DWI Detection and Standardized Field Sobriety Testing
Preliminary Breath Testing (PBT)
3-17
D. Preliminary Breath Testing
Description
Many
states have enacted preliminary breath testing (PBT) laws. These laws permit a
police
officer to request a driver suspected of DWI to submit to a roadside breath
test
prior
to arrest. PBT laws vary significantly from one state to another. A typical
statute
reads
as follows:
“When
an officer has reason to believe from the manner in which a person is operating
or
has operated a motor vehicle that the person has or may have committed the
offense
of
operating while under the influence, the officer may request that person to
provide a
sample
of breath for a preliminary test of the alcohol content of the blood using a
device
approved
for this purpose.”
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
PBT Application
3-18
Application
PBT
results are used to assist in determining whether an arrest should be made. The
results
usually are not admissible as substantive evidence against the defendant in
court.
However, PBT laws may provide statutory or administrative penalties if the
driver
refuses
to submit to the test. These penalties may include license suspension, fines or
other
sanctions.
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178 R5/13 13 of 29
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
• Landmark
court decisions relevant to the
admissibility of Standardized Field
Sobriety Tests (SFSTs) and Horizontal
Gaze Nystagmus (HGN)
• Challenges
based on:
• Scientific
validity and reliability
• Relationship
of HGN to specific BAC level
• Officer
training, experience, and application
Case Law Reviews
3-19
E. Case Law Reviews
The
following cases are landmark court decisions relevant to the admissibility of
Standardized
Field Sobriety Tests (SFSTs) and Horizontal Gaze Nystagmus (HGN).
Challenges
to the admissibility have been based on (1) scientific validity and
reliability;
(2)
relationship of HGN to specific BAC level; and (3) officer training,
experience, and
application.
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178 R5/13 14 of 29
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
State v. Blake
3-20
• State
versus Blake (718 P.2d 171 Arizona
1986) is the landmark case
• The
Blake case established a very
important precedent in Arizona.
Emphasize that Blake is the landmark case.
State versus Blake (718 P.2d 171 Arizona 1986)
The
State of Arizona (Petitioner) vs. The Superior Court of the State of Arizona,
in and
for
the county of Cochise, and the Hon. James L. Riles, Division III (Respondent)
and
Frederick
Andrew Blake (Real Party in Interest) No. 18343-PR Court of Appeals No. 2
CA-SA
0254 Cochise Co. No. 11684 April 7, 1986.
The
Blake case established a very important precedent in Arizona. The trial court
ruled
that
the HGN test was not reliable under Frye v. United States, 293 F.2d 1013 (DC
Cir.
1923)
and thus could not be used as part of probable cause. The case was dismissed
by
the trial court. This ruling was appealed by the state and the order of
dismissal was
reversed
by the court of appeals and the case was remanded for further proceedings
(7/25/85).
The
appellate court decision was reviewed by the State Supreme Court. The State
Supreme
Court approved the court of appeal's opinion, as modified, and vacated the
trial
court's dismissal of the Blake prosecution for DWI and remanded the case for
proceedings
not inconsistent with its opinion.
Following
is a summary of the facts of the case and a brief overview of the appellate
court
and Supreme Court opinions.
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178 R5/13 15 of 29
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
State v. Blake (Cont.)
3-21
• After
the defendant was stopped for DUI,
he was given field sobriety tests
• The
officer also administered a
Horizontal Gaze Nystagmus (HGN) test
• SCRI
researchers found that they could
determine whether a person was above
or below a .10 blood alcohol level 80% of
the time.
FACTS: After
the defendant was stopped for DUI, he was given field sobriety tests on
which
he did fair. The officer also administered a Horizontal Gaze Nystagmus (HGN)
test
and estimated that defendant's blood alcohol content was .17. The intoxilyzer
showed
a .163 reading. At the motion to suppress, the state presented testimony from
the
SCRI project director which originally researched the HGN test.
SCRI
researchers found that they could determine whether a person was above or
below
a .10 blood alcohol level 80% of the time. Finnish researchers had reached the
same
results. The project director testified that HGN has been accepted by various
researchers,
various police agencies and the National Highway Traffic Safety
Administration.
The police officer who helped develop and standardize HGN testified
about
his field experience with HGN and his work in the research on HGN. The officer
testified
that HGN was particularly useful in detecting drivers who had over .10 alcohol
in
their blood who would otherwise pass the field sobriety tests. The Arizona
officer who
administers
HGN training testified that experienced drinkers with .13 or .14 reading
could
pass the other field sobriety tests and evade arrest. He testified that to be
certified
for
HGN the officer had to perform 35 practice tests and then had to pass an exam
where
they must determine the blood alcohol level of subjects within .02 four out of
five
times.
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178 R5/13 16 of 29
The
training officer also testified that the officer must continue to use the test
regularly in
the
field and should be evaluated to make sure the officer maintains his
proficiency.
The
arresting officer testified that he was certified as an HGN specialist. The
arresting
officer
testified without HGN results, he did not think he had probable cause to arrest
the
defendant.
The trial court ruled that the HGN test was not reliable under Frye v. United
States
and thus could not be used as part of probable cause. Accordingly, the court
dismissed
the prosecution. The STATE appealed this decision.
ISSUE:
Did the trial court err in excluding the HGN evidence?
RULING:
Yes, "We conclude that the record shows not only that the HGN is
sufficiently
reliable
to provide probable cause for arrest, but that with the proper foundation as to
the
expertise of the officer administering it, testimony concerning the
administration of
the
test and its results is admissible at trial. The record shows that the HGN test
has
gained
general acceptance in the field in which it belongs." The court went on to
say
that
they were unable to rule on whether the results of this particular HGN test
would be
admissible
because the only evidence about the officer's proficiency was his testimony
that
he was certified. The court of appeals noted that the officer kept a log of
when he
administered
the test and said, "This log would be useful if it demonstrated that (the
arresting
officer) was as proficient in the field as he was on the examination." The
order
of
dismissal is reversed and the case is remanded for further proceedings.
Mr.
Blake sought review of the court of appeals opinion and it was granted by the
Arizona
Supreme Court.
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
State v. Blake (Cont.)
3-22
• The
trial court ruled that the HGN test
was not reliable under Frye v. United
States and thus could not be used as part
of probable cause. Accordingly, the court
dismissed the prosecution. The STATE
appealed this decision.
• Did
the trial court err in excluding the
HGN evidence?
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
State v. Blake (Cont.)
3-22
• The
trial court ruled that the HGN test
was not reliable under Frye v. United
States and thus could not be used as part
of probable cause. Accordingly, the court
dismissed the prosecution. The STATE
appealed this decision.
• Did
the trial court err in excluding the
HGN evidence?
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178 R5/13 17 of 29
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
Is the HGN Test
Sufficiently Reliable?
3-23
ISSUES:
Whether the HGN test is sufficiently reliable to establish probable cause to
arrest
for DWI
Whether
HGN test results are sufficiently reliable to be introduced in evidence at
trial.
CONCLUSION: "We find that the Horizontal Gaze Nystagmus test properly
administered
by a trained police officer is sufficiently reliable to be a factor in
establishing
probable cause to arrest a driver for violating A.R.S.28-692(B). We further
find
that the Horizontal Gaze Nystagmus test satisfies the Frye test for reliability
and
may
be admitted in evidence to corroborate or attack, but not to quantify, the
chemical
analysis
of the accused's blood alcohol content. It may not be used to establish the
accused's
level of blood alcohol in the absence of a chemical analysis showing the
proscribed
level in the accused's blood, breath or urine. In subsection (A) prosecutions
it
is
admissible, as is other evidence of defendant's behavior, to prove that he was
under
the
influence."
We
approve the court of appeals' opinion, as modified, vacate the trial court's
dismissal
of
the Blake prosecution for violation of A.R.S.28-792(B), and remand for
proceedings
not
inconsistent with this opinion.
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178 R5/13 18 of 29
Session 3 – The Legal Environment
DWI Detection and Standardized Field Sobriety Testing
• Arresting
officer attempted to testify to
his opinion concerning the subject's BAC
based solely on the angle of onset of
HGN
• Court
held Officer was not:
• Entitled
to testify as a lay or expert witness
about HGN
• Formally
or properly trained in HGN
People v. Loomis
3-24
A
detailed analysis of the facts reviewed by the Supreme Court is contained in
the
opinion
PEOPLE vs. LOOMIS (California, 1984) 156 Cal. App. 3d 1, 203 Cal. Rptr. 767
(Cal.
Super. 1984).
The
arresting officer attempted to testify to his opinion concerning the subject's
BAC, in
quantitative
terms, based solely on the angle of onset of HGN. The subject had refused
to
submit to a chemical test. The court held that the officer was not entitled to
testify as
either
a lay or expert witness about HGN, or to give his opinion about the defendant's
BAC.
The court held that HGN is a new form of scientific evidence that will be
allowed
only
when there is a preliminary showing of its general acceptance in the scientific
community.
Moreover, it was clear from the officer's testimony that he had not been
formally
or properly trained in HGN, and didn't really understand how the test is to be
given.
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178 R5/13 19 of 29
Standardized Field
Sobriety Testing
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