UNITED STATES,
v.
Eric D. HORN.
No. CRIM A. 00-946-PWG.
Jan. 31, 2002.
Defendant
charged, under Assimilative Crimes Act, with driving while intoxicated (DWI)
moved to exclude evidence of his performance on field sobriety tests. The
District Court, Grimm, United States
Magistrate Judge, held that: (1) test results were admissible on issue of
whether there was probable cause for arrest, but not for purpose of proving
specific blood alcohol content (BAC); (2) arresting officer could testify with
respect to his observations of defendant's performance of tests, but could not
suggest that tests were objective indicators of intoxication; (3) if government
introduced evidence that defendant exhibited nystagmus, defendant could bring
out fact that there were many causes of nystagmus other than alcohol ingestion;
and (4) arresting officer could give lay opinion testimony that defendant was
driving while intoxicated.
Ordered
accordingly.
MEMORANDUM AND ORDER
GRIMM, United States
Magistrate Judge.
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.FN1 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.),FN2 as assimilated
by 18 U.S.C. § 7, 13, the Assimilative
Crimes Act, a Class A misdemeanor.
FN1. 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.).
(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.
[1][2][3][4][5][6][7] 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.FN3 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: FN4
FN3. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
FN4. 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 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).
(1) 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”); FN5
FN5. 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. 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, 85 S.Ct. 223, 13 L.Ed.2d 142 (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.
(2) The
results of the SFSTs, either individually or collectively, are not admissible
for the purpose of proving the specific blood alcohol content (“BAC”) of a
driver charged with DWI/DUI; FN6
FN6. 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.
(3)
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,FN7 which may be
judicially noticed by the Court pursuant to Fed.R.Evid. 201, proved
by expert testimony or otherwise;
FN7. 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.
(4) 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) 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) 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, *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.FN8 Accordingly, this
opinion will discuss the basis for the above rulings in more detail below.
FN8. See, e.g., Kay v. United States, 255 F.2d 476 (4th Cir.1958) (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).
1. Applicable Rules of Evidence
[8] 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).
Whether
the results of SFSTs are admissible depends first on the purpose for which they
are offered. Fed. Rule of Evid. 105. Second, the SFSTS must be relevant and not
excessively prejudicial for the purposes offered. Fed. Rules of Evid. 401,
403. Third, 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, 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.
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,FN9 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.FN10 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, technical or other specialized information, the requirements of Rule 702, as recently
revised, are of paramount importance.
FN9. 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 (1986); State v. Ito, 90 Hawai‘i 225, 978 P.2d 191 (App.1999); State v. Baue, 258 Neb. 968, 607 N.W.2d 191, 197 (2000) and Appendix.
FN10. See
cases cited infra at p. 552, and Appendix.
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 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.FN11
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 the vast
majority of the state cases that have analyzed this issue have done so under
the FryeFN12 standard for admitting scientific or technical
evidence: whether the methods or
principles have gained general acceptance within the relevant scientific or
technical community.FN13 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.
FN13. See
state cases cited infra at pp. 551 - 552 and Appendix.
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 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. FN14 *536 and Herbert Moskowitz, Ph.D. of the Southern
California Research Institute (“SCRI”)titled “Psychophysical Tests for DWI
Arrests” (the “1977 Report”);
FN14. 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. 552 - 553. 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.
* 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 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.FN15
FN15. 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: 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.
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 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][u]sing 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,FN16 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:
FN16. At the time of
Horn's arrest, Maryland law stated that, “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, 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.).
[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 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).
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
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,FN17 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 “[i]f 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 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.
FN17. 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.
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 thousand,
two-one thousand,” etc. Id. The
NHTSA manual identifies four “standardized clues” for the OLS test FN18 and instructs law enforcement officers that “[i]f 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.
FN18. The four clues
are swaying while balancing, using arms for balance, hopping, and putting a
foot down. Id. at VIII-24.
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 Study and the Florida Validation Study.FN19 Id. at Exs.
4-8.
FN19. The Florida
Validation Study is undated. During the
Rule 104(a) hearing,
there was testimony from Spurgeon 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.
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
[9] Rule 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 *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, 113 S.Ct. 2786; 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 re-testing 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. 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, 113 S.Ct. 2786; 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.
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 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 .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 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 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 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 safety may influence how the
test is performed.FN20 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 have not been adequately
field tested.FN21 Id.
FN20. This criticism
is especially significant in light of the third evaluative factor in Rule 702. 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.
FN21. 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.
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 “[i]t 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 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 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: FN22
FN22. The information
reported in the chart is found in Def's. Reply Memo, Ex.6 at 1-13.
|
|
1977 Report
|
1981 Report (Lab & Field Phases)
|
1983 Report
|
1995 Colo. Study
|
Fla.
Study
|
|
|
|
1. In the lab the HGN test was
administered using a chin rest which facilitated making HGN
observations. This was not done in the
field.
|
1. Serious flaws include 20% false
positive evaluations of intox.; very
high error rates in reliability if using SFSTs to predict BAC.
|
1. Report seriously flawed, does not
meet professional standards of testing community.
|
1. Report describes results of
impaired driving arrests from seven Colorado law enforcement
organizations. Report too incomplete
to draw any conclusions about the validity of the test.
|
1. Report too incomplete to permit
meaningful evaluation.
|
|
|
|
2. A single set of data was used to
determine criterion score and to evaluate accuracy of test, which
artificially inflates estimate of accuracy.
|
2. HGN test affected by time of day,
no adjustment in scoring.
|
2. Failure to monitor data collection
by officers. Cannot tell if decisions
based on SFSTs or prelim. breath test (PBT).
|
2. Methodology results and data
sections of report are missing.
|
2. Methodology not described, and data
regarding methodology not provided in report.
|
|
|
|
3. Tests are not age & gender
neutral, and age/gender differences can affect ability to perform SFSTs.
|
3. Test/retest reliability rates very
low.
|
3. Arrest decisions made on PBT
results as well as SFSTs. Not possible
to tell reliability of SFSTs.
|
3. Data generated by “volunteer”
officers-suggesting possible bias.
|
3. Data incompletely described.
|
|
|
|
4. In lab tests officers were
monitored to insure correct performance of tests, not done in field.
|
4. Report states testing officers did
not necessarily base decisions on results of SFSTs, making validity suspect.
|
4. Authors fail to report the data
from N.C. Test site-over 25% of data for whole test.
|
4. No monitoring of data collection to
verify reporting methodology. Officers
merely reported results.
|
|
|
|
|
5. Test results differ in
statistically significant respects depending on time of day that HGN test was
performed, yet test scoring did not account for difference in time of day
test was administered.
|
5. Authors admit field test data not
appropriate for statistical significance testing, and could be biased.
|
5. No statistical tests conducted on data.
|
5. Results unclear, particularly
because two different arrest standards used (one for intoxication, another
for impaired)
|
|
|
|
|
6. The study was not peer reviewed,
and would not have been accepted if offered.
|
6. High error rates. 28.6% of subjects
with “legal” BAC arrested, and 50% of subjects w/ BAC > 0.10 not arrested.
|
6. SFSTs not administered in standard
fashion.
|
|
|
|
|
|
|
7. Officers selected for study not
representative of police officers across the board.
|
7. Authors acknowledge “extreme
caution” needed in analyzing data collected in study. Accuracy of data suspect.
|
|
|
|
|
|
|
8. Authors reported that in field some
officers forgot or ignored standardized procedure to administer SFSTs.
|
|
|
|
|
-----
*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 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. 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 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 would have been unacceptable in real world situations; FN23
FN23. 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).
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.
*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.
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 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”).FN24 Govt's.
Opposition Memo, Exhs. 1-7.
FN24. 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.
*546 Additionally, the Government introduced
the affidavit of Lieutenant Colonel Jeff C. Rabin, 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.FN25 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.
FN25. 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.
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 Rabin 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
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 (1986). In that decision,
based on the testimony before the trial court by Dr. Burns and three police
officers, and using the FryeFN26 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. Id., 718 P.2d at 180. The court therefore held that HGN evidence
was admissible to prove driver intoxication/impairment. FN27 Id. at 181.
FN27. 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.” Id., 718 P.2d at 181. In State v. City Court of the City of Mesa, 165 Ariz. 514, 799 P.2d 855 (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. Id., 799 P.2d at 860.
*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.FN28 I will, however, discuss certain of the state
cases in this opinion, as they are essential to understanding the rulings
reached herein.
FN28. 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.
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 (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. Id., 664 A.2d at 69-74. In doing so, the court observed that under *548Rule 5-702 FN29 of the 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 (1978).FN30 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.FN31 Id., 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. Id. 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 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,FN32 and the NHTSA
1983 Field Evaluation. Id. at 73
and n. 12.
FN29. 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 (1978). To this day,
Maryland has declined to adopt the Daubert test. Burral v. State, 352 Md. 707, 724 A.2d 65, 80 (1999)(“We have not abandoned Frye or Reed.”); Clark v. State, 140 Md.App. 540, 781 A.2d 913, 935 & n. 13 (2001); State v. Gross, 134 Md.App. 528, 760 A.2d 725, 757 (2000); Schultz, 664 A.2d at 64 n. 3.
Thus, 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.
FN30. Maryland cases
routinely refer to the Frye test as the “Frye/Reed ” test. This opinion will as well.
FN31. As noted at pp.
534 - 535, in December 2000 the Federal Rules of Evidence were amended. Among the rules that were changed was Rule 702, the expert
opinion rule. 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.
FN32. Edward B.
Tenney, The Horizontal Gaze Nystagmus Test and the Admissibility of
Scientific Evidence, 27 New Hampshire Bar Journal 179 (1986)
(hereinafter “Tenney article”).
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 “[i]f 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,” FN33 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.
FN33. Tenney article
at 187.
[10] The doctrine of
judicial notice is predicated upon the assumption that the source materials
from which the court takes judicial notice are reliable. FN34 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.
FN34. Indeed, in this
regard, the Maryland and Federal Rules of Evidence are substantially identical. Rule 5-201 and 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, 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, 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.
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 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.
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.FN35 Neither can it be disputed that, given the
volume 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.FN36 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” or “hit by technology.” FN37
FN35. 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.
FN36. 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.
FN37. “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 Hawai‘i 409, 23 P.3d 744, 765 n. 6 (App.2001)(quoting State v. O'Key, 321 Or. 285, 899 P.2d 663, 672 n. 6) (jurors may be “overly impressed with the aura of
reliability surrounding scientific evidence”).
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, 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, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Ruthardt, 680 A.2d 349 (Del.Super.Ct.1996); State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991); State v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222
(1992);
State v. Taylor, 694 A.2d 907 (Me.1997); Wilson v. State, 124 Md.App. 543, 723 A.2d 494 (1999); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (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 (1990); State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995); State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993); Emerson v. State, 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 (1986); People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 882 P.2d 321 (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 (1996); Garrett, 119 Idaho 878, 811 P.2d 488 (1991); State v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222
(1992);
State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); State v. Armstrong, 561 So.2d 883 (La.Ct.App.1990); Schultz, 106 Md.App. 145, 664 A.2d 60 (1995); People v. Berger, 217 Mich.App. 213, 551 N.W.2d 421 (1996); State v. Klawitter, 518 N.W.2d 577 (Minn.1994); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State v. Cissne, 72 Wash.App. 677, 865 P.2d 564 (1994). Some courts,
however, have used other evidentiary standards. See, e.g., Connecticut v. Russo, 62 Conn.App. 129, 773 A.2d 965 (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 Hawai‘i 225, 978 P.2d 191 (App.1999); Hulse v. State, 289 Mont. 1, 961 P.2d 75 (1998); FN38 New Hampshire v.
*552 Duffy, 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,FN39 127 N.M. 20, 976 P.2d 20 (1999) (reversing trial court's ruling that HGN evidence was
admissible, remanding for hearing using Daubert test). FN40
FN38. 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.
FN39. 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 “[w]e 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.
FN40. 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.
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)(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 (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 (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 (1996) (court relied 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 Or. 285, 899 P.2d 663 (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 (1996); State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991); State v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222
(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 (1990); State v. Cissne, 72 Wash.App. 677, 865 P.2d 564 (1994); State v. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (1999).
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 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.
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 (“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.”).
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.FN41
FN41. 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.”).
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
“[t]he 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 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 (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 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. FN42 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
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. FN43
FN42. See, e.g., Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995) (discussing whether HGN and other SFSTs are “scientific
evidence”); Hulse v. State, 289 Mont. 1, 961 P.2d 75 (1998).
FN43. 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.
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, it 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. FN44 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,FN45 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.
FN44. 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
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.
FN45. 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. 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)).
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. 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 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, I remain skeptical whether this is sufficient
for purposes of Daubert and Kumho Tire. Acceptance by a relevant
scientific or technical community implies that 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 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 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.FN46 Def's. Motion
Exh. C. 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.
FN46. See supra
at pp. 539 - 540. 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 had too much to
drink to be driving.
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 (1987) 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 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.
Id., 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 Hawai‘i 409, 23 P.3d 744 (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 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 Id., 23 P.3d at 760-62
(citations omitted).FN47 As the Florida
District Court of Appeals said in State v. Meador, 674 So.2d 826 (Fla.App.1996):
FN47. 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. Id., 23 P.3d at 760-62.
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 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.
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 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,” FN48 “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 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.
FN48. 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.
This is
not to say that a police officer may not express an 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.FN49 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 (App.1997); Wrigley v. State, 248 Ga.App. 387, 546 S.E.2d 794, 798 (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 Hawai‘i 409, 23 P.3d 744 (App.2001); Com. v. Bowen, 52 Mass.App.Ct. 1110, 754 N.E.2d 1083, 2001 WL 1014539
(2001);
State v. Hall, 353 N.W.2d 37, 43 (S.D.1984); Beats v. State, 2000 WL 921684 (Tex.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”).
FN49. Maryland's
equivalent evidence rule, 5-701, does not contain the third requirement imposed
by the federal rule.
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 rulings apply to the case at bar:
(1) 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.
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.
When testifying about Horn's performance of the SFSTs, Officer 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) 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 with Rule 803(18).
(3)
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.
Appendix
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|
STATE
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CASE
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HOLDING
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|
|
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4th CIRCUIT
|
U.S. v. Daras, 1998 WL 726748 (4th
Cir.1998). (Unpublished opinion).
|
Held WAT and OLS were not scientific
so no expert needed. Would have
applied Daubert to HGN test but there was no need to because breathalyzer,
WAT, and OLS were sufficient.
|
|
|
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MARYLAND
|
Schultz v. State, 60 (Md.App.1995).
|
Court took judicial notice of
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 494
(Md.App.1999).
|
Cites to Shultz, above, and holds that
HGN is not admissible for determining precise BAC or even estimates.
|
|
|
|
ALABAMA
|
Malone v. City of Silverhill, 575
So.2d 101 (Ala.Crim.App.1989), rev'd on other grounds, Ex Parte Malone, 575
So.2d 106 (1990).
|
HGN testing satisfies Frye standard
and is admissible-provided a proper foundation has been laid regarding police
officer's qualifications and reliability of the HGN test and its underlying
scientific principals.
|
|
|
|
ALASKA
|
Ballard v. State, 955 P.2d 931 (Alaska
Ct.App.1998).
|
HGN meets Frye standard if the test
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.
|
|
|
|
|
State v. Coon 974 P.2d 386 (Alaska
1999)
|
Adopts Daubert standard and holds the
voice spectograph analysis evidence is admissible under Daubert.
|
|
|
|
ARIZONA
|
State v. Superior Court, 149 Ariz.
269, 718 P.2d 171 (Ariz.1986).
|
HGN test is sufficiently reliable to
establish probable cause to arrest and satisfies Frye standard for scientific
evidence. HGN cannot be used to
establish precise BAC.
|
|
|
|
|
State v. Ricke, 161 Ariz. 462, 778
P.2d 1358 (Ariz.App.1989).
|
Frye test was used. Court held that 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 City Mesa, 165
Ariz. 514, 799 P.2d 855 (Ariz.1990).
|
Clarifying the holding in State v. Superior
Court above: HGN test 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, 314 Ark. 458, 863
S.W.2d 794 (Ark.1993).
|
Holding that the results of the HGN
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, 8 Cal.4th 587, 34
Cal.Rptr.2d 663, 882 P.2d 321 (Cal.1994).
|
HGN testing is a “new scientific
technique” and must satisfy Kelly/Frye standard. Remanded for Kelly hearing regarding
general acceptance.
|
|
|
|
|
People v. Williams, 3 Cal.App.4th
1326, 5 Cal.Rptr.2d 130 (Cal.Ct.App.1992).
|
Police officer is not qualified to give
expert opinion that nystagmus 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.App.4th 1488,
42 Cal.Rptr.2d 6 (Cal.Ct.App. 4th 1995).
|
Applied Kelly/Frye standard. Held that, in this case, sufficient
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, 62 Conn.App. 129, 773
A.2d 965 (Conn.App.Ct.2001)
|
Proper foundation must be established in
accordance with Daubert prior to introduction of HGN test results.
|
|
|
|
DELAWARE
|
State v. Ruthardt, 680 A.2d 349
(Del.Super.Ct.1996).
|
HGN is scientific testimony and must
satisfy rules of evidence: (1) the 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.2d 24. (Fla. Dist Ct.App.1998) .
|
Uses Frye test. Holds that the HGN test is
“quasi-scientific” and is 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 1108
(Fl.Dist.Ct.App.1999)
|
Expands Williams above. Trooper was allowed to explain to jury the
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, 223 Ga.App. 34, 476
S.E.2d 803 (Ga.Ct.App.1996).
|
Uses the Frye test. HGN is generally accepted and therefore can
be admitted into evidence without first obtaining experts regarding HGN's
scientific validity.
|
|
|
|
HAWAII
|
State v. Ito, 90 Hawai‘i 225, 978 P.2d
191 (Hawai'i.Ct.App.1999).
|
Uses Hawaii Rules of Evidence 702
& 703 for admissibility of scientific 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, 95 Hawai‘i 409, 23
P.3d 744 (Hawai'i.Ct.App.2001).
|
FSTs, such as OLS and WAT (but
excluding HGN) are non-scientific 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, 119 Idaho 878, 811
P.2d 488 (Idaho 1991).
|
Uses Frye test. HGN can be used as circumstantial evidence
of intoxication. HGN tests may not be
used at trial to establish BAC in absence of chemical testing.
|
|
|
|
ILLINOIS
|
People v. Buening, 229 Ill.App.3d 538,
170 Ill.Dec. 542, 592 N.E.2d 1222 (Ill.App.Ct.1992).
|
HGN satisfies Frye standard and may be
admitted as evidence of intoxication provided proper foundation has been
laid. HGN cannot be used to establish
precise BAC.
|
|
|
|
|
People v. Basler, 193 Ill.2d 545, 251
Ill.Dec. 171, 740 N.E.2d 1 (Ill.2000)
|
Holds that, unless Defendant offers 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 N.W.2d 154 (Iowa
1990).
|
Held that testimony given by a
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, 251 Kan. 313, 836 P.2d
1110 (Kan.1992).
|
HGN test results are scientific
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, 265 Kan. 16, 960
P.2d 756 (Kan.1998).
|
Court concluded that HGN test had not
achieved general acceptance within the relevant scientific community and its
exclusion was appropriate.
|
|
|
|
KENTUCKY
|
Com. v. Rhodes, 949 S.W.2d 621
(Ky.Ct.App.1996).
|
No foundation was laid at trial as 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 So.2d 883
(La.Ct.App.1990)
|
Held that HGN test satisfies Frye
standard and with proper foundation may be admitted as evidence of
intoxication. Proper foundation
requires establishing officer's qualifications for administering and
interpreting results.
|
|
|
|
|
State v. Breitung, 623 So.2d 23
(La.Ct.App.1993).
|
Affirming Armstrong.
|
|
|
|
MAINE
|
State v. Taylor, 694 A.2d 907
(Me.1997)
|
Held that, as long as the officer 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, 424 Mass. 184, 675
N.E.2d 370 (Mass.1997).
|
Held that HGN test relies on
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
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People v. Berger, 217 Mich.App. 213,
551 N.W.2d 421 (Mich.Ct.App.1996).
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Recognized that HGN test is scientific
evidence and that its general acceptance and reliability have been
established to satisfy Frye standard.
Expressed no opinion regarding the use of HGN to quantify BAC.
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MINNESOTA
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State v. Klawitter, 518 N.W.2d 577
(Minn.1994).
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Affirms trial courts ruling that HGN
satisfies Frye standard and concludes that HGN results are admissible when
sufficient foundation has been laid.
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MISSISSIPPI
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Young v. City of Brookhaven, 693 So.2d
1355 (Miss.1997).
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Uses Frye standard and finds HGN is a
scientific test but is not 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.
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MISSOURI
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State v. Hill, 865 S.W.2d 702 (Mo.Ct.App.1993).
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Uses the Frye standard. State 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).
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Duffy v. Director of Revenue, 966
S.W.2d 372 (Mo.Ct.App.1998).
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FSTs (such as WAT and OLS) can be used
to establish probable cause 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.
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MONTANA
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Hulse v. State, 289 Mont. 1, 961 P.2d
75 (Mont.1998).
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HGN test is not “novel” scientific
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.
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NEBRASKA
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State v. Baue, 258 Neb. 968, 607
N.W.2d 191 (Neb.2000).
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Held that HGN test meets the Frye
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.
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NEVADA
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NEW HAMPSHIRE
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State v. Duffy, 778 A.2d 415
(N.H.2001).
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HGN test is based on scientific
principals. As such it must meet a
threshold of reliability to be admissible pursuant to N.H. R. Evid. 702
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NEW JERSEY
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State v. Doriguzzi, 334 N.J.Super.
530, 760 A.2d 336 (N.J.Super.Ct.App.Div.2000)
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HGN is a scientific test and must meet
Frye standard to be admissible.
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NEW MEXICO
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State v. Torres, 127 N.M. 20, 976 P.2d
20 (N.M.1999).
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HGN is scientific and thus subject 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.
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NEW YORK
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People v. Erickson, 156 A.D.2d 760,
549 N.Y.S.2d 182 (N.Y.App.Div.1989).
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Before HGN evidence is introduced, a
proper foundation as to its 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.
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NORTH CAROLINA
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State v. Helms, 348 N.C. 578, 504
S.E.2d 293 (N.C.1998).
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HGN is a scientific test and thus a
proper foundation, such as expert testimony of its reliability, must be laid
before it is admissible.
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NORTH DAKOTA
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City of Fargo v. McLaughlin, 512
N.W.2d 700 (N.D.1994).
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With proper foundation regarding
officer's qualifications and the 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.
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OHIO
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State v. Bresson, 51 Ohio St.3d 123,
554 N.E.2d 1330 (Ohio 1990).
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A properly qualified officer may
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.
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OKLAHOMA
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Yell v. State, 856 P.2d 996
(Okla.Crim.App.1993)
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Uses Frye test and holds HGN test
results cannot be used to quantify BAC. (In 1995, this court abandoned Frye
test and adopted Daubert in Taylor v. State, 889 P.2d 319
(Okla.Crim.App.1995).
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OREGON
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State v. O'Key, 321 Or. 285, 899 P.2d
663 (Or.1995)
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Uses Daubert factors and holds that
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.
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PENNSYLVANIA
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Com. v. Apollo, 412 Pa.Super. 453, 603
A.2d 1023 (Pa.Super.Ct.1992).
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Held that PA uses Frye standard. Trial court excluded HGN on the grounds that
Frye standard had not been met by the evidence presented by prosecution. Trial court's order to exclude HGN was
affirmed.
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RHODE ISLAND
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SOUTH CAROLINA
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State v. Sullivan, 310 S.C. 311, 426
S.E.2d 766 (S.C.1993).
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HGN evidence may be used to indicate
insobriety but is not conclusive proof of DUI and may not be used to quantify
BAC.
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SOUTH DAKOTA
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TENNESSEE
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State v. Murphy, 953 S.W.2d 200
(Tenn.1997).
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HGN test is scientific evidence, and,
therefore, it must be offered through an expert witness and satisfy the
requirements of Tenn. Rules of Evid. 702 and 703.
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TEXAS
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Emerson v. State, 880 S.W.2d 759
(Tex.Crim.App.1994).
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Uses Daubert. Testimony concerning HGN test is admissible
as expert testimony provided the theory underlying the test is valid and
technique applied correctly. Not
accurate enough to prove precise BAC.
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UTAH
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Salt Lake City v. Garcia, 912 P.2d 997
(Utah Ct.App.1996).
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Officer's testimony regarding HGN
testing was limited to only his 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.).
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VERMONT
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VIRGINIA
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WASHINGTON
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State v. Cissne, 72 Wash.App. 677, 865
P.2d 564 (Wash.Ct.App.1994).
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Held HGN testing must meet Frye standard and
remanded for lower court's determination of the question.
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WEST VIRGINIA
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State v. Barker, 179 W.Va. 194, 366
S.E.2d 642 (1988).
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Frye test was used. HGN test 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, 208 W.Va. 432, 541 S.E.2d 310. (W.Va.1999).
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WISCONSIN
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State v. Zivcic, 229 Wis.2d 119, 598
N.W.2d 565 (Wis.Ct.App.1999).
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A properly qualified officer may
testify regarding HGN results.
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WYOMING
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Smith v. State ex rel. Wyoming Dept.
of Transp., 11 P.3d 931 (Wyo.2000).
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Held that a properly qualified police
officer may testify 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.
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D.Md.,2002.
U.S. v.
Horn
185
F.Supp.2d 530, 58 Fed. R. Evid. Serv. 357
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