HGN Continued

by Officer Rossiter may have come from a source other than appellant. Accordingly, we are unable to say that the error was harmless.14

We reverse appellant's convictions on the charges of driving under the influence of alcohol and driving with alcohol in his blood in violation of a court ordered alcohol restriction on his driver's license. We affirm his other conviction for speeding, as it is not otherwise challenged on appeal.

Because appellant's second issue as to the trial court's questions relates only to the matter of HGN testing and we are reversing his alcohol-related convictions, we shall not address that question.

JUDGMENT OF CONVICTION FOR SPEEDING AF­FIRMED; ALL OTHER JUDGMENTS OF CONVICTION REVERSED; COSTS TO BE PAID 20% BY APPEL‑

14 We note that, after it had returned to deliberate, the jury sent three questions to the court:

1.          Was the Defendant asked to take a Breathalizer Test?

2.          If the Defendant refused what is the action taken?

3.          Or if he took the test what [were] the results[?]

The questions were not answered and the jury was directed not to speculate.

- 48 -

15 The NHTSA provides a manual (written in large part by 1st Sgt. Tower of the Maryland State Police) entitled "DWI Detection and Standardized Field Sobriety Testing Student Manual" that is apparently utilized by the Maryland State Police in its training programs. It contains much information in respect to training, administering the HGN test and protocols designed to assure that the presence of HGN is not caused by factors other than the presence of alcohol. Satisfactory completion of the program results in certification and the program is open to officers of other agencies.

 


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES

:

CRIMINAL ACTION NO. 00-946-PWG

v.                                                                                             : (Magistrate Judge Paul W. Grimm)

ERIC D. HORN                   :

:

MEMORANDUM AND ORDER

At approximately 10:35 p.m. on June 28, 2000, Sergeant Eric

D. Horn attempted to enter the Harford Road gate of the Army facility located at Aberdeen Proving Ground, Maryland. Officer Daniel L. Jarrell stopped Horn's vehicle for an identification check. As a result of his observations of Horn, Jarrell suspected that Horn was driving under the influence of alcohol,

and he was detained and questioned. Three standard field sobriety tests ("SFSTs") were administered: the "walk and turn" test, the "one leg stand" test and the "horizontal gaze nystagmus" test.1 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.),2 as assimilated by

1 Horn was given the opportunity to take a Breathalyzer test but refused, as he is entitled to do under Maryland law. Md. Code Ann., Cts & Jud. Proc. § 10-309 (1998 Repl. Vol. & 2001 Supp.) .

2 At the time of Horn's arrest, Md. Code Ann., Transp. II § 21-902 stated in pertinent part:

1

18 U.S.C. §§ 7, 13, the Assimilative Crimes Act, a Class A misdemeanor.

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. 3 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

(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.

3 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) .

2

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:4

(1) The results of properly conducted SFSTs may be considered to determine whether probable cause exists to charge a driver with driving while intoxicated ("DWI") or under the

influence of alcohol ("DUI");5

4 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).

5 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

3

(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;6

(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,7 which may be judicially noticed by the Court pursuant to Fed. R. Evid. 201, proved by expert testimony or otherwise;

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 (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.

6 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.

7 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

(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, technical or specialized information learned from law enforcement or traffic safety instruction, but must confine his or her testimony to

5

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.8 Accordingly, this opinion will discuss the basis for the above rulings in more detail below.

1. Applicable Rules of Evidence

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

8 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) .

6

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

7

probable cause, as the overwhelming majority of cases have held,9 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.10 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 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.

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

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

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

8

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.11

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 Frye 12

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

12 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) .

9

standard for admitting scientific or technical evidence: whether the methods or principles have gained general acceptance within the relevant scientific or technical community. 13 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.

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

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

10

Burns, Ph.D.1 4 and Herbert Moskowitz, Ph.D. of the Southern California Research Institute ("SCRI")titled "Psychophysical Tests for DWI Arrests" (the "1977 Report");

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

*             a September 1983 NHTSA Technical Report, authored by Theodore E. Anderson, Robert M. Schweitz and Monroe B. Snyder, titled "Field Evaluation Of A Behavioral Test Battery For DWI" (the "1983 Field Evaluation");

*             a November 1995 study of the SFSTs funded by NHTSA and conducted by Dr. Burns and the Pitkin County Sheriff's Office, Colorado, titled "A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery" (the "1995 Colorado Validation Study");                                 and

*an undated study, authored by Dr. Burns and a sergeant 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).

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

11

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