Are the Police Qualified to Testify on HGN?

feel the focus should now be. We address judicial notice first, and then the matter of the officer's qualifications, both generally and specifically.

Judicial Notice


In Faya v. Almaraz, 329 Md. 435, 444-47 (1993), the Court of Appeals held:

[I]n order to place a complaint in context, we may take judicial notice of additional facts that are either matters of common knowledge or capable of certain verification. Included in the latter category are facts "capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute." In the medical context we have relied, for example, on basic information about sexually transmitted diseases as found in medical journals and reports of the Centers for Dis‑

ease Control. See B.N. v. K.K., 312 Md. 135, 139-40, 538 A.2d 1175 (1988) (genital herpes is a contagious, painful, and incurable dis­ease, spread by sexual contact, that endangers public health). The Maryland Court of Special Appeals has relied on similar sources to assess the need for precautions against AIDS transmission. . . .

Before examining the legal sufficiency of the appellants' complaints, therefore, we focus on several well-established and scien­tifically understood facts about AIDS and its transmission. . . .

.                 . . .

These characteristics of HIV and AIDS, which the lower court also recognized, are proper objects of judicial notice. We, therefore, reject the appellants' threshold contention that the court below . . . errone­ously adopted . . . information that [was] properly the subject of expert testimony, open

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to challenge at trial. . . . These facts derive from reputable scientific journals and institutions and are well-accepted within the medical community. [Citations and footnotes omitted.]

See also B.N. v. K.K., 312 Md. 135, 139-40 (1988) , taking judicial notice that "[ g] enital herpes is . . . contagious, painful, and incurable . . . spread by sexual contact. It is an infectious disease that endangers public health." (Footnotes omitted.); Keene

Corp. v. Hall, 96 Md. App. 644, 660, cert. denied, 332 Md. 741 (1993) , an

asbestos case, in which we held the Frye/Reed standard had not been met in respect to the test there at issue, but took "judicial notice that inanimate material and tissue from human beings have different properties." We took notice of certain medical and scientific facts in regard to the wearing of gloves by court personnel dealing with defendants believed to have AIDS in Wiggins v.

State, 76 Md . App. 188, 198 (1988), rev'd on other grounds, 315 Md . 232 (1989), though we made no formal announcement that we were taking judicial notice of those scientific facts.

Judge Getty for this Court, in one of the first cases involving genetic marker blood testing, Haines v. Shanholtz, 57 Md. App.

92, 97-100, cert. denied, 300 Md. 90 (1984) , discussed in depth Reed v. State, supra. He stated that unlike Frye, Reed has survived Daubert, supra.

He noted that the issue in Reed (voice prints) was not, at the time of that case, generally accepted as scientifically reliable; "the

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Court of Appeals in Reed was dealing with an acknowledged division

in the scientific community.

. ."

Id. at 98.


He further


commented that the Court of Appeals, even in its Reed decision, recognized the feasibility of taking judicial notice of accepted scientific facts, noting:

In Reed, (voice print), authored by Judge Eldridge, the Court stated that a trial court may take judicial notice of the reliability of a scientific technique if it is generally accepted in the scientific community.

Id. at 97. The Reed Court had stated, "On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests, fingerprint identifica­tion, blood tests, and the like." 283 Md. at 380.

In Sharp v. Sharp, 58 Md. App. 386, 396 (1984) , we noted: "Judicial notice of a fact is an acceptable substitute for formal proof of such fact, when formal proof is clearly unnecessary to enhance the accuracy of the fact-finding process." See also Mark Downs,

Inc. v. McCormick Prop., 51 Md. App. 171, 187 (1982) (assuming it proper to take judicial notice that tropical storm "David" was an "Act of God.")

Maryland Rule 5-201 continues the long-standing practice of allowing an appellate court to take judicial notice of adjudicative

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facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." In the case sub judice, the "fact" at issue is whether the HGN test is generally accepted in the scientific community as a reliable indicator of an increased blood alcohol content. There are a number of sources that may be consulted to determine that issue, including scientific journals and other such literature. Because the test is so frequently, even predominantly, used in a forensic setting, however, there is another, equally reliable, source — the holdings of other courts that have examined the question.

It is not a precondition to taking judicial notice at the appellate level to "reinvent the wheel" in every case. If a sufficient number of courts have examined the relevant evidence presented on the issue in other cases and have concluded from that evidence that the test is, or is not, generally accepted in the scientific community, there is no reason why we have to insist that the same evidence be presented again in the case before us. We can draw our own conclusions from the collection of holdings of our sister (or brother) courts, including those that have found a sufficient basis for taking judicial notice.

In People v. Buening, 5 92 N. W. 2d 1222 (Ill. App. 5 Dist.), cert.

denied, 602 N.E.2d 460 (1992), the court discussed those cases that had held that HGN testing was merely "field testing" and those that had held that it was scientific. (The trial court had not allowed

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the evidence on the grounds that its prejudicial effect outweighed its probative value). The appellate court resolved the issue for the prosecution by, in effect, taking judicial notice of the reliability of the test. After discussing several of the cases

from other states, emphasizing Superior Court, supra, and noting the reports of the United States Department of Transportation as cited in Bresson, supra, the Illinois Court held:

Such factors in conjunction with the reasoning in State v. Superior Court, lead us to believe the HGN test meets the standards of admissibility under Frye and HGN test results may be admitted as evidence of intoxication as long as a proper foundation for admitting such evidence has been laid. A proper foundation should consist of describing the officer's education and experience in administering the test and showing that the procedure was properly admin­istered.

Id. at 1227. The Buening court did note that it was not accepting HGN testing to qualify the exact amount of alcohol (BAC) in a defendant's blood in the absence of a chemical analysis of blood, breath, or urine. Thus, it held that the results are admissible in regard to the presence of alcohol, generally, when chemical tests do not exist, and, additionally, when chemical tests do exist, to corroborate or attack that chemical analysis.

The appellate court for the Fourth District of Illinois, in People v. Hood, 638 N.E.2d 264 (Ill. App. 4 Dist. 1994) , adopted the

Buening holding in applying that state's implied consent statute and

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took judicial notice of the reliability of the HGN test, primarily basing its holding on Buening:

As the fifth district determined the HGN test was sufficiently reliable to met the Frye standard . . . in criminal proceedings, we are persuaded it is sufficiently reliable to be admitted in implied-consent proceedings; thus, where evidence involving the HGN test is sought to be admitted in implied-consent proceedings, the State need not call an expert witness to attest to its reliability.

Id. at 274.

In State v. Armstrong, 561 So.2d 883, 887 (La. App. 2 Cir. 1990) ,

writ denied, 568 So.2d 1077 (La. 1990) , the court essentially took judicial notice of the reliability and acceptance of the HGN test by adopting the Superior Court holding:

We choose to follow the reasoning in State v. Superior Court, County of Cochise, supra, that the HGN test meets the standards of admissibility in Frye and, with a proper foundation, may be admitted as evidence of intoxication. We also follow the reasoning of . . . Superior Court . . . and its progeny, in finding that a proper foundation for admitting the test has been laid when a showing has been made that the officer . . . was trained in the procedure, was certified in its administration and that the procedure was properly administered. [Emphasis added.]

The Court of Criminal Appeals of Alabama in Malone v. City of

Silverhill, supra, 575 So.2d 101, essentially took judicial notice of the reliability of HGN tests when it opined: "The fact that nystagmus

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can be caused by the consumption of alcohol is also accepted by the medical profession." Id. at 102. It continued:

Its [the HGN test's] use became so widespread that the United States Department of Transpor­tation outlined the appropriate procedures for administering the test, in its National High­way Traffic Safety Administration Bulletin DOT HS 806 512.

Id. at 103. Then, it opined that the Arizona Court in State v. Superior

Court, supra, had held, "after extensive research . . . there had been sufficient scrutiny of the effects of alcohol on nystagmus to permit a conclusion as the reliability of the HGN test." Id. at103. The Alabama court then held that "we are satisfied that the holding of the Arizona Supreme Court is a correct one.     We,therefore, adopt this standard as our own."

Thereafter, the Supreme Court of Alabama reversed the Court of Criminal Appeals of Alabama in Ex parte Malone, supra, 575 So.2d 106. It appears to have rejected the intermediate appellate court's

ultimate holding that the error was harmless and accepted that court's second position that the trial court erred in permitting the officer to testify as to HGN testing without having laid a Frye foundation in the case. It did not address the intermediate court's apparent judicial notice and adoption of the Superior Court holding. In any event, the adoption language of the intermediate court remains hanging in legal limbo and, apparently, is inopera­tive in view of the higher court's resolution.

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In State v. Bresson, supra, 554 N.E.2d 1330, the Ohio Supreme Court took judicial notice of the reliability of HGN testing. An intermediate appellate court had reversed a trial court opinion on the basis that the trial court had permitted evidence of HGN testing without there having been any foundation laid as to its reliability. The Bresson court noted that Ohio does not apply the

Frye standard and acknowledged that no foundation had been laid at trial. It then opined that most of Ohio's intermediate appellate courts had allowed such evidence based only on an officer's testimony, on the grounds that HGN testing was merely another field test. The court then noted a split among other jurisdictions as to whether the test was a scientific test. Without deciding whether it was or was not a scientific test, and with no foundation having been laid in the case before it, the Ohio court, relying on the decisions of the courts of other states, and on its own intermedi­ate appellate court, opined, at 1334:

We find that the HGN test has been shown to be a reliable indicator of BAC levels. Accord­ingly, results of this test are admissible so long as the proper foundation has been shown both as to the officer's training and ability to administer the test and as to the actual technique used by the officer in administering the test.

The Supreme Court of Montana, applying its rules of evidence and discounting Frye, adopted the holdings of the appellate courts

of Texas, Arizona, and Illinois in its case of State v. Clark, supra, 762

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P.2d at 856. It opined that the "better approach is to admit all
relevant scientific evidence in the same manner as other expert
testimony and allow its weight to be attacked by cross-examination

It ruled that the "pivotal question now becomes one of

.  . . ."

proper foundation." Id.

In Emerson v. State, supra, 880 S.W.2d 759, the en banc court took judicial notice of the reliability of the theory underlying HGN testing and of its technique as to indicate the general presence of alcohol but not as it related to specific BAC. The court rejected the State's assertion that HGN test results should be admitted merely as opinion evidence, stating: "[T]he HGN test . . . is based on a scientific theory." The court then held:

Judicial Notice

. . . In the instant case, however, the trial court made no such inquiry concerning the admissibility of the HGN evidence . . . . Therefore, we now inquire into the reliability of the HGN test pursuant to the doctrine of judicial notice.

We are authorized to take judicial notice of any scientific fact which "is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be

questioned." McCormick on Evidence at § 330. The concept of judicial notice extends to scien­tific techniques and principals.

Once a scientific principle is suf­ficiently established, a court may take judicial notice of the validity of that principle. . . .

.                 . . .

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. . . By examining scientific articles outside the record of the instant case, we can determine what course of action to take with regards to the reliability of the HGN test.

Id. at 764-65 (citations and footnote omitted). The court noted that HGN testing had, under various studies," been found to be 77% accurate standing by itself, and when used with other field tests, as high as 88% accurate. It then noted that other jurisdictions had found the test sufficiently reliable, citing Superior Court, supra; Bresson, supra; Murphy, supra, and Clark, supra, before holding, at 768-69:

After consulting the literature . . . and considering case law from other jurisdictions . . . we conclude that the theory underlying the HGN test is sufficiently reliable . . . . The scientific materials addressing the issue have reached the uniform conclusion that the consumption of alcohol has a cognizable effect on human eye movement. We believe that the

12 Accuracy has been determined by comparing the HGN testing results with subsequent verification through chemical testing or through testing persons with a known blood alcohol content. Most studies, though varying slightly, result, generally, in accuracy levels of just under 80% if the HGN test is the only test administered. If combined with the other two tests in the NHTSA Standardized tests (walk and turn and balance), most studies indicate a reliability factor of between 85% to 90%. The various studies and articles we have reviewed include: Edward B. Tenney

The Horizontal Gaze Nystagmus Test and the Admissibility of Scientific Evidence, 27 New Hampshire Bar Journal, 179 (Spring 1986) (Tenney noted that results from some agencies indicate a considerably higher reliability: Arlington County Police Force (345 arrests) 84%, Maryland State Police (451 arrests) 92%, North Carolina State

Police ( 434 arrests) 91%) ; Theodore E. Anderson et al. Field Evaluation of a Behavioral Test Battery for DWI" NHTSA Report DOT HS-806-475 (1983) (HGN tests performed on 1,506 drivers stopped for DWI during a three-month period. HGN deemed 82% accurate when used by itself in predicting BAC over .10.)

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accuracy of those sources cannot be reasonably questioned.


We also conclude that the technique employed in the HGN test, as designed and promoted by NHTSA, is reliable . . . . In this jurisdiction, officers who administer the HGN test receive standardized training in its administration. . . . The test procedures . . . require an officer to screen for factors other than alcohol . . . such as other drugs, neurological disorders, and brain damage, prior to administering the HGN test. . . . We take judicial notice of the reliability of both the theory . . . and its technique.

We are unable to conclude, however, that the HGN technique is a sufficiently reliable indicator of precise BAC [blood alcohol con­tent]. [Citation and footnote omitted.]

See also Anderson v. State, 866 S.W.2d 685 (Tex App. - Houston [ 1st Dist.]

1993); City of Fargo v. McLaughlin, 512 N.W.2d 700, 706 (N.D. 1994) (the North Dakota Supreme Court took judicial notice that intoxicated individuals exhibit nystagmus).

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 (though we reverse in respect to the qualifications of the officer), are likewise relieving the State of that burden. We shall, nevertheless, take judicial notice that HGN

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testing, a scientific test, is sufficiently reliable and generally accepted in the relevant scientific community. We do so consider­ing the great weight of scientific support in the literature and in light of its adoption in most other jurisdictions that have addressed the issue.

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