualified to perform standard field sobriety tests (SFSTs) may testify with respect to his or her observations of a subject's performance of these tests, if properly administered, to include the observation of nystagmus, and these observations are admissible as circumstantial evidence that the defendant was driving while intoxicated or under the influence. In so doing, however, the officer may not use value-added descriptive language to characterize the subject's performance of the SFSTs, such as saying that the subject failed the test or exhibited a certain number of standardized clues during the test.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Criminal Law & Procedure > Trials > Examination of Witnesses > Cross-Examination
Evidence > Judicial Notice > General Overview
HN8Go to this Headnote in the case. If the government introduces evidence that a defendant exhibited nystagmus when the officer performed the horizontal gaze nystagmus test, the defendant may bring out either during cross examination of the prosecution witnesses or by asking the court to take judicial notice of the fact that there are many causes of nystagmus other than alcohol ingestion.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Testimony > Lay Witnesses > Opinion Testimony > Helpfulness
Evidence > Testimony > Lay Witnesses > Opinion Testimony > Nonspecialized Knowledge
HN9Go to this Headnote in the case. If otherwise admissible under Fed. R. Evid. 701, a police officer may give lay opinion testimony that a defendant was driving while intoxicated or under the influence of alcohol. In doing so, however, the officer may not bolster the lay opinion testimony by reference to any scientific, technical or specialized information learned from law enforcement or traffic safety instruction, but must confine his or her testimony to helpful firsthand observations of the defendant.

Evidence > Procedural Considerations > Rule Application & Interpretation
Military & Veterans Law > Military Justice > Jurisdiction > Assimilation
HN10Go to this Headnote in the case. The Assimilative Crimes Act (Act), 18 U.S.C.S. §§ 7, 13, does not generally adopt state procedures and federal, rather than state, rules of evidence are applicable under the Act.

Evidence > Privileges > General Overview
Evidence > Procedural Considerations > Preliminary Questions > Admissibility of Evidence > Existence of Privileges
Evidence > Procedural Considerations > Preliminary Questions > Admissibility of Evidence > Witness Qualifications
HN11Go to this Headnote in the case. Fed. R. of Evid. 104(a) requires a court to make preliminary determinations regarding the admissibility of evidence, the qualifications of witnesses and the existence of privileges, and Rule 104(a) now permits a court to make definitive pretrial evidentiary rulings in limine. During Rule 104(a) hearings the rules of evidence, except those dealing with privileges, are inapplicable, permitting a court greater latitude to consider affidavits. Fed. Rules of Evid. 104(a), 1101(d)(1).

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Evidence > Procedural Considerations > Exclusion & Preservation by Prosecutor
HN12Go to this Headnote in the case. Whether the results of standard field sobriety tests are admissible depends first on the purpose for which they are offered. Fed. Rule of Evid. 105.

Evidence > Relevance > Confusion, Prejudice & Waste of Time
Evidence > Relevance > Relevant Evidence
HN13Go to this Headnote in the case. The standard field sobriety tests must be relevant and not excessively prejudicial for the purposes offered. Fed. Rules of Evid. 401, 403.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > Daubert Standard
HN14Go to this Headnote in the case. If the standard field sobriety tests (SFSTs) are introduced by the testimony of a sponsoring witness who is testifying as to scientific, technical or specialized matters, the admissibility of the SFSTS is dependent on whether the witness's testimony meets the requirements of newly revised Fed. Rule of Evid. 702 and the Daubert/Kumho standards.

Evidence > Procedural Considerations > Rule Application & Interpretation
HN15Go to this Headnote in the case. Fed. Rule of Evid. 102 emphasizes that interpretations of the rules of evidence should be made with an eye towards promptly, fairly, efficiently and inexpensively adjudicating cases.

Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > Criminal Trials
HN16Go to this Headnote in the case. Fed. R. Evid. 702 permits testimony in the form of an opinion or otherwise regarding scientific, technical or specialized matters from a qualified expert, provided the testimony is based on (1) sufficient facts or data, (2) is the result of methods or principles that are reliable, and (3) is the result of reliable application of the methods or principles to the facts of the particular case. These three requirements, added in December 2000, are complimentary to, but not identical with, the four non-exclusive evaluative factors identified by the United States Supreme Court in the Daubert/Kumho tests. The factors in those tests are (1) whether the opinions offered are testable, (2) whether the methods or principles used to reach the opinions have been subject to peer review evaluation, (3) whether a known error rate can be identified with respect to the methods or principles underlying the opinion, and, finally, (4) whether the opinion rests on methodology that is generally accepted within the relevant scientific or technical community.

Evidence > Procedural Considerations > Exclusion & Preservation by Prosecutor
Evidence > Procedural Considerations > Preliminary Questions > General Overview
Evidence > Scientific Evidence > General Overview
HN17Go to this Headnote in the case. A court must, under Fed. R. Evid. 104(a), act as the gatekeeper to decide whether the evidence is reliable and admissible. The court, however, is limited in its ability to do so by the quantitative and qualitative nature of the evidence produced by the parties, whatever research the court itself may do, and any help it may derive from courts that have addressed the issue before it. This process unavoidably takes place on a continuum, and a court faced with the present task of deciding the admissibility of scientific evidence must exercise care to consider whether new developments or evidence require a reevaluation of the conclusions previously reached by courts that did not have the benefit of the more recent information. In short, neither science and technology may rest on past accomplishments--nor may the courts.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Elements
HN18Go to this Headnote in the case. See Md. Code Ann., Cts. & Jud. Proc. § 10-307 (1998 Repl. Vol.).

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Elements
HN19Go to this Headnote in the case. A blood alcohol concentration between 0.07 and 0.08 will be prima facie evidence that the person was driving while impaired by alcohol. If the person's blood alcohol content is .08 or higher, the defendant shall be considered under the influence of alcohol per se. Md. Code Ann., Cts. & Jud. Proc. § 10-307(d), (g) (2001 Supp.).

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > General Overview
Evidence > Testimony > Experts > General Overview
HN20Go to this Headnote in the case. Fed. R. Evid. 702 prohibits expert testimony if it is not the product of reliable methods or principles that reliably have been applied to the facts of the particular case. In the context of scientific or technical testing, such as may be the case with standardized field sobriety tests (SFSTs), reliability means the ability of a test to be duplicated, producing the same or substantially same results when successively performed under the same conditions. Thus, for the SFSTs, if reliable, it would be expected that different officers, viewing the same suspect performing the SFSTs, would reach the same conclusion regarding the level of the suspect's impairment or intoxication. Alternatively, the same officer retesting the same suspect with the same blood alcohol as when first tested would reach the same conclusion.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Evidence > Scientific Evidence > Daubert Standard
HN21Go to this Headnote in the case. In terms of admissibility, a scientific or technical test is valid if it has a logical nexus with the issue to be determined in a case. In the context of standardized field sobriety tests, they are valid if there is a logical nexus between what the tests measure and the true ability of a driver safely to operate a motor vehicle.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Testimony > Experts > General Overview
HN22Go to this Headnote in the case. The third evaluative factor of Fed. R. Evid. 702 requires that the expert's opinion testimony be based on the use of principles/methods themselves reliable but that also reliably have been applied to the facts of the particular case.

Evidence > Testimony > Experts > General Overview
HN23Go to this Headnote in the case. The fact that officers may not perform the standardized field sobriety tests properly in the field has special significance when evaluated under Fed. R. Evid. 702, as the third factor in that rule requires the court to find that the opinion testimony is based on reliable methods or principles that reliably were applied to the facts of the particular case. Thus, if reliable methods exist, but are not used in a particular instance, the results of the misapplication of the methodology are not admissible.

Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > Daubert Standard
Evidence > Testimony > Experts > Kelly-Frye Process
HN24Go to this Headnote in the case. In federal court, under the most recent version of Fed. R. Evid. 702 and the Daubert/Kumho tests, the proponent of any expert testimony, whether scientific, technical or the product of some specialized knowledge, must undertake an analysis of reliability of the methods/principles underlying the opinion, as well as the reliability of the application of the methodology used by the expert to the particular facts of the case.

Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > Admissibility
Evidence > Testimony > Experts > Daubert Standard
HN25Go to this Headnote in the case. The 2000 amendment to Fed. R. Evid. 702 added three additional foundational requirements before expert testimony in any subject, whether scientific, technical or other specialized knowledge, is admissible. The opinion must be based on sufficient facts or data. It must be the product of methods and principles shown to be reliable. The proponent must show that the methods/principles reliably had been applied to the facts of the case at hand. These factors are required by the rule itself and are independent from the factors identified by the United States Supreme Court in the Daubert/Kumho tests.

Evidence > Judicial Notice > Adjudicative Facts > Verifiable Facts
HN26Go to this Headnote in the case. The doctrine of judicial notice is predicated upon the assumption that the source materials from which the court takes judicial notice are reliable.

Evidence > Judicial Notice > Adjudicative Facts > Facts Generally Known
Evidence > Judicial Notice > Adjudicative Facts > Verifiable Facts
HN27Go to this Headnote in the case. Fed. R. Evid. 201 permits the taking of judicial notice of adjudicative facts if (1) the facts are generally known within the territorial jurisdiction of the court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Civil Procedure > Appeals > Reviewability > General Overview
Evidence > Judicial Notice > Adjudicative Facts > General Overview
HN28Go to this Headnote in the case. Fed. R. Evid. 201(e) permits a party to be heard on the propriety of taking judicial notice.

Evidence > Judicial Notice > Adjudicative Facts > General Overview
HN29Go to this Headnote in the case. Fed. R. Evid. 201(g) provides that in criminal cases, the court must instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noted. Implicitly, the rule permits a defendant in a criminal case to offer evidence to rebut any adjudicative fact noticed by the court.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Judicial Notice > General Overview
HN30Go to this Headnote in the case. Expedient as it may be for courts to take judicial notice of scientific or technical matters to resolve the crush of driving while intoxicated or under the influence of alcohol cases, this cannot be done in the face of legitimate challenges to the reliability and accuracy of the tests sought to be judicially noticed.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Procedural Considerations > Circumstantial & Direct Evidence
HN31Go to this Headnote in the case. Most of the states that have ruled that horizontal gaze nystagmus evidence is admissible have not allowed it to be used to prove specific blood alcohol content but instead only as circumstantial proof of intoxication or impairment.

Evidence > Scientific Evidence > Daubert Standard
HN32Go to this Headnote in the case. Under the Daubert decision, the parties and the trial court are forced to reckon with the factors that really do determine whether the evidence is reliable, relevant and fits the case at issue.

Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > Daubert Standard
Evidence > Testimony > Experts > Kelly-Frye Process
HN33Go to this Headnote in the case. Daubert's focus upon multiple criteria for scientific validity compels the lower courts to abandon long existing per se rules of admissibility or inadmissibility grounded upon the Frye standard.

Evidence > Testimony > Experts > Criminal Trials
HN34Go to this Headnote in the case. If offered only as circumstantial evidence of intoxication/impairment, the horizontal gaze nystagmus test still clearly invokes scientific and technical underpinnings.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Judicial Notice > General Overview
Evidence > Procedural Considerations > Circumstantial & Direct Evidence
HN35Go to this Headnote in the case. It cannot be disputed that there is a sufficient factual basis to support the causal connection between observable exaggerated horizontal gaze nystagmus (HGN) in a suspect's eye and the ingestion of alcohol by that person. This connection is so well established that it is appropriate to be judicially noted under Fed. R. Evid. 201. That being said, however, it must quickly be added that there also are many other causes of nystagmus that are unrelated to alcohol consumption. Thus, the detectable presence of exaggerated HGN in a driver clearly is circumstantial, not direct, evidence of alcohol consumption.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Judicial Notice > Adjudicative Facts > General Overview
HN36Go to this Headnote in the case. The existence of a causal connection between alcohol ingestion and observable horizontal gaze nystagmus is the type of discrete adjudicative fact that properly may be judicially noticed under Fed. R. Evid. 201 because it is a fact that can be accurately and readily determined by resort to sources whose accuracy cannot reasonably be questioned.

Evidence > Scientific Evidence > General Overview
Evidence > Testimony > Experts > General Overview
HN37Go to this Headnote in the case. A police officer is unlikely to have the qualifications needed to testify under Fed. R. Evid. 702 as to the scientific principles underlying the horizontal gaze nystagmus (HGN) test or as to whether there is a causal link between alcohol use and exaggerated nystagmus. The police officer will, of course, be qualified to testify as to the training received in how to administer the HGN test, and to demonstrate his or her qualifications properly to administer it.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Hearsay > Exceptions > Learned Treatises > Expert Witness Requirement
Evidence > Judicial Notice > General Overview
HN38Go to this Headnote in the case. The fact that there are many other causes of nystagmus in the human eye also is the type of adjudicative fact that may be judicially noticed under Fed. R. Evid. 201. Thus, the defendant in a driving while intoxicated or driving under the influence of alcohol case may ask the court to judicially notice this fact, once the government has proved the causal connection between alcohol ingestion and exaggerated nystagmus. Alternatively, the defendant may seek to prove the non-alcohol related causes of nystagmus by other means, such as the testimony of an expert witness, cross examination of any such witness called by the government or through a properly admitted learned treatise. Fed. R. Evid. 803(18).

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > General Overview
Evidence > Demonstrative Evidence > Foundational Requirements
Evidence > Procedural Considerations > Exclusion & Preservation by Prosecutor
HN39Go to this Headnote in the case. The early National Highway Traffic Safety Administration laboratory tests were too limited to support the claims of accuracy, and the subsequent field and validation testing insufficient to establish the reliability and validity of the tests if used to establish specific blood alcohol content (BAC). Indeed, the great weight of the state authority, including that in Maryland, agrees that BAC levels may not be proved by standard field sobriety test results alone.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > Daubert Standard
HN40Go to this Headnote in the case. To permit a police officer to testify about each of the standard field sobriety tests in detail, their claimed accuracy rates, the number of standardized clues applicable to each, the number of clues exhibited by the suspect, and then offer an opinion about whether he or she passed or failed, stopping just short of expressing an opinion as to specific blood alcohol content, invites the risk of allowing through the back door of circumstantial proof evidence that is not reliable enough to enter through the front door of direct proof of intoxication or impairment. Such testimony clearly is technical, if not scientific, and may not be admitted unless shown to be reliable under the standards imposed by Fed. R. Evid. 702 and Daubert/Kumho tests.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Procedures
Evidence > Scientific Evidence > Daubert Standard
HN41Go to this Headnote in the case. The Maryland Court of Special Appeals describes field sobriety tests--other than the horizontal gaze nystagmus test--administered by police to motorists as follows. Field sobriety tests are essentially personal observations of a police officer which determine a suspect's balance and ability to speak with recollection. There is nothing new or perhaps even scientific about the exercises that an officer requests a suspect to perform. Those sobriety tests have been approved by the National Highway Traffic Safety Administration and are simply guidelines for police officers to utilize in order to observe more precisely a suspect's coordination. It requires no particular scientific skill or training for a police officer, or any other competent person, to ascertain whether someone performing simple tasks is to a degree affected by alcohol. The field sobriety tests are designed to reveal objective information about a driver's coordination. The Frye-Reed test does not apply to those field sobriety tests because the latter are essentially empirical observations, involving no controversial, new or scientific technique. Their use is guided by practical experience, not theory.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Procedures
Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > General Overview
HN42Go to this Headnote in the case. When testifying about the standard field sobriety tests, a police officer must be limited to describing the procedure administered and the observations of how the defendant performed it, without resort to terms such as test, standardized clues, pass or fail, unless the government first has established a foundation that satisfies Fed. R. Evid. 702 and the Daubert/Kumho factors regarding the reliability and validity of the scientific or technical underpinnings of the National Highway Transportation Administration assertions that there are a stated number of clues that support an opinion that the suspect has failed the test.

Criminal Law & Procedure > Trials > Examination of Witnesses > General Overview
Evidence > Testimony > Lay Witnesses > Opinion Testimony > General Overview
HN43Go to this Headnote in the case. A police officer may express an opinion as a lay witness that the defendant was intoxicated or impaired, if otherwise admissible under Fed. R. Evid. 701. As recently amended, Rule 701 permits lay opinion testimony if (a) rationally based upon the perception of the witness, (b) helpful to the fact finder and (c) if the opinion does not involve scientific, technical or specialized information. There is near universal agreement that lay opinion testimony about whether someone was intoxicated is admissible if it meets the above criteria.

Civil Procedure > Judicial Officers > Judges > Discretion
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > General Overview
Evidence > Testimony > Lay Witnesses > Opinion Testimony > Nonspecialized Knowledge
HN44Go to this Headnote in the case. In driving while intoxicated or under the influence of alcohol (DWI/DUI).cases, the third requirement of Fed. R. Evid. 701, that the lay opinion is not based on scientific, technical, or other specialized knowledge, will take on great importance. A police officer certainly may testify about his or her observations of a defendant's appearance, coordination, mood, ability to follow instructions, balance, the presence of the smell of an alcoholic beverage, as well as the presence of exaggerated horizontal gaze nystagmus, and the observations of the defendant's performance of the standard field sobriety tests. The officer should not, however, be permitted to interject technical or specialized comments to embellish the opinion based on any special training or experience he or she has in investigating DWI/DUI cases. Just where the line should be drawn must be left to the discretion of the trial judge, but the officer's testimony under Rule 701 must not be allowed to creep from that of a layperson to that of an expert--and the line of demarcation is crossed if the opinion ceases to be based on observation and becomes one founded on scientific, specialized or technological knowledge.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Admissibility
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Elements
Evidence > Scientific Evidence > Sobriety Tests
HN45Go to this Headnote in the case. The results of properly administered walk and turn, one leg stand, and horizontal gaze nystagmus standard field sobriety tests may be admitted into evidence in a driving while intoxicated or under the influence of alcohol case only as circumstantial evidence of intoxication or impairment but not as direct evidence of specific blood alcohol content.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobriety > Procedures
Evidence > Scientific Evidence > General Overview
Evidence > Testimony > General Overview
HN46Go to this Headnote in the case. Unless qualified as an expert witness under Fed. R. Evid. 702 to express scientific or technical opinions regarding the reliability of the methods and principles underlying the standard field sobriety tests, the arresting officer's foundational testimony will be limited to the instruction and training received and experience he has in administering the tests and may not include opinions about the tests' accuracy rates. If the officer testifies about the results of the horizontal gaze nystagmus (HGN) test, he may testify as to his qualifications to detect exaggerated HGN, and his observations of exaggerated HGN in the Horn, but may not, absent being qualified under Rule 702 to do so, testify as to the causal nexus between alcohol consumption and exaggerated HGN.

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Scientific Evidence > Daubert Standard
Evidence > Testimony > Experts > General Overview
HN47Go to this Headnote in the case. When testifying about an arrestee's performance of the standard field sobriety test (SFSTs), the arresting officer may describe the SFSTs he required the arrestee to perform and describe his performance. But the officer may not use language such as test, standardized clues or express the opinion that the arrestee passed or failed absent a showing by the government that under Fed. R. Evid. 702 or the Daubert/Kumho test, the conclusions were based on sufficient facts or data and are derived from reliable methods or principles.

Evidence > Hearsay > Exceptions > Learned Treatises > Expert Witness Requirement
Evidence > Judicial Notice > General Overview
Evidence > Testimony > Experts > Criminal Trials
HN48Go to this Headnote in the case. The government may prove the causal connection between exaggerated horizontal gaze nystagmus (HGN) in the arrestee's Horn's eyes and alcohol consumption by one of the following means: (1) asking the court to take judicial notice of it under Fed. R. Evid. 201, (2) the testimony of an expert qualified under Fed. R. Evid. 702, or (3) through learned treatises, introduced in accordance with Fed. R. Evid. 803(18). In response to proof of the causal connection between alcohol consumption and exaggerated HGN, the arrestee may prove that there are other causes of HGN than alcohol by one of the following methods: (1) asking the court to take judicial notice of this fact under Rule 201; (2) cross-examining any expert called by the government; by calling a defense expert witness, qualified under Rule 702, or (3) through leaned treatises, introduced in accordance with Rule 803(18).

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Abuse of Public Office > Illegal Gratuities > Elements
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview
Evidence > Testimony > Lay Witnesses > Opinion Testimony > Nonspecialized Knowledge
HN49Go to this Headnote in the case. If the government can establish the elements of Fed. R. Evid. 701, the arresting officer may give lay opinion testimony that the arrestee Horn was intoxicated or impaired by alcohol. Such testimony must be based on his observations of the arrestee and may not include scientific, technical or specialized information.


COUNSEL: [**1] ERIC D. HORN, defendant, Pro se, APG, MD.

JUDGES: Paul W. Grimm, United States Magistrate Judge.

OPINIONBY: Paul W. Grimm

OPINION: [*532]

MEMORANDUM AND ORDER

At approximately 10:35 p.m. on June 28, 2000, Sergeant Eric D. Horn attempted to enter the Harford Road gate of the Army facility located at Aberdeen Proving Ground, Maryland. Officer Daniel L. Jarrell stopped Horn's vehicle for an identification check. As a result of his observations of Horn, Jarrell suspected that Horn was driving under the influence of alcohol, and he was detained and questioned. Three standard field sobriety tests ("SFSTs") were administered: the "walk and turn" test, the "one leg stand" test and the "horizontal gaze nystagmus" test. n1 As a result of his performance on these tests, Horn was charged with driving while intoxicated under Md. Code Ann., Transp. II § 21-902 (1999 Repl. Vol.), n2 as assimilated by 18 U.S.C. §§ 7, 13, the Assimilative Crimes Act, a Class A misdemeanor.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 HN1Go to the description of this Headnote.Horn was given the opportunity to take a Breathalyzer test but refused, as he is entitled to do under Maryland law. Md. Code Ann., Cts & Jud. Proc. § 10-309 (1998 Repl. Vol. & 2001 Supp.). [**2]



n2 At the time of Horn's arrest, HN2Go to the description of this Headnote.Md. Code Ann., Transp. II § 21-902 stated in pertinent part:

(a) Driving while intoxicated or intoxicated per se. -- (1) A person may not drive or attempt to drive any vehicle while intoxicated.

(2) A person may not drive or attempt to drive any vehicle while the person is intoxicated per se.

(b) Driving while under the influence of alcohol. -- A person may not drive or attempt to drive any vehicle while under the influence of alcohol.

Effective September 30, 2001, § 21-902 was amended; a person is now charged with either (a) driving under the influence of alcohol or under the influence of alcohol per se or (b) driving while impaired by alcohol. Md. Code Ann., Transp. II § 21-902 (2001 Supp.). Subsection(a), driving under the influence, is now the most serious charge. The change in lexicon is a result partly because of the change in the level of proof, in the form of blood alcohol content results obtained from Breathalyzer tests, needed to convict under each subsection. For purposes of this opinion, this Court will continue to employ the driving while intoxicated and driving while under the influence language prevalent in most state court opinions.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**3]

Horn has filed a motion in limine to exclude the evidence of his performance on the field sobriety tests, asserting that it is inadmissible under newly revised Fed. R. Evid. 702 and the Daubert/Kumho Tire decisions. n3 The Government has filed an opposition, and Horn has filed a reply. In addition, a two day evidentiary hearing was held, pursuant to Fed. R. Evid. 104(a), on November 19 and 20, 2001, and additional testimonial and documentary evidence was received, which is discussed in detail below. At the conclusion of this hearing, the following ruling was made from the bench, the Court also announcing its intention subsequently to issue a written opinion on this case of first impression: n4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n3 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999).


n4 Research has not revealed any other federal case on this subject applying newly revised Rule 702 and the Daubert/Kumho Tire tests. There have been a few prior federal cases to consider the admissibility of horizontal gaze nystagmus evidence but never with the factual record of this case or a challenge to this evidence such as rendered here. See, e.g., United States v. Daras, 1998 U.S. App. LEXIS 26552, 1998 WL 726748 (4th Cir. 1998)(unpublished opinion) (court discussed in passing the SFSTs but did not analyze their admissibility as scientific or technical evidence because the evidence exclusive of the tests was sufficient to establish the defendant's guilt); United States v. Ross, CR No. 97-972M (D. Md. February 9, 2000)(unpublished memorandum order, in which Judge Connelly of this Court commented with his characteristic thoroughness and thoughtfulness on the state court decisions and narrowly held that SFST evidence is sufficient to establish probable cause to administer a breathalyzer test); United States v. Everett, 972 F. Supp. 1313 (D. Nev. 1997) (holding that "drug recognition examiner" testimony was governed by Rule 702 but not by Daubert on the basis that the testimony was not scientific in nature but utilizing the Daubert factors in analyzing the evidence).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**4]

(1) HN3Go to the description of this Headnote.The results of properly conducted SFSTs may be considered to determine [*533] whether probable cause exists to charge a driver with driving while intoxicated ("DWI") or under the influence of alcohol ("DUI"); n5

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n5 Horn did not contest the Government's entitlement to rely on the results of properly conducted SFSTs for probable cause determinations related to DWI/DUI charges. HN4Go to the description of this Headnote.To establish probable cause to arrest a suspect all that is required is reasonably trustworthy information that would support a reasonable belief that the suspect committed an offense. Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964). Probable cause determinations turn on practical, nontechnical determinations. Id. Thus, regardless of whether SFSTs are admissible as evidence, they may establish probable cause to arrest a motorist for DWI/DUI.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

(2) HN5Go to the description of this Headnote.The results of the SFSTs, either individually or collectively, are not admissible for the purpose of proving the specific blood alcohol content ("BAC") of [**5] a driver charged with DWI/DUI; n6

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n6 The Government acknowledged during the Rule 104(a) hearing that it was not seeking to admit the results of the SFSTs to prove Horn's specific BAC. Nonetheless, this opinion must discuss the admissibility of the SFSTs for this purpose to fully explain the ruling made regarding their use as circumstantial evidence of intoxication or impairment.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

(3) HN6Go to the description of this Headnote.There is a well-recognized, but by no means exclusive, causal connection between the ingestion of alcohol and the detectable presence of exaggerated horizontal gaze nystagmus in a person's eyes, n7 which may be judicially noticed by the Court pursuant to Fed. R. Evid. 201, proved by expert testimony or otherwise;

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n7 As will be discussed below, nystagmus always is present in the human eye but certain conditions, including alcohol ingestion, can cause an exaggeration of the nystagmus such that it is more readily observable. In this opinion, use of the phrase "nystagmus" or "horizontal gaze nystagmus" being "caused" by alcohol refers to the exaggeration of this natural condition and does not suggest, absent any alcohol, there would not be any nystagmus at all.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**6]

(4) HN7Go to the description of this Headnote.A police officer trained and qualified to perform SFSTs may testify with respect to his or her observations of a subject's performance of these tests, if properly administered, to include the observation of nystagmus, and these observations are admissible as circumstantial evidence that the defendant was driving while intoxicated or under the influence. In so doing, however, the officer may not use value-added descriptive language to characterize the subject's performance of the SFSTs, such as saying that the subject "failed the test" or "exhibited" a certain number of "standardized clues" during the test;

(5) HN8Go to the description of this Headnote.If the Government introduces evidence that a defendant exhibited nystagmus when the officer performed the horizontal gaze nystagmus test, the defendant may bring out either during cross examination of the prosecution witnesses or by asking the Court to take judicial notice of the fact that there are many causes of nystagmus other than alcohol ingestion; and

(6) HN9Go to the description of this Headnote.If otherwise admissible under Fed. R. Evid. 701, a police officer may give lay opinion testimony that a defendant was driving while intoxicated or under the influence of alcohol. In doing so, however, the officer [**7] may not bolster the lay opinion testimony by reference to any scientific, [*534] technical or specialized information learned from law enforcement or traffic safety instruction, but must confine his or her testimony to helpful firsthand observations of the defendant.

The issues addressed in this case likely will recur, given the large number of Class A and B misdemeanors prosecuted in this district under the Assimilative Crimes Act. Moreover, the admissibility of SFSTs implicates recent changes to the federal rules of evidence, as well as a large body of state cases on this topic, primarily decided under a different evidentiary standard than that governing the admissibility of the results of SFSTs in federal court. n8 Accordingly, this opinion will discuss the basis for the above rulings in more detail below.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n8 See, e.g., Kay v. United States, 255 F.2d 476 (4th Cir. 1958) HN10Go to the description of this Headnote.(The Assimilative Crimes Act "does not generally adopt state procedures . . . and federal, rather than state, rules of evidence are applicable under the Act."); U.S. v. Sauls, 981 F. Supp. 909, 915 (D. Md. 1997).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**8]

1. Applicable Rules of Evidence

HN11Go to the description of this Headnote.Fed. R. of Evid. 104(a) requires the Court to make preliminary determinations regarding the admissibility of evidence, the qualifications of witnesses and the existence of privileges, and Rule 104(a) now permits the Court to make definitive pretrial evidentiary rulings in limine. During Rule 104(a) hearings the rules of evidence, except those dealing with privileges, are inapplicable, permitting the Court greater latitude to consider affidavits such as those filed by Horn and the Government. Fed. Rules of Evid. 104(a), 1101(d)(1).

HN12Go to the description of this Headnote.Whether the results of SFSTs are admissible depends first on the purpose for which they are offered. Fed. Rule of Evid. 105. Second, HN13Go to the description of this Headnote.the SFSTS must be relevant and not excessively prejudicial for the purposes offered. Fed. Rules of Evid. 401, 403. Third, HN14Go to the description of this Headnote.if the SFSTs are introduced by the testimony of a sponsoring witness who is testifying as to scientific, technical or specialized matters, the admissibility of the SFSTS is dependent on whether the witness's testimony meets the requirements of newly revised Fed. Rule of Evid. 702 and the Daubert/Kumho Tire standards. Finally, HN15Go to the description of this Headnote.Fed. Rule of Evid. 102 emphasizes [**9] that interpretations of the rules of evidence should be made with an eye towards promptly, fairly, efficiently and inexpensively adjudicating cases.

In this case, the results of SFSTs potentially could be offered for the following purposes: (1) to establish probable cause to arrest and charge a defendant with DWI/DUI, (2) as direct evidence of the specific BAC of a defendant who performed the SFSTs or (3) as circumstantial proof that a defendant was driving while intoxicated or under the influence of alcohol. Horn has acknowledged that the tests may be used to determine probable cause, as the overwhelming majority of cases have held, n9 and the Government acknowledges that they are not admissible to prove the defendant's specific BAC, a conclusion almost universally reached by state courts, including Maryland. n10 Accordingly, the task at hand is to determine to what extent the results of SFSTs are admissible as circumstantial proof that a driver has consumed alcohol and was driving while intoxicated or under its influence. Because the results of the SFSTs invariably are introduced by the testimony of an arresting [*535] police officer, and, as will be seen, may involve application of scientific, [**10] technical or other specialized information, the requirements of Rule 702, as recently revised, are of paramount importance.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n9 See, e.g., Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998); State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 176-78 (Ariz. 1986); State v. Ito, 90 Haw. 225, 978 P.2d 191 (Haw. Ct. App. 1999); State v. Baue, 258 Neb. 968, 607 N.W.2d 191, 197 (Neb. 2000) and Appendix.


n10 See cases cited infra at p. 44 and Appendix.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

HN16Go to the description of this Headnote.Rule 702 permits testimony in the form of an opinion or otherwise regarding scientific, technical or specialized matters from a qualified expert, provided the testimony is based on (a) sufficient facts or data, (b) is the result of methods or principles that are reliable and (c) is the result of reliable application of the methods or principles to the facts of the particular case. These three requirements, added in December 2000, are complimentary to, but not identical with, the four [**11] non-exclusive evaluative factors identified by the Supreme Court in the Daubert/Kumho Tire cases: (a) whether the opinions offered are testable; (b) whether the methods or principles used to reach the opinions have been subject to peer review evaluation; (c) whether a known error rate can be identified with respect to the methods or principles underlying the opinion, and, finally, (d) whether the opinion rests on methodology that is generally accepted within the relevant scientific or technical community. n11

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n11 Daubert, 509 U.S. at 593-94; Kumho Tire, 526 U.S. at 141.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

As further will be seen, almost the entire universe of published case law regarding the admissibility of SFST evidence comes from the state courts, as would be expected, given the fact that there is no uniform federal traffic code, and DWI/DUI cases in federal court usually come about as a result of assimilating state drunk driving laws under 18 U.S.C. §§ 7 and 13. This is significant because [**12] the vast majority of the state cases that have analyzed this issue have done so under the Frye n12 standard for admitting scientific or technical evidence: whether the methods or principles have gained general acceptance within the relevant scientific or technical community. n13 While this test has continued vitality as one of the four Daubert/Kumho Tire factors, a federal court must do more in determining the admissibility of scientific, technical or specialized evidence than focus on general acceptance.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n12 Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923).


n13 See state cases cited infra at pp. 44-45 and Appendix.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The starting point for this analysis is the SFSTs themselves, followed by a discussion of the evidence produced by the parties in this case regarding their reliability and then a consideration of the state cases that have focused on this issue.

2. The SFSTs

The three SFSTs that are the subject of this case were developed on behalf [**13] of the National Highway Traffic Safety Administration ("NHTSA") beginning in the 1970's. They are discussed in detail by a series of NHTSA publications, including:

* a student manual for DWI detection and standardized field sobriety testing;

* a June 1977 final report prepared for NHTSA by Marcelline Burns, Ph.D. n14 [*536] and Herbert Moskowitz, Ph.D. of the Southern California Research Institute ("SCRI") titled "Psychophysical Tests for DWI Arrests" (the "1977 Report");

* a March 1981 final report prepared for NHTSA by Dr. Burns and the SCRI titled "Development and Field Test of Psychophysical Tests for DWI Arrest" (the "1981 Final Report");

* a September 1983 NHTSA Technical Report, authored by Theodore E. Anderson, Robert M. Schweitz and Monroe B. Snyder, titled "Field Evaluation Of A Behavioral Test Battery For DWI" (the "1983 Field Evaluation");
* a November 1995 study of the SFSTs funded by NHTSA and conducted by Dr. Burns and the Pitkin County Sheriff's Office, Colorado, titled "A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery" (the "1995 Colorado Validation Study"); and

*an undated study, authored by Dr. Burns and a sergeant [**14] of the Pinellas County Sheriff's Office, Florida, titled "A Florida Validation Study of the Standardized Field Sobriety Test (S.F.S.T.) Battery (the "Florida Validation Study").



(Gov't. Opposition Memo. Exhs. 2-7).

These studies are very significant, as they have been cited repeatedly by the state courts in their opinions regarding the admissibility of SFSTs in connection with assessment of the reliability of the SFSTs and their general acceptance within the law enforcement and traffic safety communities. They also are important in this case because they have been the subject of critical analysis by Horn's experts, who provided detailed testimony regarding the limitations of these studies and the extent to which the SFSTs are reliable and valid tests for driver intoxication or alcohol impairment. n15

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n14 Dr. Burns is perhaps the most ardent advocate of the SFSTs at issue in this case, having participated in the original NHTSA studies that developed them, and thereafter as an ubiquitous--and peripatetic--prosecution expert witness testifying in favor of their accuracy and reliability in a host of state cases, over a course of many years. See cases cited infra at pp. 46-47. Despite her enthusiasm for the tests that she helped to develop, few, if any, courts have agreed with her that the SFSTs, taken alone or collectively, are sufficiently reliable to be used as direct evidence of specific BAC, as a review of the state cases listed in the Appendix to this opinion readily demonstrates. Dr. Burns has achieved, however, nearly universal success in persuading state courts that the SFSTs developed by SCRI, if properly administered, are admissible as circumstantial evidence of alcohol ingestion.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**15]

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n15 This underscores an important point. When analyzing the many state decisions regarding the admissibility of SFST evidence, care must be taken to focus on the factual basis supporting the rulings made. In many instances, the primary evidence that the court had before it regarding the reliability of SFSTs was Dr. Burns' testimony and the above described NHTSA, Colorado and Florida studies, as well as testimony from law enforcement officers with a vested interest in the use of the SFSTs. In most, but not all, instances, the defendant in the state cases simply did not mount a challenge to the "science" underlying the SFSTs. This is not the case here, where Horn has provided a spirited and detailed attack on the tests' reliability. This highlights an inherent limitation in the process of judicial evaluation of the reliability and validity of any scientific or technical evidence: HN17Go to the description of this Headnote.the court must, under Rule 104(a), act as the "gatekeeper" to decide whether the evidence is reliable and admissible. The court, however, is limited in its ability to do so by the quantitative and qualitative nature of the evidence produced by the parties, whatever research the court itself may do, and any help it may derive from courts that have addressed the issue before it. This process unavoidably takes place on a continuum, and a court faced with the present task of deciding the admissibility of scientific evidence must exercise care to consider whether new developments or evidence require a reevaluation of the conclusions previously reached by courts that did not have the benefit of the more recent information. In short, neither science and technology may rest on past accomplishments--nor may the courts.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**16]

The three SFSTs developed by the research sponsored by NHTSA are summarized in the NHTSA student manual. (Gov't. Opposition Memo., Ex.2). The manual describes the tests and evaluations conducted to develop the SFSTs, then provides detailed instruction on how to administer and score each of the three tests. [*537]

The most "scientific" or "technical" of the three is the Horizontal Gaze Nystagmus Test ("HGN Test"). Nystagmus is "the involuntary jerking of the eyes, occurring as the eyes gaze toward the side. Also, nystagmus is a natural, normal phenomenon. Alcohol and certain other drugs do not cause this phenomenon, they merely exaggerate it or magnify it." Id. at VIII-12. Horizontal gaze nystagmus "occurs as the eyes move to the side." Id. at VIII-13. The HGN SFST requires the investigating officer to look for three "clues": (1) the inability of the suspect to follow a slowly moving stimulus smoothly with his or her eyes, (2) the presence of "distinct" nystagmus when the suspect has moved his or her eyes as far to the left or right as possible (referred to as holding the eyes at "maximum deviation") and held them in this position for approximately four seconds and (3) the presence [**17] of nystagmus before the eyes have moved 45 degrees to the left or right (which, the manual states, usually means that the subject has a BAC above 0.10). Id. at VIII-14-15. The officer is trained to look for each of the above three "clues" for each of the suspect's eyes, meaning there are six possible "clues." If the officer observes four or more clues the manual asserts that "it is likely that the suspect's BAC is above 0.10 [and] using this criterion [one] will be able to classify correctly about 77% of [one's] suspects with respect to whether they are above 0.10." Id. at VIII-17. If the results of the HGN test are offered to establish that the suspect's BAC is above 0.10, n16 it is readily apparent that much depends on the investigating officer properly performing the HGN test procedures and on his or her subjective evaluation of the presence of the "standardized clues." Indeed, the manual itself cautions with respect to each of the SFSTs:

[the tests are valid] only when . . . administered in the prescribed, standardized manner; and only when the standardized clues are used to assess the suspect's performance; and, only when the standardized criteria [**18] are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised.



Id. at VIII-12 (emphasis in original).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n16 At the time of Horn's arrest, Maryland law stated that, HN18Go to the description of this Headnote."if at the time of [taking the breathalyzer test], a person has an alcohol concentration of at least .07 but less than .10" such results would be "prima facie evidence that the defendant was driving with alcohol in the defendant's blood." Md. Code Ann., Cts. & Jud. Proc. § 10-307 (1998 Repl. Vol.). Effective September 30, 2001, HN19Go to the description of this Headnote.a blood alcohol concentration between 0.07 and 0.08 will be prima facie evidence that the person was driving while impaired by alcohol. If the person's BAC is .08 or higher, the defendant shall be considered under the influence of alcohol per se. Md. Code Ann., Cts. & Jud. Proc. § 10-307 (d), (g) (2001 Supp.).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The Walk and Turn ("WAT") test requires the suspect to place his feet in the heel-to-toe stance on a straight line. The subject [**19] then is instructed to place his right foot on the line ahead of the left foot, with the heel of the right foot against the toe of the left. The suspect also is told to keep his arms down at his side and to maintain this position until the officer instructs him to begin the test. Id. at VIII-18. Once told to start, the suspect is to take nine heel-to-toe steps down the line, then to turn around in a prescribed manner, and take nine heel-to-toe steps back up the line. Id. While walking, the suspect is to keep his hands at his side, watch his feet, and count his steps out loud. Id. at VIII-19. Also, the suspect is told not to stop the test until completed, once told to start. Id.

As with the HGN test, the Manual asserts that there are standardized clues, [*538] eight in all, n17 that "research . . . has demonstrated are the most likely to be observed in someone with a BAC above 0.10." Id. at VIII-19. Further, it states "if the suspect exhibits two or more distinct clues on this test or fails to complete it, classify the suspect's BAC as above 0.10. Using this criterion, you will be able to correctly classify about 68% of your suspects." Id. at VIII-21. Once again, it [**20] is the officer's subjective evaluation of the suspect that results in the determination of whether a "clue" is present or not, and, if only two of the eight "standardized clues" are detected, NHTSA asserts that the suspect's BAC is 0.10 or more.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n17 The eight clues are the inability to keep balance while listening to instructions, starting the test before the instructions are finished, stopping to steady one's self, failure to touch heel-to-toe, stepping off the line, using arms for balance, improper turning, and taking an incorrect number of steps. Id. at VIII-20.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The third SFST is the One Leg Stand ("OLS") test. In this test the suspect is told to stand with her feet together, arms at her sides. She then is told not to start the test until told to do so. To perform the OLS test, the suspect must raise whichever leg she chooses, approximately six inches from the ground, toes pointed out. Id. at VIII-23. While holding this position, the suspect then must count out loud for thirty seconds, by saying "one-one [**21] thousand, two-one thousand," etc. Id. The NHTSA manual identifies four "standardized clues" for the OLS test n18 and instructs law enforcement officers that "if an individual shows two or more clues or fails to complete the [test] . . . there is a good chance the BAC is above 0.10. Using that criterion, [one] will correctly classify about 65% of the people [one] test[s] as to whether their BACs are above or below 0.10." Id. at VIII-24.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n18 The four clues are swaying while balancing, using arms for balance, hopping, and putting a foot down. Id. at VIII-24.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The NHTSA Manual advises that when the WAT and HGN tests are combined, using a decision matrix developed for NHTSA, an officer can "achieve 80% accuracy" in differentiating suspects with BACs in excess of 0.10. Id. at VIII-5. These conclusions are supported, it is claimed, by the results of research and testing done by Dr. Burns and her company that was reported in the 1981 Final Report, the 1983 Field Evaluation, the 1995 Colorado Validation [**22] Study and the Florida Validation Study. n19 Id. at Exs. 4-8.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n19 The Florida Validation Study is undated. During the Rule 104(a) hearing, there was testimony from Surgeon Cole, Ph.D., one of Horn's witnesses, that a third validation test had been done in San Diego, but it was not offered as an exhibit. Dr. Cole did testify, however, as to its conclusions and the defects in its design.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

As next will be seen, Horn's experts have challenged the reliability, validity and relevance of the SFSTs to prove driver intoxication and are sharply critical of the claims of accuracy advanced in the NHTSA publications and the so-called validation studies. They have framed these objections in terms of the factors discussed in the Daubert/Kumho Tire decisions, as amplified by this Court in Samuel v. Ford Motor Co., 96 F. Supp. 2d 491 (D. Md. 2000).

3. Horn's Challenges to the Reliability/Validity of SFST Evidence

HN20Go to the description of this Headnote.Rule 702 prohibits expert testimony if it is not the product of reliable methods [**23] or principles that reliably have been applied to the facts of the particular case. In the context of scientific or technical [*539] testing, such as may be the case with SFSTs, reliability means the ability of a test to be duplicated, producing the same or substantially same results when successively performed under the same conditions. Daubert, 509 U.S. at 595; Samuel, 96 F. Supp. 2d at 494. Thus, for the SFSTs, if reliable, it would be expected that different officers, viewing the same suspect performing the SFSTs, would reach the same conclusion regarding the level of the suspect's impairment or intoxication. Alternatively, the same officer retesting the same suspect with the same BAC as when first tested would reach the same conclusion.

A related, though distinct concept, deals with the validity of a test. HN21Go to the description of this Headnote.A test is valid if it has a logical nexus with the issue to be determined in a case. Daubert, 509 U.S. at 591; Samuel, 96 F. Supp. 2d at 494. In the context of SFSTs, they are valid if there is a logical nexus between what the tests measure and the true ability of a driver safely to operate a motor vehicle. [**24] Thus, for example, does the fact that a suspect missed two "cues" in the WAT test mean that the driver cannot safely drive a car, or does it simply mean that the driver has some inability to perform the test that is unrelated to his or her ability to drive? Horn has challenged both the reliability and validity of the SFSTs.

During the Rule 104(a) proceedings, Horn produced four experts, three of whom submitted affidavits, and two of whom also testified: Yale Caplan, Ph.D. (former chief toxicologist for the State of Maryland and former scientific director of the Maryland Alcohol Testing Program); Spurgeon Cole, Ph.D. (Professor of Psychology, Clemson University and author of a series of articles critical of the SFSTs); Harold P. Brull (a licensed psychologist and consultant specializing in industrial/organizational psychology, particularly the definition and measurement of human attributes in employment and related settings); and Joel Wiesen, Ph.D. (an industrial psychologist with special expertise in experimental psychology, psychometrics and statistics. Dr. Wiesen worked for more than ten years for the Massachusetts Division of Personnel Administration, developing and validating [**25] civil service examinations and is an independent consultant in the field of development and validation of human performance tests).

In his testimony and published writings, Dr. Cole was highly critical of the reliability of the SFSTs if used to prove the precise level of a suspect's alcohol intoxication or impairment. His 1994 article "Field Sobriety Tests: Are They Designed for Failure?," published in the journal Perceptual and Motor Skills, analyzed the 1977 Report, the 1981 Final Report, and the 1983 Field Evaluation report published by NHTSA regarding the SFSTs. (Def's. Memo, Ex. C.).

Dr. Cole observed the following:

(1) 47% of the subjects tested in the 1977 NHTSA laboratory study who would have been arrested by the testing officers for driving while intoxicated (BAC of 0.10 or greater) actually had BACs below 0.10;

(2) in the 1981 Final Report, 32% of the participants in the lab study were incorrectly judged by the testing officers as having BACs of 0.10 or greater; and

(3) the accepted reliability coefficient for standardized clinical tests is .85 or higher, yet the reliability coefficients for the SFSTs, as reported in the NHTSA studies, ranged from [**26] .61 to .72 for the individual tests and .77 for individuals that were tested on two different occasions while dosed to the exact same BAC. More alarmingly, inter-rater reliability [*540] rates (where different officers score each subject) ranged from .34 to .60, with an over-all rate of .57.



Id. at 100.

Dr. Cole theorized that the SFSTs, particularly the WAT and OLS tests, required subjects to perform unfamiliar, unpracticed motions and noted that a very few miscues result in a conclusion that the subject failed and had a BAC in excess of 0.10. Id. His hypothesis was that individuals could be classified as intoxicated/impaired as a result of unfamiliarity with the test, rather than actual BAC. Id. He tested this hypothesis by videotaping twenty-one completely sober individuals performing either "normal-abilities tests" (such as reciting their addresses or phone numbers or walking in a normal manner) or the WAT and OLS tests. Id. at 99-102. The results of the study were that 46% of the officers that viewed the videotape of the sober individuals performing the SFSTs rated the subjects as having had too much to drink, as compared to only 15% reaching this decision [**27] after seeing the videotape of the subjects performing the normal-abilities tests. Id. at 102. Dr. Cole concluded:

[The SFSTs] must be held to the same standards the scientific community would expect of any reliable and valid test of behavior. This study brings the validity of field sobriety tests into question. If law enforcement officials and the courts wish to continue to use field sobriety tests as evidence of driving impairment, then further study needs to be conducted addressing the direct relationship of performance on these and other tests with driving. To date, research has concentrated on the relationship between test performance and BAC and officers' perception of impairment. This study indicates that these perceptions may be faulty.



Id. at 103.

During his testimony at the Rule 104(a) hearing, Dr. Cole repeated his criticism of the reliability of the 1977, 1981 and 1983 studies but also testified about the Colorado, Florida and San Diego studies performed by Dr. Burns, styled as "field validation studies." This testimony echoed Dr. Cole's written criticisms about the SFSTs' reliability as precise predictors of the level of alcohol intoxication and [**28] the SFST's validity as a measure of driver impairment in his 1994 article, co-authored with Ronald H. Nowaczyk, titled "Separating Myth from Fact: A Review of Research on the Field Sobriety Tests" and published in the Champion journal of the South Carolina Bar Association. Def's. Reply Memo, Exh. 1.

Dr. Cole's primary criticisms, as discussed in his 1994 article, include, first, that the 1981 Final Report published by NHTSA claims an 80% accuracy rate for users of the SFSTs. This is misleading because when the actual data is examined with respect to the success rate of using the SFSTs to differentiate between drivers with BACs above 0.10 and those without, the critical population, the officers had "a 50/50 chance of being correct just on the basis of guessing." Id. at 539.

Second, the SFSTs have a combined test-retest reliability rates of .77, while the scientific community "expects reliability coefficients to be in the upper .80s or .90 for a test to be scientifically reliable." Id. at 540. When different officers tested the same subjects at the same BAC dose level on different days the reliability was only .59--a 41% error rate. Dr. Cole contrasted these substandard [**29] reliability coefficients with that of the BAC machine, which is .96 or 96% reliable. Id. at 540-41.

Third, Dr. Cole argued that in order for the SFSTs to be valid predictors of BAC [*541] they must "not only identify individuals above a BAC level of 0.10 as 'failing', but also identify individuals below .10 as 'passing'." Id. at 541. The data from the NHTSA 1977 Report, however, shows that the validity of the HGN, OLS and WAT SFSTs was ".67, .48, and .55, respectively, with a combined validity coefficient of .67." Id. This means that use of the SFSTs results in an unacceptably high erroneous arrest rate, if the tests are used by the officer to make arrest decisions based on BAC levels being in excess of .10.

Fourth, Dr. Cole was particularly critical of claims that the NHTSA SFSTs have been "validated" in a "field setting." In this regard, he stated that the 1977 and 1981 NHTSA studies were done in a laboratory setting, and the difference in conditions in a controlled lab are dramatically dissimilar from field conditions that can be expected when officers employ SFSTs at all times of day and night in widely disparate weather and traffic conditions and where issues of officer [**30] safety may influence how the test is performed. n20 Id. at 542. Dr. Cole stated that the NHTSA 1983 Field Evaluation purported to be a field validation study, but it failed to meet the recommendations of the authors of the NHTSA 1981 Final Report that the SFSTs be validated in the field for eighteen months in locations across the country. Id. Dr. Cole also stated that Dr. Burns herself has testified that the SFSTs adequately have not been field tested. n21 Id.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n20 This criticism is especially significant in light of the third evaluative factor in Rule 702. HN22Go to the description of this Headnote.This factor requires that the expert's opinion testimony be based on the use of principles/methods themselves reliable but that also reliably have been applied to the facts of the particular case. Thus, even if the SFSTs are determined to be reliable measures of driver intoxication, an officer's testimony about their use in a particular case could not be allowed absent a showing that the officer properly had administered the tests.


n21 During his testimony, Dr. Cole stated that the Colorado, Florida and San Diego "validation" studies performed by Dr. Burns with various sheriff's departments do not cure the defects contained in the original reports. The three studies involved officers that made stops of drivers that were driving unsafely, and the officers evaluated them using the SFSTs, but also had the benefit of preliminary breath analysis tests, in many instances, and the studies do not permit a critical reviewer to determine whether the officer's arrest decision was based on the SFSTs alone, or on the totality of the information available to the officer, including the results of the breath test. Thus, the studies were not controlled, and there were multiple variables that affected the ultimate decision. He concluded, therefore, that these "validation" studies were scientifically unacceptable.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**31]

Finally, Dr. Cole disputed the claims of proponents of the SFSTs that the studies regarding them have been published in peer review journals. The 1977 and 1981 field studies were published in technical reports by NHTSA, but those reports excluded the "methods and results" sections because they were thought to be too lengthy. Id. at 543. Cole concluded "it is difficult to see how the NHTSA could claim that the FST is accepted in the scientific community, when results of studies on the validation of the FST have never appeared in a scientific peer reviewed journal, which is a basic requirement for acceptance by the scientific community." Id. Cole concluded:

Because of its widespread use, the FST battery has been assumed to be a reliable and valid predictor of driving impairment. NHTSA has done little to dispel that assumption. Law enforcement cannot be blamed for its use of the FST battery. Training documents refer to NHTSA reports and provide what appears to be supporting evidence for the validity of the FST battery. In addition, there is little doubt that individuals who have high BAC levels will [*542] have difficulty in performing the FST battery. However, what [**32] the law enforcement community and the courts fail to realize is that the FST battery may mislead the officer on the road to incorrectly judge individuals who are not impaired. The FST battery to be valid must discriminate accurately between the impaired and non-impaired driver. NHTSA's own research on that issue . . . has not been subjected to peer review by the scientific community. In addition, a careful reading of the reports themselves provides support for the inadequacy of the FST battery. The reports include low reliability estimates for the tests, false arrest rates between 32 and 46.5 percent, and a field test of the FST that was flawed because the officers in many cases had breathalyzer results at the time of the arrest. NHTSA clearly ignored the printed recommendations of its own researchers in conducting that field study.



Id. at 546. (Emphasis in original).

Horn also introduced the affidavit of Joel P. Wiesen, Ph.D. Dr. Wiesen is an industrial psychologist with special expertise in experimental psychology, psychometrics and statistics. His experience includes more than ten years working with the Commonwealth of Massachusetts developing civil service examinations [**33] and an equal number of years as an independent consultant in the area of test development and validation. In addition, he is a published author of a mechanical aptitude test used nationwide. Although he is most familiar with written tests, he does have experience in the development of human performance tests. Def's. Reply Memo, Exh.6 at 1.

Dr. Wiesen reviewed the NHTSA 1977 Report, the 1981 Final Report, the 1983 Field Evaluation, the 1995 Colorado Validation Study, the undated Florida Validation Study, and the NHTSA student manual for the SFSTs. He was highly critical of these studies, as the following summary illustrates: n22
1977 Report 1981 Report 1983 Report 1995 Colo. Fla. Study
(Lab & Field Study
Phases)
1. In the lab 1. Serious 1. Report 1. Report 1. Report
the HGN test was flaws include seriously describes too in-
administered 20% false flawed, does results of complete
using a chin positive not meet impaired to permit
rest which evaluations of professional driving arrests meaningful
facilitated intox.; very standards of from seven evaluation.
making HGN high error testing Colorado law
observations. rates in community. enforcement
This was not reliability if organizations.
done in the using SFSTs to Report too
field. predict BAC. incomplete to
draw any
conclusions
about the
validity of the
test.
2. A single set 2. HGN test 2. Failure to 2. Methodology 2. Methodo-
of data was used affected by monitor data results and logy not
to determine time of day, no collection by data sections described,
criterion score adjustment in officers. of report are and data
and to evaluate scoring. Cannot tell if missing. regarding
accuracy of decisions based methodology
test, which on SFSTs or not provided
artificially prelim. breath in report.
inflates test (PBT).
estimate of
accuracy.
3. Tests are 3. Test/retest 3. Arrest 3. Data 3. Data
not age & gender reliability decisions made generated by incompletely
neutral, and rates very low. on PBT results "volunteer" described.
age/gender as well as officers--
differences can SFSTs. Not suggesting
affect ability possible to possible bias.
to perform tell
SFSTs. reliability of
SFSTs.
4. In lab tests 4. Report 4. Authors 4. No
officers were states testing fail to report monitoring of
monitored to officers did the data from data collection
insure correct not necessarily N.C. Test to verify
performance of base decisions site-over 25% reporting
tests, not done on results of of data for methodology.
in field. SFSTs, making whole test. Officers merely
validity reported
suspect. results.
5. Test results 5. Authors 5. No 5. Results
differ in admit field statistical unclear,
statistically test data not tests conducted particularly
significant appropriate for on data. because two
respects statistical different
depending on significance arrest
time of day that testing, and standards used
HGN test was could be (one for
performed, yet biased. intoxication,
test scoring did another for
not account for impaired)
difference in
time of day test
was
administered.
6. The study 6. High error 6. SFSTs not
was not peer rates. 28.6% of administered in
reviewed, and subjects with standard
would not have "legal" BAC fashion.
been accepted if arrested, and
offered. 50% of subjects
w/ BAC > 0.10
not arrested.
7. Officers 7. Authors
selected for acknowledge
study not "extreme
representative caution" needed
of police in analyzing
officers across data collected
the board. in study.
Accuracy of
data suspect.
8. Authors
reported that
in field some
officers forgot
or ignored
standardized
procedure to
administer
SFSTs.
[**34]

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n22 The information reported in the chart is found in Def's Reply Memo, Ex.6 at 1-13.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*543]

Dr. Wiesen concluded his evaluation of the SFST reports with the following observation:

the studies give only a general indication of the level of potential validity of the tests as described in the NHTSA manual . . . . Rather than the five studies supporting each other, they evaluate somewhat different combinations of test content and test scoring. The differences are large enough to change the validity and accuracy of the tests. The older studies are probably less germane, due to the changes in test content and scoring over time. The reports for the newer studies are grossly inadequate. Given this, and in light of the specific critiques above (which are not exhaustive), I can only conclude that the field sobriety tests do not meet reasonable professional and scientific standards.



Id. at 12-13.

Harold P. Brull testified on behalf of Horn and supplied an affidavit as well. Mr. Brull is a licensed psychologist [**35] with many years experience consulting in connection with the design and implementation of procedures to measure human attributes, especially in employment settings. He has designed and evaluated tests and procedures measuring human [*544] characteristics for over twenty years. Def's. Reply Memo, Exh. 5 at 2.

Mr. Brull reviewed the NHTSA 1977 Report, the 1981 Final Report, the 1983 Field Evaluation, the 1995 Colorado Validation Study, the Florida Validation Study, and the NHTSA officer training manual. Among his general observations of these materials was the opinion that there was a complete absence of evidence "which would allow one to predict a known error rate in the field," where there is no ability to control the performance of the SFSTs like there is in a laboratory setting. Def's. Reply Memo, Exh. 4 at 6. He was especially critical of the assertions in the Florida and Colorado studies regarding the reliability of the SFSTs, primarily because of their use of lower BAC thresholds (0.05 and above instead of 0.10), the fact that the population of drivers evaluated were those stopped because of unsafe driving and the complete absence of any data in the reports to enable meaningful evaluation. [**36] Id. at 6-7. He further expressed the opinion that none of the reports was published in peer review literature. While Brull was not critical of the methodology used in the 1977 and 1981 laboratory studies, he stated that the results from these studies were inconclusive, and the subsequent field tests "simply do not contain sufficient detail or rigor to support any hypothesis that field sobriety studies, as conducted by police officers in the field, are valid and reliable." Id. at 7.

Brull's evaluation of the data contained in the 1977 and 1981 reports was consistent with that of Dr. Cole and Dr. Wiesen. Regarding the 1981 Final Report, he observed that "the degree of predictive error in the field appeared to be substantially larger than in the laboratory," and that "while training clearly brought about improvement, it does not compare favorably to the laboratory condition and is [sic] a margin of error substantially higher than one would find acceptable for predicting with any degree of certainty." Id. at 11.

Brull was most critical of the Colorado and Florida "validation" studies. He noted that they "are merely summary reports, without foundation, of findings," and [**37] suffered from a "serious methodological flaw," in that the tests were done on actual motorists stopped by officers because their driving was unsafe, leading the officers automatically to suspect that they were intoxicated. Id. Use of this population likely will produce results that Brull characterized as "highly inflated." Id. He further noted that these field studies predicted 90% accuracy in identifying drivers with BAC's above 0.05, a level only one half that used in the earlier tests and below the level of legal intoxication. While the validation studies provided no data to assess the accuracy of the SFSTs in identifying drivers with BACs of 0.10 or higher, Brull suspected that the accuracy rate would be far lower than 90%. Id. at 12.

Brull's final conclusions were summarized as follows:

(1) the laboratory studies that form the foundation of the SFSTs (the 1977 and 1981 studies) were well designed;

(2) the accuracy of the SFSTs, even under laboratory conditions, is less than desired and below the level expected for tests of human performance;

(3) the field studies were not well documented, produced unknown error rates, but which, if known, likely [**38] would have been unacceptable in real world situations; n23
[*545]
(4) the error rate of SFSTs as actually performed by officers in the field is unknown;

(5) the only peer review article analyzing the SFST's was written by Dr. Cole and is highly critical of the accuracy of the SFSTs.



Id. at 14.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n23 The concern about the reliability of SFSTs performed by officers in the field under actual stop and detain conditions is not fanciful, given the fact that the NHTSA officer training manual itself cautions that the reliability of the SFSTs depends on strict compliance with the standardized procedures. Gov't. Opposition Memo, Exh. 2 at VIII-12. Further, there is clear evidence that given the conditions under which SFSTs actually are performed in real life situations, officers often do not follow the prescribed methodology. See Def's. Reply Memo, Exh.8 at 116 ("End-position nystagmus as an indicator of ethanol intoxication," Science and Justice Journal 2001) (author studied videotapes of actual traffic stops where HGN test was administered. Over 98% of the roadside HGN tests were improperly conducted); 1981 Final Report at 18-19 (stating that officers did not necessarily follow the standardized decision criteria used with the SFSTs). HN23Go to the description of this Headnote.The fact that officers may not perform the SFSTs properly in the field has special significance when evaluated under Rule 702, as the third factor in that rule requires the court to find that the opinion testimony is based on reliable methods or principles that reliably were applied to the facts of the particular case. Thus, if reliable methods exist, but are not used in a particular instance, the results of the misapplication of the methodology are not admissible.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**39]

Finally, Horn offered the affidavit of Yale H. Caplan, Ph.D., Defs.' Motion, Ex. E. Dr. Caplan has more than thirty years experience in the field of forensic toxicology and alcohol and drug testing. He served for many years as the chief toxicologist for the Maryland Medical Examiner's office and now is a consultant in the field of toxicology. Id. Dr. Caplan stated that a determination that a person is impaired by alcohol consumption may be made in one of two fashions: by direct evidence of impairment derived from the chemical analysis of a breath or blood specimen; or indirectly by assessing performance indicators of the subject through field sobriety tests. Id. With respect to the latter, Dr. Caplan stated:

Although physiological assessments (e.g. standardized field sobriety tests) when coupled with the odor of alcohol on breath and alcohol's relatively high epidemiological prevalence in drivers may suggest alcohol as the causative agent, the use of drugs or the concomitant use of alcohol and drugs or other medical conditions must be considered as causes for the impairment. In fact, field sobriety tests alone were never designed for or demonstrated to be unequivocally [**40] capable of indicating alcohol impairment.



Id. He expressed the following opinions: (1) that field sobriety tests can be used to define impairment but that a specific blood/breath alcohol test is needed to confirm that the cause of the impairment is alcohol ingestion; (2) that an alcohol test of a suspect's breath or blood can alone be used to establish impairment, but field sobriety tests alone cannot establish alcohol impairment "with absolute certainty." Id.

4. The Government's Evidence

In response to the evidence submitted by Horn, the Government introduced the affidavit of Officer Jarrell, the arresting officer, describing the stop, detention and arrest of Horn and the SFSTs administered to him. The Government also introduced the 1977, 1981, and 1983 NHTSA reports, the California and Florida "validation studies," the NHTSA student manual regarding the SFSTs, and an article titled "Horizontal Gaze Nystagmus: The Science & the Law," published by the American Prosecutors Research Institute's National Traffic Law Center ("NTLC"). n24 Govt's. Opposition Memo, Exhs. 1-7. [*546] Additionally, the Government introduced the affidavit of Lieutenant Colonel Jeff C. Rabin, [**41] O.D., Ph.D., a licensed optometrist on active duty in the Army, assigned as the Director of Refractive Research at the Walter Reed Army Institute for Research, Walter Reed Army Medical Center. n25 Id. Exh. 8. Colonel Rabin, who also testified at the Rule 104(a) hearing, has testified as an expert witness on the effects of alcohol and drugs on eye movements, given presentations to Army doctors and optometrists on this subject and reviewed the NHTSA publications regarding the HGN and other SFSTs. Id. Exhs. 8, 9. His affidavit and trial testimony confirmed the fact that alcohol ingestion can enhance the presence of nystagmus in the human eye at BAC levels as low as .04. He expressed the opinion that "there is a very good correlation between the results of the . . . [HGN] test and breath analysis for intoxication." Id. He also stated that the three "clues" that officers are taught to look for in connection with the HGN SFST "are indicative of alcohol consumption with possible intoxication." Id. Colonel Rabin expressed his belief that police officers could be trained adequately to administer the HGN test and interpret its results.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n24 The NTLC was "created in cooperation with . . . (NHTSA) and works closely with NHTSA and the National Association of Prosecutor Coordinators to develop training programs." The NTLC is a program of the American Prosecutors Research Institute, the principal function of which "is to enhance prosecution in America." Gov't. Opposition Memo, Exh. 1 at 2. The foreword to this publication was written by Dr. Marcelline Burns. [**42]



n25 The Government also had intended to introduce the affidavit of Sergeant Thomas Woodward of the Maryland State Police but ultimately was unable to do so.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Colonel Rabin's testimony was consistent with his affidavit. He did acknowledge, however, that he acquired his knowledge of, and formed his opinions about, the SFSTs in connection with performing duties as an expert witness for Army prosecutors in two courts martial, not as a result of any independent research that he had done as an optometrist. It further was acknowledged that Colonel Rubin was not asked to analyze in any detail the reliability and validity of the NHTSA SFST studies, and he had no opinion on this subject. Further, the references to the HGN SFST that he read in peer review literature published by the American Journal of Optometry was based primarily on the NHTSA studies, rather than any independent research by that organization. He also acknowledged, in response to questions from the Court, that there are many causes of exaggerated nystagmus in the human eye that are unrelated to the ingestion of alcohol.

DISCUSSION [**43]

A. The State Case Law

State courts have wrestled with the admissibility of SFST results in drunk driving cases since 1986, when the Supreme Court of Arizona decided State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (Ariz. 1986). In that decision, based on the testimony before the trial court by Dr. Burns and three police officers, and using the Frye n26 test, the court held that the results of a HGN test were sufficiently reliable to be used to establish probable cause to arrest a motorist for DWI/DUI, and that it had achieved general acceptance among behavioral psychologists, highway safety experts, neurologists and law enforcement personnel. 718 P.2d at 180. The court therefore held that HGN evidence was admissible to prove driver intoxication/impairment. n27 718 P.2d at 181.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n26 Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923).


n27 The court cautioned that it was not ruling that HGN test results were admissible to prove that a driver had a BAC in excess of 0.10 "in the absence of a laboratory chemical analysis." 718 P.2d at 181. In State v. City Court of the City of Mesa, 165 Ariz. 514, 799 P.2d 855 (Ariz. 1990), the Arizona Supreme Court clarified that in cases where no independently admissible chemical test of a driver's BAC had been performed, HGN evidence was admissible only as circumstantial evidence that the driver had consumed alcohol and not to prove a specific BAC. 799 P.2d at 860.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**44] [*547]

Since the 1986 Arizona decision, a majority of the states have ruled on the admissibility of HGN and SFST evidence. A reading of these cases reveals that there are a core of decisions that have attempted to undertake a thorough review of the facts relating to admissibility of SFST evidence. Other state courts have relied more on the rulings of courts that previously had addressed the issue than on their own independent evaluation. It would unnecessarily lengthen this opinion to discuss all the state cases in detail. Thus, the Appendix attached to this opinion includes a chart that identifies the majority of state cases and briefly summarizes their holdings. n28 I will, however, discuss certain of the state cases in this opinion, as they are essential to understanding the rulings reached herein.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n28 The Appendix is intended to aid future courts called upon to research the issues presented in this case. The Court gratefully acknowledges the assistance of Ms. Jennifer Warfield, Mr. Kevin Cross, Ms. Jennifer Thomas, and Mr. Rodney Butler, interns who worked tirelessly on the Appendix. If the future of the legal profession may be predicted by these law students' work, it is a bright one. It also should be noted that, in addition to appointed counsel, Horn was also represented by Mr. Ryan Potter, a law student in the University of Maryland's much respected clinical law program. Admitted to practice under Local Rule 702, and under the skillful supervision of Professor Jerry Deise, these clinical law students offer significant assistance to their clients while concomitantly gaining invaluable trial experience. Ms. Claudia Diamond, my law clerk, also was instrumental in helping to revise and edit this opinion for which I am also very thankful.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**45]

Maryland's appellate cases discussing the admissibility of HGN and other SFST evidence fall into the category of state court cases that have undertaken a comprehensive evaluation of the admissibility of this evidence. The principal case, Schultz v. State, 106 Md. App. 145, 664 A.2d 60 (Md. App. 1995), has been cited repeatedly by other state courts in support of their own rulings on the admissibility of SFST evidence.

The defendant in Schultz was convicted of DUI. At the trial in the circuit court, the state's only evidence that the driver was driving under the influence of alcohol came from the arresting officer. Accordingly, the Court of Special Appeals was deprived of any evidence of record regarding the reliability of the HGN test. Its decision in Schultz was based on the court's own evaluation of other cases and the published literature regarding the HGN test from which the court took judicial notice of its reliability and general acceptance. 664 A.2d at 69-74. In doing so, the court observed that under Rule 5-702 n29 of the [*548] Maryland Rules of Evidence, it was required to apply the Frye test, adopted in Maryland in Reed v. State, 283 Md. 374, 391 A.2d 364 (Md. 1978). [**46] n30 In doing so, the court used a three prong test to determine whether HGN evidence satisfied the Frye/Reed test: (1) whether the scientific theory underlying the HGN test was reliable; (2) whether the methods used in connection with the HGN test had been accepted by scientists familiar with the test and its use; and (3) whether the police officer in the case at bar properly had been trained to administer the test and administered it properly. n31 664 A.2d at 64. The Schultz court based its findings regarding the HGN test on the Arizona Court's decision in State v. Superior Court, the decisions of other state courts, as well as its reading of various studies and articles. 664 A.2d at 72-73. Its consideration regarding the reliability of the HGN test, however, is most significant with respect to the ruling made in this decision. Because it lacked the robust evidentiary record available to this court regarding the reliability of the HGN, OLS, WAT tests, the Court of Special Appeals was required to look at case law and published materials to determine whether the HGN test was reliable and generally accepted. The primary bases for its conclusion that it was, and that [**47] it therefore could take judicial notice of this fact, were a decision by the Texas Supreme Court in Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), a 1986 article authored by Edward B. Tenney and published in the New Hampshire Bar Journal, n32 and the NHTSA 1983 Field Evaluation. 664 A.2d at 73 and n. 12.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n29 The Maryland rules of evidence were adopted in 1994 after the Daubert decision had been rendered by the United States Supreme Court. In the commentary to Rule 5-702, which is the state equivalent to Fed. R. Evid. 702, the drafters, however, noted that it was not their intent to adopt the Daubert test, then widely viewed as applicable only to issues regarding the admissibility of scientific evidence. Instead, the Maryland rule was intended to maintain the Frye test, which had been adopted by the state in the case of Reed v. State, 283 Md. 374, 391 A.2d 364 (Md. 1978). To this day, Maryland has declined to adopt the Daubert test. Burral v. State, 352 Md. 707, 724 A.2d 65, 80 (Md. 1999)("We have not abandoned Frye or Reed."); Clark v. State, 140 Md. App. 540, 781 A.2d 913, 935 & n.13 (Md. Ct. Spec. App. 2001); State v. Gross, 134 Md. App. 528, 760 A.2d 725, 757 (Md. App. 2000); Schultz, 664 A.2d at 64 n.3. Thus, HN24Go to the description of this Headnote.in federal court, under the most recent version of Rule 702 and the Daubert/Kumho Tire decisions, the proponent of any expert testimony, whether scientific, technical or the product of some specialized knowledge, must undertake an analysis of reliability of the methods/principles underlying the opinion, as well as the reliability of the application of the methodology used by the expert to the particular facts of the case. Under Maryland evidence law, the Frye/Reed test applies only to introduction of scientific evidence, and Rule 5-702 alone covers all other types of expert opinion testimony. [**48]



n30 Maryland cases routinely refer to the Frye test as the "Frye/Reed" test. This opinion will as well.


n31 As noted at pp. 7-8, in December 2000 the Federal Rules of Evidence were amended. Among the rules that were changed was Rule 702, the expert opinion rule. HN25Go to the description of this Headnote.The amendment added three additional foundational requirements before expert testimony in any subject, whether scientific, technical or other specialized knowledge, is admissible: the opinion must be based on sufficient facts or data; it must be the product of methods and principles shown to be reliable, and the proponent must show that the methods/principles reliably had been applied to the facts of the case at hand. These factors are required by the rule itself and are independent from the factors identified by the Supreme Court in the Daubert/Kumho Tire decisions. The Maryland Rules of Evidence did not adopt the 2000 changes to the federal rules, and the Maryland expert opinion rule, Rule 5-702, does not contain the three additional foundational requirements as does Rule 702.


n32 Edward B. Tenney, The Horizontal Gaze Nystagmus Test and the Admissibility of Scientific Evidence, 27 New Hampshire Bar Journal 179 (1986) (hereinafter "Tenney article").


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**49]

In Emerson, the Texas court based its conclusions regarding the reliability of the HGN test on the NHTSA studies. Emerson, 880 S.W.2d at 766-67. The Tenney article cited only the NHTSA studies regarding the scientific basis for the HGN test and reached the conclusion that "if the State of New Hampshire is still a true Frye jurisdiction, then the likelihood that results from horizontal gaze nystagmus testing will be admitted into evidence in this state is extremely thin," n33 making it a questionable source to cite for the reliability [*549] of HGN testing. Finally, the conclusions of the NHTSA 1983 Field Evaluation have been aggressively challenged by Horn's experts in this case. In short, the foundation of the Court of Special Appeals' decision that the HGN test was sufficiently reliable and generally accepted rests on taking judicial notice of studies and articles that, at the time of their publication, had not been subject to the type of critical evaluation presented in this case.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n33 Tenney article at 187.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**50]

HN26Go to the description of this Headnote.The doctrine of judicial notice is predicated upon the assumption that the source materials from which the court takes judicial notice are reliable. n34 Where, as here, that reliability has been challenged, the court cannot disregard the challenge, simply because a legion of earlier court decisions reached conclusions based on reference to the same then-unchallenged authority. For the reasons that will be explained below, on the record before me, I cannot agree that the HGN, WAT and OLS tests, singly or in combination, have been shown to be as reliable as asserted by Dr. Burns, the NHTSA publications, and the publications of the communities of law enforcement officers and state prosecutors. While I ultimately agree, in large part, with the conclusions reached by the vast majority of state courts that the results of the HGN tests are admissible as circumstantial evidence of alcohol consumption, I must do so by recognizing their limited reliability and with substantial doubts about the degree of their general acceptance within an unbiased scientific or technical community.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n34 Indeed, in this regard, the Maryland and Federal Rules of Evidence are substantially identical. Rule 5-201 and HN27Go to the description of this Headnote.Fed. R. Evid. 201 permit the taking of judicial notice of adjudicative facts if: (a) the facts are generally known within the territorial jurisdiction of the court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Obviously, the scientific basis underlying HGN tests is not a matter generally known within the state; so, if judicial notice is to be taken, it must be by reference to sources whose accuracy cannot reasonably be questioned. While the sources relied on in the Schultz case may not have been subject to reasonable question at the time that court considered them, given the lack of any evidentiary facts in the record regarding the reliability of the HGN test, and the fact that judicial notice was taken on appeal-not at the trial level where the parties might have had an opportunity to develop a factual basis to challenge the propriety of judicial notice-- the same cannot be said given the record in this case. Further, HN28Go to the description of this Headnote.Rule 201(e) and 5-201(e) permit a party to be heard on the propriety of taking judicial notice, which did not occur in the Schultz case because judicial notice was taken on appeal. As one commentator has noted "where judicial notice of an adjudicative fact is taken by an appellate court on its own motion, an issue arises as to whether the provisions of Rule 201(e) concerning an opportunity to be heard are to be applied. At the moment, the question is unresolved." Graham, Handbook of Federal Evidence § 201.07 (5th ed. 2001). In any event, HN29Go to the description of this Headnote.Rule 201(g) provides that in criminal cases, the court must instruct the jury that "it may, but is not required to, accept as conclusive any fact judicially noted." Implicitly, the rule would permit a defendant in a criminal case to offer evidence to rebut any adjudicative fact noticed by the Court. Thus, if a Court took judicial notice of the reliability and general acceptance of the HGN test, the defendant initially could object to it doing so under Rule 201(e). Then, if unsuccessful in preventing the court from taking judicial notice, the defendant could introduce evidence contesting the fact judicially noted.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**51]

This is not to say that I am critical of the decisions in Schultz or the other state courts. To the contrary, they are, for the most part, well-reasoned and written, based on the information then available to the deciding courts and the inherent limitations of the process by which courts receive proof--either from evidence introduced by the parties themselves or by the taking of judicial notice from decisions of other courts or published materials. The [*550] Court of Special Appeals itself noted the danger inherent in such a process:



We note with some caution the dissent in Emerson, supra, which initially noted that, by taking judicial notice of the reliability of HGN testing and technique, the appellate court had relieved the State of its burden of establishing the reliability of the test at trial. We acknowledge that we, in taking judicial notice of the reliability of the test . . . are likewise relieving the State of that burden. We shall, nevertheless, take judicial notice that HGN testing, a scientific test, is sufficiently reliable and generally accepted in the relevant scientific community. . . . To do otherwise at this stage in the development of the [**52] science would leave to individual courts within the twenty-three jurisdictions of this State (and the various courts and judges within each jurisdiction) to determine, on a case-by-case basis, the scientific reliability of the test. In each of the various jurisdictions, the determination of the reliability and acceptability of such evidence would depend upon the competence, energy, and schedules (and even budgets) of the various prosecutors throughout the State in obtaining, and producing the attendance of experts at the thousands of trials involving alcohol related offenses in which HGN testing is sought to be admitted. Disparate results and decisions might result in many instances, not from the actual scientific reliability of the tests themselves, but from the differing abilities and resources of prosecutors and the availability of witnesses from the scientific community.




Schultz, 664 A.2d at 74.

The practical truth of the above reasoning cannot be denied. None today can doubt the serious public safety concerns related to driving by intoxicated or impaired motorists or the magnitude of this problem. n35 Neither can it be disputed that, given the volume [**53] of DWI/DUI cases, the press of other criminal cases, and the limited resources and time of prosecutors to prepare them for trial, it is highly desirable to have available a simple, inexpensive, and reliable test that can be administered by police officers on the road, which would facilitate a prompt and inexpensive trial. Indeed, Rule 102 would militate in favor of interpreting the rules of evidence in such a fashion as to accomplish this end, if fairly possible. What cannot be lost in the process, however, is the requirement that the trial be a fair one and that the sum of the evidence introduced against the defendant must be sufficiently probative to prove guilt beyond a reasonable doubt. n36 HN30Go to the description of this Headnote.Expedient as it may be for courts to take judicial notice of scientific or technical matters to resolve the crush of DWI/DUI cases, this cannot be done in the face of legitimate challenges to the reliability and accuracy of the tests sought to be judicially [*551] noticed. As will be seen, there is a place in the prosecutor's arsenal for SFST evidence, but it must not be cloaked in an aura of false reliability, lest the fact finder, like the protagonist in the Thomas Dolby song, be "blinded by science" [**54] or "hit by technology." n37

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n35 In FY 2000/2001, 35,962 DWI/DUI cases were filed in Maryland. Administrative Office of the Maryland Courts Judicial Information System, Maryland District Court Traffic System Citation Statistics, Report No. A70TM214, Run Date July 15, 2001.


n36 In addition, if local prosecutors may lack sufficient resources to prove the reliability and general acceptance of the SFSTs, which it is their burden to do in the first instance, it can be expected, a fortiori, that individual defendants charged with DWI and DUI will have even fewer resources to challenge the science and technology underlying these tests. If, once accepted by the application of the judicial notice rule, SFSTs are ever after immune from reconsideration, even in the face of new evidence challenging their reliability, then the burden will have been shifted from the state or government to establish the admissibility of the SFSTs to the defendant to disprove their admissibility. This is a high price to pay in the interest of conserving limited prosecutorial resources.


n37

"She blinded me with science!
And hit me with technology."



Thomas Dolby, "She Blinded Me With Science," http://www.prebble.com/sheblinded.htm. See also State v. Ferrer, 95 Haw. 409, 23 P.3d 744, 765 n.6 (Haw. Ct. App. 2001)(quoting State v. O'Key, 321 Ore. 285, 899 P.2d 663, 672 n.6) (jurors may be "overly impressed with the aura of reliability surrounding scientific evidence").


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**55]

From a review of the state court decisions regarding the admissibility of HGN evidence in particular, and SFST evidence in general, a number of observations may be made. First, HN31Go to the description of this Headnote.most of the states that have ruled that HGN evidence is admissible have not allowed it to be used to prove specific BAC but instead only as circumstantial proof of intoxication or impairment. See, e.g., Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998); State v. City Court of the City of Mesa, 799 P.2d 855 (Ariz. 1990); State v. Ruthardt, 680 A.2d 349 (Del. Super. Ct. 1996); State v. Garrett, 119 Idaho 878, 811 P.2d 488 (Idaho 1991); State v. Buening, 229 Ill. App. 3d 538, 592 N.E.2d 1222, 170 Ill. Dec. 542 (Ill. App. Ct. 1992); State v. Taylor, 1997 ME 81, 694 A.2d 907 (Md. 1997); Wilson v. State, 124 Md. App. 543, 723 A.2d 494 (Md. App. 1999); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (Neb. 2000); City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994); State v. Bresson, 51 Ohio St. 3d 123, 554 N.E.2d 1330 (Ohio 1990); State v. O'Key, 321 Ore. 285, 899 P.2d 663 (Or. 1995); [**56] State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (S.C. 1993); State v. Emerson, 880 S.W.2d 759 (Tex. Crim. App. 1994).

Second, most of the states that have ruled that HGN evidence is admissible have employed the Frye standard requiring general acceptance of the test within the relevant scientific or technical community. See, e.g., Malone v. City of Silverhill, 575 So. 2d 101 (Ala. Crim. App. 1989); State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (Ariz. 1986); People v. Leahy, 8 Cal. 4th 587, 882 P.2d 321 (Cal. 1994); Williams v. State, 710 So. 2d 24 (Fla. Dist. Ct. App. 1998); Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (Ga. Ct. App. 1996); Garrett, 119 Idaho 878, 811 P.2d 488 (Idaho 1991); State v. Buening, 229 Ill. App. 3d 538, 592 N.E.2d 1222, 170 Ill. Dec. 542 (Ill. Ct. App. 1992); State v. Witte, 251 Kan. 313, 836 P.2d 1110 (Kan. 1992); State v. Armstrong, 561 So. 2d 883 (La. Ct. App. 1990); Schultz, 106 Md. App. 145, 664 A.2d 60 (Md. App. 1995); People v. Berger, 217 Mich. App. 213, 551 N.W.2d 421 (Mich. Ct. App. 1991); [**57] State v. Klawitter, 518 N.W.2d 577 (Minn. 1994); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (Neb. 2000); State v. Cissne, 72 Wn. App. 677, 865 P.2d 564 (Wash. Ct. App. 1994). Some courts, however, have used other evidentiary standards. See, e.g., Connecticut v. Russo, 62 Conn. App. 129, 773 A.2d 965 (Conn. App. Ct. 2001) (remanding case to trial court to evaluate admissibility of HGN evidence under Daubert standard adopted by the Connecticut Supreme Court in 1997); State v. Ito, 90 Haw. 225, 978 P.2d 191 (Haw. Ct. App. 1999); Hulse v. State, 1998 MT 108, 961 P.2d 75, 289 Mont. 1 (Mont. 1998); n38 New Hampshire v. [*552] Duffy, 146 N.H. 648, 778 A.2d 415 (N.H. 2001) (using state evidence Rule 702 that requires showing of reliability before HGN evidence can be admitted; remanding to trial court to hold a hearing on the test's reliability); State v. Torres, n39 1999 NMSC 10, 976 P.2d 20, 127 N.M. 20 (N.M. 1999) (reversing trial court's ruling that HGN evidence was admissible, remanding for hearing using Daubert test). n40

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n38 The Hulse court held that neither the Frye nor Daubert tests were applicable to admissibility of HGN evidence because those tests were restricted to admissibility of "novel" scientific evidence and HGN test was not "novel" science. 961 P.2d at 91. Instead, the court applied Montana Evidence Rule 702, which was identical to the then current version of Fed. R. Evid. 702. The court did not rule on the admissibility of HGN evidence in a DWI/DUI criminal trial, as the appeal arose from a trial court decision denying Hulse's petition to reinstate driving privileges after they were suspended because Hulse refused to take a breathalyzer, and the only legal issues presented were the existence of probable cause to arrest for DWI/DUI, and the driver's refusal to take a breath test. Id. at 91-92. [**58]



n39 In Torres, the court made several significant rulings. First, it held that police officers are not qualified to testify about the scientific bases underlying the HGN test and are not competent to establish that the test is reliable. 976 P.2d at 32. It further held that it "is improper to look for scientific acceptance only from reported case law," and it declined to take judicial notice of the reliability of the HGN test because "we are not persuaded that HGN testing is 'a subject of common and general knowledge,' or a matter 'well established and authoritatively settled.'" Id. at 33. Finally, the court held that, although a qualified expert was needed to testify about the reliability of the HGN test and its results, a properly trained police officer could testify about the administration of the test "after an appropriate foundation regarding such [scientific] knowledge has been laid by another, scientific expert." Id. at 34. The care taken by the Torres court illustrates the difference in application of the Daubert test from the Frye test. Daubert requires analysis of the methodology used, its reliability and validity. Frye, on the other hand, may tempt a court faced with determining the admissibility simply to see what other courts have done in the past, as well as review publications supplied by the parties, or found by the court's own efforts, without engaging in the sometimes difficult analysis of the reliability of the science or technology underlying those sources. [**59]



n40 Ito used Hawaii Evidence Rule 702, which, in addition to the requirements of the then current version of Fed. R. Evid. 702, added the provision that the court "may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert." 978 P.2d at 200. The court held that judicial notice of the reliability of HGN evidence was not proper under Hawaii Evidence Rule 201 but that judicial notice of its reliability was proper under Hawaii common law which permits a trial court to take judicial notice of facts judicially noticed in case law from other jurisdictions. Id. at 208-09. In doing so, the court relied heavily on the Maryland Schultz opinion.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Third, of the state cases where the courts undertook the task of evaluating the admissibility of HGN evidence, the NHTSA studies and, in many instances, the testimony of Dr. Burns, figured prominently in their conclusions that the HGN tests were admissible as evidence of intoxication or impairment. See, e.g., Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998) [**60] (court relied on trial testimony of Dr. Burns, NHTSA training video and testimony of state trooper. Defendant called a psychology professor and neuro-ophthalmologist); State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (Ariz. 1986) (court considered trial court testimony of Dr. Burns, two police officers, NHTSA studies, and published articles on HGN test); People v. Joehnk, 35 Cal. App. 4th 1488, 42 Cal. Rptr. 2d 6 (Ca. Ct. App. 1995)(court considered trial testimony of Dr. Burns, NHTSA studies, testimony of a "criminalist" and a toxicologist. Defendant called an emergency room doctor to testify); State v. Ruthardt, 680 A.2d 349 (Del. Super. Ct. 1996) (court considered trial testimony of Dr. Burns, NHTSA studies, testimony of police officer, behavioral optometrist and neuro-ophthalmologist, defense introduced testimony of Dr. Cole, one of the defense witnesses in the pending case); Williams v. State, 710 So. 2d 24 (Fla. Ct. App. 1998) (Dr. Burns, a neurologist and three state doctors called as witnesses by the state); Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (Ga. Ct. App. 1996) (court relied [**61] on NHTSA studies, other state court rulings and articles); State v. Hill, 865 S.W.2d 702 (Mo. Ct. App. 1993) [*553] (Dr. Burns only witness called at trial on HGN test); State v. O'Key, 321 Ore. 285, 899 P.2d 663 (Or. 1995)(court considered testimony of Dr. Burns, an optometrist, police officer and NHTSA studies).

Finally, those courts that did not undertake an independent evaluation of the admissibility of HGN evidence tended simply to cite to the decisions of other state courts. See, e.g., Malone v. City of Silverhill, 575 So. 2d 101 (Ala. Crim. App. 1989); Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (Ga. Ct. App. 1996); State v. Garrett, 119 Idaho 878, 811 P.2d 488 (Idaho 1991); State v. Buening, 229 Ill. App. 3d 538, 592 N.E.2d 1222, 170 Ill. Dec. 542 (Ill. App. Ct. 1992); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Breitung, 623 So. 2d 23 (La. Ct. App. 1993); State v. Bresson, 51 Ohio St. 3d 123, 554 N.E.2d 1330 (Ohio 1990); State v. Cissne, 72 Wn. App. 677, 865 P.2d 564 (Wash. Ct. App. 1994); State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Wis. Ct. App. 1999). [**62]

B. Difference between Daubert/Kumho Tire/New Rule 702 and Frye.

The difference in approach between the Daubert/Kumho Tire/New Rule 702 and the Frye tests reveals an unmistakable irony. The Frye approach to admissibility of scientific evidence was criticized widely as being too "rigid" because it would deny admissibility to evidence that was the result of new scientific discovery that, while factually sound and methodologically reliable, had not yet gained general acceptance. Christopher Mueller & Laird Kirkpatrick, Evidence § 7.8 (4th ed. 1995); 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6266 (1997). Under the Daubert test, however, general acceptance was but one of the evaluative factors and, provided the evidence at issue was subject to being tested, did not suffer from an unacceptably high error rate and favorably had been peer reviewed, the evidence would be admitted because it was reliable. Under Daubert, therefore, it was expected that it would be easier to admit evidence that was the product of new science or technology.

In practice, however, it often seems as though the opposite has occurred--application of [**63] Daubert/Kumho Tire analysis results in the exclusion of evidence that might otherwise have been admitted under Frye. Although this may have been an unexpected outcome, it can be explained by the difference in methodology undertaken by the trial courts when measuring proffered evidence under Daubert/Kumho Tire, as opposed to Frye. HN32Go to the description of this Headnote.Under Daubert, the parties and the trial court are forced to reckon with the factors that really do determine whether the evidence is reliable, relevant and "fits" the case at issue. Focusing on the tests used to develop the evidence, the error rates involved, what the learned publications in the field have said when evaluating it critically, and then, finally, whether it has come be generally accepted, is a difficult task. But, if undertaken as intended, it does expose evidentiary weaknesses that otherwise would be overlooked if, following the dictates of Frye, all that is needed to admit the evidence is the testimony of one or more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted. Wright & Gold, 29 Federal Practice and Procedures § 6266 HN33Go to the description of this Headnote.("Daubert's focus upon multiple [**64] criteria for scientific validity compels the lower courts to abandon long existing per se rules of admissibility or inadmissibility grounded upon the Frye standard.").

Daubert's challenge is unmistakable. While courts may be skilled at research and analysis, the task of deciding the admissibility of new or difficult scientific or technical evidence involves subject matters that are highly specialized, and there is a [*554] risk that the court, forced to resolve an issue without the luxury of unlimited time to reflect on it, will get it wrong. This is especially true because judges do not determine the reliability of scientific or technical issues in the abstract but rather in the context of deciding a specific dispute. n41

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n41 Justice Stephen Breyer, all too aware of this problem, wrote in the introduction to the Reference Manual on Scientific Evidence 4 (2d ed. 2000):

Most judges lack the scientific training that might facilitate the evaluation of scientific claims or the evaluation of expert witnesses who make such claims. Judges are typically generalists, dealing with cases that can vary widely in subject matter. Our primary objective is usually process-related: seeing that a decision is reached in a timely way. And the decision of a law court typically . . . focuses on a particular event and specific individualized evidence.



See also Mueller & Kirkpatrick, Evidence § 7.8 (4th ed. 1995) ("The main difficulty [with the Daubert case] is that courts are ill equipped to make independent judgments on the validity of science. Most judges are not scientists, and they do not have the time to spend at trial or beforehand to make fully considered decisions on validity.").


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**65]

The principle shortcoming of Frye was that it excused the court from even having to try to understand the evidence at issue. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 702.05[1] (2d ed. 1997) (Under Frye "the court itself did not have to comprehend the science involved . . . [it] only had to assure itself that among the people involved in the field, the technique was acceptable as reliable."). Further, given the impact of the stare decisis doctrine, once a court, relying on Frye, had ruled that a doctrine or principle had attained general acceptance, it was all to easy for subsequent courts simply to follow suit. Before long, a body of case law could develop stating that a methodology had achieved general acceptance without there ever having been a contested, detailed examination of the underpinnings of that methodology. The admissibility of SFST evidence illustrates this hazard, as a review of the state cases reveals that, despite more than sixteen years of case law relating to this evidence, the number of instances where there have been factually well-developed and detailed challenges to the reliability and validity of the tests [**66] is extremely small.

Following the Kumho Tire decision and the December 2000 changes to Rule 702, a detailed analysis of the factual sufficiency and reliability of the methodology underlying expert testimony is required for all scientific, technical or specialized evidence, not just "novel scientific" evidence. This has required, at times, a reexamination of the admissibility of evidence that long has been admitted under the Frye test, which may result in exclusion of evidence that for years routinely has been admitted. See, e.g., United States v. Llera Plaza, 179 F. Supp. 2d 523, 2002 WL 32697 (E.D. Pa. 2002) (excluding aspects of evidence of latent fingerprint identification evidence on the basis of Daubert/Kumho Tire and Rule 702 analysis). As lawyers and courts become fully aware of the relatively recent additional requirements of Kumho Tire and revised Rule 702, this process of reexamination can be expected to continue. It may mean, in a very real sense, that "everything old is new again" with respect to some scientific and technical evidentiary matters long considered settled. Alarmists may see this as undesirable, envisioning courtrooms populated by mad [**67] scientists in white lab coats and overzealous judges in black robes, busily undoing established precedent. The more probable outcome is that judges, lawyers and expert witnesses will have to learn to be comfortable refocusing their thinking about the building blocks of what truly makes evidence that is beyond the knowledge and experience of lay persons [*555] useful to them in resolving disputes. The beneficiaries of this new approach will be the jurors that have to decide increasingly complex cases. Daubert, Kumho Tire, and now Rule 702 have given us our marching orders, and it is up to the participants in the litigation process to get in step.

C. Applying Daubert/Kumho Tire and Rule 702 in this Case

Many of the state cases debate whether SFST evidence is "scientific" or "novel science," and therefore subject to Frye analysis in the first instance. n42 Under the Federal Rules of Evidence, this debate is irrelevant, as newly revised Rule 702 and the Daubert/Kumho Tire cases require the same analysis for any evidence that is to be offered under Rule 702. Thus, if the SFSTs in this case are being offered as direct evidence of intoxication or impairment, they then become [**68] cloaked in a scientific or technical aura, and the factors articulated in Daubert/Kumho Tire and Rule 702 must be evaluated by the district court under Rule 104(a) before such evidence may be admitted. n43

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n42 See, e.g., Schultz v. State, 106 Md. App. 145, 664 A.2d 60 (Md. App. 1995) (discussing whether HGN and other SFSTs are "scientific evidence"); Hulse v. State, 1998 MT 108, 961 P.2d 75, 289 Mont. 1(Mont. 1998).


n43 HN34Go to the description of this Headnote.If offered only as circumstantial evidence of intoxication/impairment, the HGN test still clearly invokes scientific and technical underpinnings. The WAT and OLS SFSTs, however, involve only observations of the suspect's performance, and therefore, it may be argued that they are not couched in science and technology if used for that purpose.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

With regards to the HGN test, from the testimony before me, the materials submitted for my review by counsel, my review of all of the state cases decided to date, and many of the articles cited in those cases, HN35Go to the description of this Headnote.it [**69] cannot be disputed that there is a sufficient factual basis to support the causal connection between observable exaggerated horizontal gaze nystagmus in a suspect's eye and the ingestion of alcohol by that person. This connection is so well established that it is appropriate to be judicially noted under Rule 201. n44 That being said, however, it must quickly be added that there also are many other causes of nystagmus that are unrelated to alcohol consumption. The Schultz court identified thirty-eight possible causes of [*556] nystagmus, n45 and, in his testimony, Colonel Rabin agreed that most of the Schultz factors did, or possibly could, cause nystagmus in humans. Thus, the detectable presence of exaggerated HGN in a driver clearly is circumstantial, not direct, evidence of alcohol consumption.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n44 HN36Go to the description of this Headnote.The existence of a causal connection between alcohol ingestion and observable horizontal gaze nystagmus is the type of discrete adjudicative fact that properly may be judicially noticed under Rule 201 because it is a fact that can be accurately and readily determined by resort to sources whose accuracy cannot reasonably be questioned. This use of judicial notice is far more narrow than attempting to take judicial notice, as did the Court of Special Appeals in Schultz, that the SFSTs have attained general acceptance within the relevant scientific or technical community. Alternatively, the government may prove the causal relationship between alcohol consumption and exaggerated nystagmus by expert testimony, but in this regard I agree with the New Mexico Supreme Court's decision in State v. Torres, which held that HN37Go to the description of this Headnote.a police officer is unlikely to have the qualifications needed to testify under Rule 702 as to the scientific principles underlying the HGN test or as to whether there is a causal link between alcohol use and exaggerated nystagmus. 976 P.2d at 32, 34. Accordingly, asking the court to take judicial notice of this causal connection likely will be the most frequent method used by the government to prove this essential fact. An alternative would be to use learned treatises, under Rule 803(18), if a proper foundation first is established. The police officer will, of course, be qualified to testify as to the training received in how to administer the HGN test, and to demonstrate his or her qualifications properly to administer it. Because Officer Jarrell did not testify at the Rule 104(a) hearing, there is no factual basis before me at this time to permit me to make findings regarding the final factor under Rule 702, i.e., whether Jarrell properly administered and interpreted the SFSTs given to Horn. [**70]



n45 The court recognized the following causes or possible causes of nystagmus: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff's syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers, pain medication, and anti-convulsant medicine; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use. 664 A.2d at 77. HN38Go to the description of this Headnote.The fact that there are many other causes of nystagmus in the human eye also is the type of adjudicative fact that may be judicially noticed under Rule 201. Thus, the defendant in a DWI/DUI case may ask the court to judicially notice this fact, once the government has proved the causal connection between alcohol ingestion and exaggerated nystagmus. Alternatively, the defendant may seek to prove the non-alcohol related causes of nystagmus by other means, such as the testimony of an expert witness, cross examination of any such witness called by the government or through a properly admitted learned treatise. (Fed. Rule of Evid. Rule 803(18)).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**71]

As for the sufficiency of the facts and data underlying the assertions in the NHTSA articles that SFSTs are reliable in predicting specific BAC, the testimony of Horn's experts, as well as the literature that is critical of these studies, establishes that presently there is insufficient data to support these claims of accuracy. HN39Go to the description of this Headnote.The early NHTSA laboratory tests were too limited to support the claims of accuracy, and the subsequent field and validation testing insufficient to establish the reliability and validity of the tests if used to establish specific BAC. Indeed, the great weight of the state authority, including that in Maryland, agrees that BAC levels may not be proved by SFST test results alone, and I adopt that holding here.

The conclusion I have reached regarding the reliability of the methods and principles underlying the SFSTs takes into account the evidence introduced by Horn about the methods used to develop these tests, and the error rates associated therewith-- the first two Daubert/Kumho Tire factors. This alone precludes their admissibility to prove specific BAC, and it therefore is not necessary to discuss in detail whether the many articles written about these [**72] tests constitute peer review analysis or something else, and whether they generally have been accepted in a relevant, unbiased scientific or technical community, the third and fourth Daubert/Kumho Tire factors. I do note, however, the testimony of Horn's experts that the NHTSA publications regarding the SFSTs do not constitute peer review publications, a conclusion that seems correct. As Dr. Cole testified, peer review as contemplated by Daubert and Kumho Tire must involve critical analysis that can expose any weaknesses in the methodology or principles underlying the conclusions being reviewed.

Further, as testified to by Horn's experts, the process of selection of articles for publication in a peer review journal involves an evaluation by one or more experts in the field, to insure that the article meets the rigors of that field. Under this standard, most of the publications regarding the SFST tests, including the publications [*557] in bar journals, likely do not meet this criteria.

Similarly, despite the conclusion of many state courts that the SFSTs have received general acceptance among criminologists, law enforcement personnel, highway safety experts and prosecutors, [**73] I remain skeptical whether this is sufficient for purposes of Daubert and Kumho Tire. Acceptance by a relevant scientific or technical community implies that community has the expertise critically to evaluate the methods and principles that underlie the test or opinion in question. However skilled law enforcement officials, highway safety specialists, prosecutors and criminologists may be in their fields, the record before me provides scant comfort that these communities have the expertise needed to evaluate the methods and procedures underlying human performance tests such as the SFSTs. Some might say the same about judges, without fear of too much disagreement, but judges are the ones obligated to do so by Rule 104(a) when the admissibility of evidence is challenged. As to the conclusion of the state courts, more often than not expressed in passing and without analysis, that the SFSTs generally are accepted among psychologists like Dr. Burns, the evidence presented to me by the three psychologists called by Horn leads me, respectfully, to beg to differ. Thus, based on the foregoing, I conclude that the SFST evidence in this case does not, at this time, meet the requirements [**74] of Daubert/Kumho Tire and Rule 702 as to be admissible as direct evidence of intoxication or impairment.

A more difficult question, however, is whether the SFSTs may be used as circumstantial evidence of alcohol consumption and, if so, just how. The state courts overwhelmingly have concluded that the results of SFSTs are admissible as circumstantial evidence of alcohol consumption but have offered little guidance about what exactly the testifying officer may tell the fact finder about the SFSTs, their administration, and the performance of the suspect when doing them. The possibilities range from simply describing the tests--without explaining the scientific or technical bases underlying them or their claimed accuracy rates and describing only what the officer observed when they were performed, absent any opinions regarding whether the suspect "passed" or "failed" or assessment of the degree of intoxication or impairment--to a full explanation of the tests, their claimed accuracy, the number of "standardized clues" the suspect missed, and an opinion that the suspect "failed" the test--in short everything up to testimony about the specific BAC of the driver.

On the record before [**75] me there are not sufficient facts or data about the OLS and WAT SFSTs to support the conclusion that, if a suspect exhibits two out of eight possible clues on the WAT test or two out of four clues on the OLS, he has "failed" the tests. To the contrary, Horn introduced Dr. Cole's study that showed an alarmingly high error rate when police officers were asked to evaluate completely sober subjects performing the WAT and OLS. n46 Def's. Motion Exh. C. HN40Go to the description of this Headnote.To permit a police officer to testify about each of the SFSTs in detail, their claimed accuracy rates, the number of standardized clues applicable to each, the number of clues exhibited by the suspect, and then offer an opinion about whether he or she passed or failed, stopping just short of expressing an opinion as to specific BAC, invites the risk of allowing through the back door of circumstantial [*558] proof evidence that is not reliable enough to enter through the front door of direct proof of intoxication or impairment. Such testimony clearly is technical, if not scientific, and may not be admitted unless shown to be reliable under the standards imposed by Rule 702 and Daubert/Kumho Tire, which has not been done in this case.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n46 See supra at pp. 17-18. Cole reported that 46% of the officers that observed videotaped subjects with BAC levels of .0% performing the WAT and OLS tests reported that the subjects had too much to drink to be driving.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**76]

There is no factual basis before me to support the NHTSA claims of accuracy for the WAT and OLS tests or to support the conclusions about the total number of standardized clues that should be looked for or that missing a stated number means the subject failed the test. There is very little before me that suggests that the WAT and OLS tests are anything more than standardized procedures police officers use to enable them to observe a suspect's coordination, balance, concentration, speech, ability to follow instructions, mood and general physical condition--all of which are visual cues that laypersons, using ordinary experience, associate with reaching opinions about whether someone has been drinking.

Indeed, in Crampton v. State, 71 Md. App. 375, 525 A.2d 1087 (Md. App. 1987) HN41Go to the description of this Headnote.the Maryland Court of Special Appeals described field sobriety tests--other than the HGN test--administered by police to motorists as follows:



field sobriety tests are essentially personal observations of a police officer which determine a suspect's balance and ability to speak with recollection. There is nothing 'new' or perhaps even 'scientific' about the exercises that an officer requests [**77] a suspect to perform. Those sobriety tests have been approved by the National Highway Traffic Safety Administration and are simply guidelines for police officers to utilize in order to observe more precisely a suspect's coordination. It requires no particular scientific skill or training for a police officer, or any other competent person, to ascertain whether someone performing simple tasks is to a degree affected by alcohol. The field sobriety tests are designed to reveal objective information about a driver's coordination. . . . The Frye-Reed test does not apply to those field sobriety tests because the latter are essentially empirical observations, involving no controversial, new or 'scientific' technique. Their use is guided by practical experience, not theory.




525 A.2d at 1093-94. The same conclusion has been reached by many other state courts that have considered this issue. For example, in State v. Ferrer, 95 Haw. 409, 23 P.3d 744 (Haw. Ct. App. 2001), the court stated:



It is generally recognized, however, that the foundational requirements for admission of psychomotor FST evidence differ from the foundational requirements for admission of [**78] HGN evidence. Psychomotor FSTs test balance and divided attention, or the ability to perform multiple tasks simultaneously. While balancing is not necessarily a factor in driving, the lack of balance is an indicator that there may be other problems. Poor divided attention skills relate directly to a driver's exercise of judgment and ability to respond to the numerous stimuli presented during driving. The tests involving coordination (including the walk-and-turn and the one-leg-stand) are probative of the ability to drive, as they examine control over the subject's own movements. Because evidence procured by administration of psychomotor FSTs is within the common experience of the ordinary citizen, the majority of courts that have addressed the issue generally consider psychomotor FSTs to be nonscientific evidence.



[*559]
23 P.3d at 760-62 (citations omitted). n47 As the Florida District Court of Appeals said in State v. Meador, 674 So. 2d 826 (Fla. App. 1996):



While the psychomotor FSTs are admissible, we agree with defendants that any attempt to attach significance to defendants' performance on these exercises is beyond that attributable to any of the other [**79] observations of a defendant's conduct at the time of the arrest could be misleading to the jury and thus tip the scales so that the danger of unfair prejudice would outweigh its probative value. The likelihood of unfair prejudice does not outweigh the probative value as long as the witness simply describe their observations. Reference to the exercises by using terms such as 'test,' 'fail' or 'points,' however, creates a potential for enhancing the significance of the observations in relationship to the ultimate determination of impairment, as such terms give these layperson observations an aura of scientific validity. Therefore, such terms should be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment.




Id. at 832.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n47 The court cites to decisions from Alabama, Arizona, California, Georgia, Illinois, Maryland, Massachusetts, New York, Pennsylvania, Florida and Oregon that have reached the same conclusion about the nature of psychomotor FSTs like the WAT and OLS tests. 23 P.3d at 760-62.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**80]

I agree with this reasoning. If offered as circumstantial evidence of alcohol intoxication or impairment, the probative value of the SFSTs derives from their basic nature as observations of human behavior, which is not scientific, technical or specialized knowledge. To interject into this essentially descriptive process technical terminology regarding the number of "standardized clues" that should be looked for or opinions of the officer that the subject "failed" the "test," especially when such testimony cannot be shown to have resulted from reliable methodology, unfairly cloaks it with unearned credibility. Any probative value these terms may have is substantially outweighed by the danger of unfair prejudice resulting from words that imply reliability. I therefore hold that HN42Go to the description of this Headnote.when testifying about the SFSTs a police officer must be limited to describing the procedure administered and the observations of how the defendant performed it, without resort to terms such as "test," n48 "standardized clues," "pass" or "fail," unless the government first has established a foundation that satisfies Rule 702 and the Daubert/Kumho Tire factors regarding the reliability and validity of the [**81] scientific or technical underpinnings of the NHTSA assertions that there are a stated number of clues that support an opinion that the suspect has "failed" the test.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n48 It would be preferable to refer to the standardized field sobriety tests as "procedures," rather than tests, as the use of the word test implies that there is an accepted method of determining whether the person performing it passed or failed, and this has not been shown in this case. I recognize, however, that the HGN, WAT and OLS procedures have been referred to as field sobriety "tests" for so many years, that it is likely that it will be impossible to stop using this terminology altogether. Occasional reference to the HGN, WAT and OLS procedures as "tests" should not alone be grounds for a mistrial in a jury case. However, repeated use of the word "test" to describe these procedures, particularly when testifying as to how the defendant actually performed them, would be improper.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

This is not to say that HN43Go to the description of this Headnote.a police officer may not express an [**82] opinion as a lay witness that the defendant was intoxicated or impaired, if otherwise admissible under [*560] Rule 701. As recently amended, Rule 701 permits lay opinion testimony if: (a) rationally based upon the perception of the witness, (b) helpful to the fact finder and (c) if the opinion does not involve scientific, technical or specialized information. n49 There is near universal agreement that lay opinion testimony about whether someone was intoxicated is admissible if it meets the above criteria. See, e.g., Singletary v. Secretary of Health, 623 F.2d 217, 219 (2d Cir. 1980) ("The testimony of lay witnesses has always been admissible with regard to drunkenness."); United States v. Mastberg, 503 F.2d 465 (9th Cir. 1974); Malone v. City of Silverhill, 575 So. 2d 101 (Ala. Crim. App. 1990); State v. Lummus, 190 Ariz. 569, 950 P.2d 1190 (Ariz. App. 1997); Wrigley v. State, 248 Ga. App. 387, 546 S.E.2d 794, 798 (Ga. App. 2001) ("A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence."); State v. Ferrer, 95 Haw. 409, 23 P.3d 744 (Hawaii Ct. App. 2001); [**83] Com. v. Bowen, 52 Mass. App. Ct. 1110, 754 N.E.2d 1083 (Ma. App. 2001); State v. Hall, 353 N.W.2d 37, 43 (S.D. 1984); Beats v. State, 2000 Tex. App. LEXIS 4542, 2000 WL 921684 (Tex. Crim. App. 2000) ("A lay witness, including a police officer, may express an opinion about a person's intoxication."). See also John W. Strong, McCormick on Evidence § 11 (5th ed. 1999) ("The so-called 'collective fact' or 'short-hand rendition rule' [permits] opinions on such subjects as. . . a person's intoxication."); Graham, Handbook of Federal Evidence § 701.1 (5th ed. 2001)(lay witness permitted to offer opinion testimony that a person was intoxicated); Mueller and Kirkpatrick, Evidence § 7.4 (4th ed. 1995) ("One common example [of the collective facts doctrine] is lay testimony that someone was intoxicated, and here the witness is not confined to descriptions of glazed eyes, problems in speech or motor coordination, changes in behavior or mood or affect, but may say directly (assuming adequate observation and common experience) that the person seemed drunk or under the influence").

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n49 Maryland's equivalent evidence rule, 5-701, does not contain the third requirement imposed by the federal rule.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**84]

HN44Go to the description of this Headnote.In DWI/DUI cases, however, the third requirement of Rule 701, that the lay opinion is "not based on scientific, technical, or other specialized knowledge," will take on great importance. A police officer certainly may testify about his or her observations of a defendant's appearance, coordination, mood, ability to follow instructions, balance, the presence of the smell of an alcoholic beverage, as well as the presence of exaggerated HGN, and the observations of the defendant's performance of the SFSTs-- consistent with the limitations discussed above. The officer should not, however, be permitted to interject technical or specialized comments to embellish the opinion based on any special training or experience he or she has in investigating DWI/DUI cases. Just where the line should be drawn must be left to the discretion of the trial judge, but the officer's testimony under Rule 701 must not be allowed to creep from that of a layperson to that of an expert--and the line of demarcation is crossed if the opinion ceases to be based on observation and becomes one founded on scientific, specialized or technological knowledge.

CONCLUSION

To summarize, the Court holds that the following [**85] rulings apply to the case at bar:

(1) HN45Go to the description of this Headnote.The results of properly administered WAT, OLS and HGN SFSTs may be admitted into evidence in a DWI/DUI case [*561] only as circumstantial evidence of intoxication or impairment but not as direct evidence of specific BAC. Recognizing that Officer Jarrell, the arresting police officer in this case, may be the sponsor for this evidence, he must first establish his qualifications to administer the test. HN46Go to the description of this Headnote.Unless qualified as an expert witness under Rule 702 to express scientific or technical opinions regarding the reliability of the methods and principles underlying the SFSTs, Officer Jarrell's foundational testimony will be limited to the instruction and training received and experience he has in administering the tests and may not include opinions about the tests' accuracy rates. If Officer Jarrell testifies about the results of the HGN test, he may testify as to his qualifications to detect exaggerated HGN, and his observations of exaggerated HGN in the Horn, but may not, absent being qualified under Rule 702 to do so, testify as to the causal nexus between alcohol consumption and exaggerated HGN. HN47Go to the description of this Headnote.When testifying about Horn's performance of the SFSTs, Officer [**86] Jarrell may describe the SFSTs he required Horn to perform and describe Horn's performance, but Officer Jarrell may not use language such as "test," "standardized clues" or express the opinion that Horn "passed" or "failed," because the government has not shown, under Rule 702 and the Daubert/Kumho Tire decisions, that these conclusions are based on sufficient facts or data and are derived from reliable methods or principles.

(2) HN48Go to the description of this Headnote.The government may prove the causal connection between exaggerated HGN in Horn's eyes and alcohol consumption by one of the following means: asking the court to take judicial notice of it under Rule 201; the testimony of an expert qualified under Rule 702; or through learned treatises, introduced in accordance with Rule 803(18). In response to proof of the causal connection between alcohol consumption and exaggerated HGN, Horn may prove that there are other causes of HGN than alcohol by one of the following methods: asking the court to take judicial notice of this fact under Rule 201; cross-examining any expert called by the government; by calling a defense expert witness, qualified under Rule 702, or through leaned treatises, introduced in accordance [**87] with Rule 803(18).

(3) HN49Go to the description of this Headnote.Assuming the government can establish the elements of Rule 701, Officer Jarrell may give lay opinion testimony that Horn was intoxicated or impaired by alcohol. Such testimony must be based on Officer Jarrell's observations of Horn and may not include scientific, technical or specialized information.

Date 1-31-02

Paul W. Grimm

United States Magistrate Judge

Appendix
STATE CASE HOLDING
4th CIRCUIT U.S. v. Daras, 1998 WL Held WAT and OLS were not
726748 (4th Cir. 1998). scientific so no expert needed.
(Unpublished opinion). Would have applied Daubert to HGN
test but there was no need to
because breathalyzer, WAT, and OLS
were sufficient.
MARYLAND Schultz v. State, 664 A.2d Court took judicial notice of
60 (Md. App. 1995). reliability of the HGN test,
leaving only the officer's
qualifications to administer the
test and the administration of the
test in question. HGN is not
reliable enough to determine
precise BAC.
Applied Frye/Reid standard.
Wilson v. State, 723 A.2d Cites to Shultz, above, and holds
494 (Md. App. 1999). that HGN is not admissible for
determining precise BAC or even
estimates.
ALABAMA Malone v. City of HGN testing satisfies Frye standard
Silverhill, 575 So. 2d 101 and is admissible--provided a
(Ala. Crim. App.1989), proper foundation has been laid
rev'd on other grounds, regarding police officer's
Ex Parte Malone, 575 So. qualifications and reliability of
2d 106 (1990). the HGN test and its underlying
scientific principals.
ALASKA Ballard v. State, 955 P.2d HGN meets Frye standard if the test
931 (Alaska Ct.App.1998). results are admitted for the
limited purpose of establishing
that a person has consumed alcohol
and is therefore potentially
impaired. HGN evidence may be a
factor in determining intoxication
but may not be used to quantify a
BAC.
$ HState v. Coon 974 P.2d 386 Adopts Daubert standard and holds
(Alaska 1999) the voice spectograph analysis
evidence is admissible under
Daubert.
ARIZONA State v. Superior Court, HGN test is sufficiently reliable
718 P.2d 171 (Ariz. 1986). to establish probable cause to
arrest and satisfies Frye standard
for scientific evidence. HGN cannot
be used to establish precise BAC.
State v. Ricke, 778 P.2d Frye test was used. Court held that
1358 ( Ariz. App. 1989). the officer may state his opinion
that based on the results of the
HGN test the defendant's BAC was
above .10-- but only to corroborate
chemical testing. HGN may be used
as independent evidence to prove
DUI.
State v. City Court of Clarifying the holding in State v.
$ HCity Mesa, 799 P.2d 855 Superior Court above: HGN test
(Ariz. 1990). satisfies Frye for limited
purposes. HGN results may be used
in the absence of chemical tests
to show whether a person is under
the influence in the same manner as
other field sobriety tests and
opinions of intoxication. "In such
a case, HGN test results may be
admitted only for the purpose of
permitting the officer to testify
that, based on his training and
experience, the results indicated
possible neurological dysfunction,
one cause of which could be alcohol
ingestion. The proper foundation
for such testimony, which the state
may lay in the presence of the
jury, includes a description of the
officer's training, education, and
experience in administering the
test and a showing that the test
was administered properly. The
foundation may not include any
discussion regarding accuracy with
which HGN test results correlate
to, or predict, a BAC of greater or
less than .10%." 799 P.2d at
859-860.
ARKANSAS Whitson v. State, 863 S.W. Holding that the results of the HGN
2d 794 (Ark. 1993). test are relevant to show alcohol
consumption in conjunction with
other field sobriety tests. The
court highlighted the fact that HGN
test was not used to quantify BAC
so the test need not be evaluated
as novel scientific evidence. Court
notes they apply the "Prater" test
(a more liberal test than the Frye
standard) to novel science.
CALIFORNIA People v. Leahy, 882 P.2d HGN testing is a "new scientific
321 (Cal. 1994). technique" and must satisfy
Kelly/Frye standard. Remanded for
Kelly hearing regarding general
acceptance.
People v. Williams, 3 Cal. Police officer is not qualified to
App.4th 1326 (Cal. Ct. give expert opinion that nystagmus
App. 1992). was caused by alcohol consumption.
His experience does allow him to
administer HGN and observe signs of
nystagmus. Concluded that results
of HGN testing might be admissible
if linked to qualified expert
testimony. Question of whether the
Frye/Kelly test applies was not
decided because it was not ripe.
People v. Joehnk, 35 Cal. Applied Kelly/Frye standard. Held
App.4th 1488 (Cal. Ct. that, in this case, sufficient
App. 4th 1995). evidence was introduced to show
that a majority of the scientific
community accepts that nystagmus
can be caused by alcohol
consumption and HGN can be used in
conjunction with other tests and
observations in determining that
the defendant was intoxicated.
COLORADO
CONNECTICUT State v. Russo, 773 A.2d Proper foundation must be
965 (Conn. App. Ct. 2001) established in accordance with
Daubert prior to introduction of
HGN test results.
DELAWARE State v. Ruthardt, 680 HGN is scientific testimony and
A.2d 349 (Del. Super. Ct. must satisfy rules of evidence: (1)
1996). expert being offered is qualified;
(2) the evidence offered is
otherwise admissible, relevant and
reliable; (3) the specialized
knowledge being offered will assist
the trier-or-fact in understanding
the evidence or in determining a
factual issue; (4) The scientific
technique and its underlying
principles are reasonably relied
upon by the experts in the field;
and (5) such evidence would not
create unfair prejudice, confusion
of issues or mislead the jury. HGN
results may be admitted to
corroborate or attack chemical
analysis but not to quantify BAC.
Absent chemical analysis the
results are admissible, as is other
evidence of defendant's behavior,
to circumstantially prove driver
was under the influence.
FLORIDA Williams v. State, 710 So. Uses Frye test. Holds that the HGN
2d 24. (Fla. Dist Ct. App. test is "quasi-scientific" and is
1998). already generally accepted in the
scientific community and therefore
there is no need for trial courts
to continue to reapply a Frye
Analysis. Once a proper foundation
has been laid that the test was
correctly administered by a
qualified DRE (drug recognition
expert), judicial notice can be
taken that HGN test results are
generally accepted as reliable and
are admissible.
HGN cannot be used to establish
precise BAC.
Bowen v. State, 745 So. 2d Expands Williams above. Trooper was
1108 (Fl. Dist. Ct. App. allowed to explain to jury the
1999) roadside sobriety testing he
performed, including the HGN test.
However, in this district, before
the HGN evidence is admissible,
there must be a confirmatory blood,
breath, or urine test. Trooper
explained how he administered the
HGN and that movements of the
defendant's eyes suggested
intoxication.
GEORGIA Hawkins v. State, 476 S.E. Uses the Frye test. HGN is
2d 803 (Ga. Ct. App. generally accepted and therefore
1996). can be admitted into evidence
without first obtaining experts
regarding HGN's scientific
validity.
HAWAII$ HState v. Ito, 90 Haw. 225, Uses Hawaii Rules of Evidence 702 &
978 P.2d 191 (Hawaii Ct. 703 for admissibility of scientific
App. 1999). or technical evidence. This test is
more probative than Frye and much
closer to Daubert as it allows
inquiry into "reliability." Court
held, (1) HGN test results have
been sufficiently established to be
reliable and are therefore
admissible as evidence that police
had probable cause to believe
defendant was DUI; (2) court may
take judicial notice of the
validity of the principles
underlying HGN; (3) before
admitting HGN into evidence, it
must be shown that (a) officer
administering test was duly
qualified to conduct test and grade
it, and (b) test was performed
properly in the case. Case remanded
for further proceedings because of
indications that test was not
properly performed.
State v. Ferrer, 23 P.3d FSTs, such as OLS and WAT (but
744 (Hawaii Ct. App. excluding HGN) are non-scientific
2001). in nature and an officer may
testify about his/her own
observations and opinions in
regards to those FSTs. An officer,
however, cannot testify that a
person "failed" or "passed"
these tests without first laying a
proper foundation.
IDAHO State v. Garrett, 811 P.2d Uses Frye test. HGN can be used as
488 (Idaho 1991). circumstantial evidence of
intoxication. HGN tests may not be
used at trial to establish BAC in
absence of chemical testing.
ILLINOIS People v. Buening, 592 HGN satisfies Frye standard and may
N.E.2d 1222 (Ill. App. Ct. be admitted as evidence of
1992). intoxication provided proper
foundation has been laid. HGN
cannot be used to establish precise
BAC.
People v. Basler, 740 Holds that, unless Defendant offers
N.E.2d 1 (Ill. 2000) evidence to show HGN is
scientifically unsound, a Frye
hearing is not required. Officer's
training and proper administration
of the test in question is
required.
INDIANA
IOWA State v. Murphy, 451 Held that testimony given by a
N.W.2d 154 (Iowa 1990). properly trained officer with
respect to the administration and
results of the HGN test is
admissible without further
scientific evidence. Officer could
testify that it was his opinion
based on the field sobriety tests,
the defendant was under the
influence. However, officer cannot
make an unequivocal comment about
defendant's guilt.
KANSAS State v. Witte, 836 P.2d HGN test results are scientific
1110 (Kan. 1992). evidence and must satisfy Frye
standard. The reliability of HGN
test in the scientific community is
not a settled proposition. Remanded
for trial court to decide if HGN
satisfies Frye.
State v. Chastain, 960 Court concluded that HGN test had
P.2d 756 (Kan. 1998). not achieved general acceptance
within the relevant scientific
community and its exclusion was
appropriate.
KENTUCKY Com. v. Rhodes, 949 S.W.2d No foundation was laid at trial as
621 (Ky. Ct. App. 1996). to the officer's qualifications for
administering HGN. This was not
properly objected to, however, and
thus it could not be concluded that
his testimony was erroneously
admitted.
LOUISIANA State v. Armstrong, 561 Held that HGN test satisfies Frye
So.2d 883 (La. Ct. App. standard and with proper foundation
1990) may be admitted as evidence of
intoxication. Proper foundation
requires establishing officer's
qualifications for administering
and interpreting results.
State v. Breitung, 623 So. Affirming Armstrong.
2d 23 (La. Ct. App.
1993).
MAINE State v. Taylor, 694 A.2d Held that, as long as the officer
907 (Me. 1997) is properly trained and evidence
establishes the test was properly
administered, test is admissible
but not to quantify exact BAC.
MARYLAND SEE ABOVE
MASSACHUSETTS Com. v. Sands, 675 N.E.2d Held that HGN test relies on
370 (Mass. 1997). scientific theory and expert
testimony is required to meet
either Daubert or Frye standard.
Officer's qualifications to
administer the test and proper
administration of the test must
also be established.
MICHIGAN People v. Berger, 551 Recognized that HGN test is
N.W.2d 421 (Mich. Ct. App. scientific evidence and that its
1996). general acceptance and reliability
have been established to satisfy
Frye standard. Expressed no opinion
regarding the use of HGN to
quantify BAC.
MINNESOTA State v. Klawitter, 518 Affirms trial courts ruling that
N.W.2d 577 (Minn. 1994). HGN satisfies Frye standard and
concludes that HGN results are
admissible when sufficient
foundation has been laid.
MISSISSIPPI Young v. City of Uses Frye standard and finds HGN is
Brookhaven, 693 So. 2d a scientific test but is not
1355 (Miss. 1997). generally accepted within the
scientific community. Therefore it
is inadmissible before a jury. HGN
test can be used to show probable
cause at a probable cause hearing.
MISSOURI State v. Hill, 865 S.W.2d Uses the Frye standard. State
702 (Mo. Ct. App. 1993). established HGN general acceptance
at trial. Court found that when
properly administered by someone
adequately trained, the HGN test is
admissible as evidence of
intoxication. In this case, the
officer testified that in his
experience, someone who performs as
defendant did on the HGN test would
register above a .10 BAC on a
breathalyzer. His testimony was not
objected to at trial, and the court
found that his testimony did not
amount to plain error. This case
was later overruled on other
grounds in State v. Carson 941
S.W.2d 518 (Mo. 1997).
Duffy v. Director of FSTs (such as WAT and OLS) can be
Revenue, 966 S.W.2d 372 used to establish probable cause
(Mo. Ct. App. 1998). without first laying a Frye
foundation. HGN was considered a
scientific test, and court found it
should not have been admitted at
trial because the administering
officer was not aware how to
properly score it and interpret its
results.
MONTANA Hulse v. State, 961 P.2d HGN test is not "novel" scientific
75 (Mont. 1998). evidence, therefore Daubert
standard need not be met. Must
satisfy Mont. Evid. Rule 702. State
must show proper administration of
the test, officer's training, and
establish a scientific basis for
the reliability of the test under
Rule 702.
NEBRASKA State v. Baue, 607 N.W.2d Held that HGN test meets the Frye
191 (Neb. 2000). standard for acceptance and is
admissible for the limited purposes
of showing the person had an
impairment that may have been
caused by alcohol but not
admissible for proving precise BAC.
NEVADA
NEW HAMPSHIRE State v. Duffy, 778 A.2d HGN test is based on scientific
415 (N.H. 2001). principals. As such it must meet a
threshold of reliability to be
admissible pursuant to N.H. R.
Evid. 702
NEW JERSEY State v. Doriguzzi, 760 HGN is a scientific test and must
A.2d 336 (N.J. Super. Ct. meet Frye standard to be admissible
App. Div. 2000)
NEW MEXICO State v. Torres, 976 P.2d. HGN is scientific and thus subject
20 (N. M. 1999). to Daubert. Only after a scientific
expert establishes the evidentiary
reliability of the scientific
principles underlying the test may
a qualified police officer testify
about administering of the test.
Court also noted that judicial
notice of the reliability of HGN
would be inappropriate at this
time.
NEW YORK People v. Erickson, 549 Before HGN evidence is introduced,
N.Y.S.2d 182 (N.Y. App. a proper foundation as to its
Div. 1989). scientific acceptance or
reliability must be laid. Although
foundation was not introduced at
trial, court found this was a
harmless error because of the
amount of evidence against
defendant.
NORTH CAROLINA State v. Helms, 504 S.E.2d HGN is a scientific test and thus a
293 (N.C. 1998). proper foundation, such as expert
testimony of its reliability, must
be laid before it is admissible.
NORTH DAKOTA City of Fargo v. With proper foundation regarding
McLaughlin, 512 N.W.2d officer's qualifications and the
700 (N.D. 1994). proper administration of the test
in the case at bar, HGN evidence is
admissible only as circumstantial
evidence of intoxication and not as
a means of quantifying BAC.
OHIO State v. Bresson, 554 A properly qualified officer may
N.E.2d 1330 (Ohio 1990). testify regarding a driver's
performance on the HGN test and
whether the driver was under the
influence but not to quantify BAC.
Also holding that admission of the
HGN test is no different from any
other field sobriety test.
OKLAHOMA Yell v. State, 856 P.2d Uses Frye test and holds HGN test
996 (Okla. Crim. App. results cannot be used to quantify
1993) BAC. (In 1995, this court abandoned
Frye test and adopted Daubert in
Taylor v. State, 889 P.2d 319
(Okla. Crim. App. 1995).
OREGON State v. O'Key, 899 P.2d Uses Daubert factors and holds that
663 (Or. 1995) HGN admissible to show a person is
under the influence but not to
quantify BAC. This limited
admissibility, however, is still
subject to a foundational showing
that the officer who administered
the test was properly qualified,
the test was administered properly,
and the results were recorded
accurately.
PENNSYLVANIA Com. v. Apollo, 603 A.2d Held that PA uses Frye standard.
1023 (Pa. Super. Ct. Trial court excluded HGN on the
1992). grounds that Frye standard had not
been met by the evidence presented
by prosecution. Trial court's order
to exclude HGN was affirmed.
RHODE ISLAND
SOUTH CAROLINA State v. Sullivan, 426 HGN evidence may be used to
S.E.2d 766 (S.C. 1993). indicate insobriety but is not
conclusive proof of DUI and may not
be used to quantify BAC.
SOUTH DAKOTA
TENNESSEE State v. Murphy, 953 HGN test is scientific evidence,
S.W.2d 200 (Tenn. 1997). and, therefore, it must be offered
through an expert witness and
satisfy the requirements of Tenn.
Rules of Evid. 702 and 703.
TEXAS Emerson v. State, 880 Uses Daubert. Testimony concerning
S.W.2d 759 (Tex. Crim. HGN test is admissible as expert
App. 1994). testimony provided the theory
underlying the test is valid and
technique applied correctly. Not
accurate enough to prove precise
BAC.
UTAH Salt Lake City v. Garcia, Officer's testimony regarding HGN
912 P.2d 997 (Utah Ct. testing was limited to only his
App. 1996). training, experience and
observations without relying on
underlying scientific basis and was
thus admissible. Evidence was not
offered as scientific and therefore
did not have to meet applicable
scientific standard (and court did
not address what that standard
would have been.).
VERMONT
VIRGINIA
WASHINGTON State v. Cissne, 865 P.2d Held HGN testing must meet Frye
564 (Wash. Ct. App. 1994). standard and remanded for lower
court's determination of the
question.
WEST VIRGINIA State v. Barker, 366 Frye test was used. HGN test
S.E.2d 642 (1988). results cannot be used to estimate
BAC but can be used to show that
driver was under the influence.
Because the State needed to bring
in evidence to demonstrate HGN's
reliability, the court reversed and
remanded.
This case was overruled on other
grounds in State v. Nichols, 541
S.E.2d 310. (W.Va. 1999).
WISCONSIN State v. Zivcic, 598 A properly qualified officer may
N.W.2d 565 (Wis. Ct. App. testify regarding HGN results.
1999).
WYOMING Smith v. State ex rel. Held that a properly qualified
Wyoming Dept. of Transp., police officer may testify
11 P.3d 931 (Wyo. 2000). regarding results of HGN test at an
administrative hearing.
Additionally, under Wyoming law an
administrative agency, acting in a
quasi judicial or judicial role,
does not need to satisfy technical
rules of evidence so Daubert does
not apply.
[**88]



January 31, 2002, Decided