How the Courts Think About HGN

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 the 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.

As we have attempted to show, the great weight of scientific literature supports its reliability and the majority of jurisdic­tions around the country have declared HGN testing to be reliable. We take judicial notice that the results of HGN testing, if the

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test is properly given by a qualified officer, are admissible to indicate the presence of alcohol in a defendant.

Officer Qualifications

 

Before we discuss case law from other jurisdictions that refers to officer qualifications to administer the HGN test and to present testimony relative thereto, and the training, qualifica­tions, and certification programs available in Maryland, we shall briefly describe the evidence presented at trial in respect to Officer Rossiter's qualifications.

Officer Rossiter testified that he had been a Hagerstown police officer for just under five years and that he was a duly qualified and certified radar operator using properly calibrated and certified radar equipment. He additionally testified:

A. I asked him to exit the vehicle to perform some field sobriety tests . . . .

Q. Have you receive training in how to conduct field sobriety tests?

A. Yes.

Q. Where . . .?

A. Western Maryland Police Academy. Q. Five years ago?

A. Yes, sir.

Q. . . . [ H] ave you had occasion to use field sobriety tests on other occasions?

A. Yes, sir.

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.      . . .

A. Close to 100 [times].

Q. . . . [W]hat is the purpose . . . in giving somebody field sobriety tests?

A. To check the subject's coordination and see if they can do two things at once. . . .

.      . . .

A. See if the person is able to pay attention . . . .

Q . . . [W]hat [referring to the case sub judice] was the first test that you gave . . .?

A. . . . [T]he horizontal gaze nystagmus.

.      . . .

It tests the eyes, the muscles in the eyes as to how lax or smooth that the eyes can follow an object as it's passed in front of them.

Q. Would you demonstrate how that test is performed?

MR. SALVATORE [appellant's trial coun­sel]. Your Honor, I'm going to object. That test has never been proven to be reliable in the State of Maryland.

THE COURT: Overruled. The weight to be given to the test will be for the jury.

.      . . .

A. . . . The point of it is, with the alcohol, it's a depressant and relaxes the muscles. . . .

MR. SALVATORE: Objection, unless he's qualified to say that. [Emphasis added.]

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THE COURT: I'll overrule the objection. You may proceed.

Officer Rossiter then described the tests. Later, he was asked:

Q. And was he able to pass the test?

A. No, he did not.

MR. SALVATORE: Objection as to passing or failing.

THE COURT: Overruled.

When the officer began to describe the six-point scoring system for the test, appellant's counsel again objected: "Objection . . . . He's reached a conclusion and hasn't given any of the underlying basis for reaching that conclusion."   The court overruled the objection. As the discussion of "points" continued, appellant again, unsuccessfully, objected as to a lack of foundation. Later, Rossiter's direct examination continued:

Q. And who assigns the points?

A. . . . [ T] he Alcohol Influence Board.[ 13]

Q. . . . Somebody out there assigns how you're supposed to score the test?

A. Right.

MR. SALVATORE: Objection. It's leading. THE COURT: Overruled.

Q. Do you receive instruction on how to score this test?

13 The precise function of the Alcohol Influence Board, if it exists, is unclear.

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A. I was instructed in the Western Mary­land Police Academy how to do it. I'm not a certified instructor to do it.

Q. But have you been taught how to per­form the test?

A. Yes.

Appellant, in his brief, noted that he had objected to the officer's lack of qualifications, arguing:

It must also be shown that the test was given in precisely the prescribed manner and that the tester was qualified to both administer the test and interpret the results. Officer Rossiter did none of these and should not have been permitted to testify regarding the Hori­zonal Gaze Nystagmus Test.

Foreign Case Law

The court in Emerson, supra, noted that Texas police officers must be certified in order to administer the test and must "complete an

NHTSA-approved, State-sponsored training course .

"

880

. .   .

S.W.2d at 766. The Texas course consists of forty hours (twenty-four hours of classroom instruction and sixteen hours of field evaluation). During the sixteen-hour field evaluation, the officer must complete and document thirty-five HGN test cases. Upon completion of the thirty-five HGN test cases, the results are submitted for the approval of the Texas Engineering Extension Service, Law Enforcement Training Division. If the results are

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satisfactory, the officer is then given a "proficiency certifica­tion" by the Texas Commission on Law Enforcement Officer Standards and Education.

The Supreme Court of Iowa, in State v. Murphy, supra, 451 N.W.2d at 156, recognized that Iowa's rules of evidence did not require strict adherence to a Frye standard, only that the reliability of the evidence be established.                             It noted that reliability was a

necessary prerequisite for admission "`because unreliable evidence cannot assist a trier of fact.'" Id. at 156-57. While joining the Ohio courts in holding that HGN testing is no more scientific than

general field sobriety testing, the court emphasized the training of the police officer there involved and his testimony. The officer was an eleven-year veteran who had participated in specialized training in the administration of the HGN test. He was also certified by the Iowa Law Enforcement Academy as an instruc­tor. The court concluded "that testimony by a properly trained police officer with respect to the administration and results of the horizontal gaze nystagmus test is admissible without need for further scientific evidence." Id. at 158.

In State v. City Court, 799 P.2d 855, 860 (Ariz. 1990), the Arizona Supreme Court noted that it had previously decided that the HGN test was generally accepted in the relevant scientific community and, in light of that, opined:

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The proper foundation for such testimony, . . . 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 Court, in Clark, supra, opined:

Deputy Irby testified he was certified through the Montana Law Enforcement Academy, complet­ing the required number of training hours. Further, Deputy Irby testified he administered the test in the proper manner. No other foundation need be shown.

762 P.2d at 857.

The qualifications of the officer were directly challenged in State v. Garrett, 811 P.2d 488, 491 (Idaho 1991) , where the court first

held that HGN testing satisfies the Frye standard, noting that courts in Alaska, Arizona, Iowa, Louisiana, Montana, Ohio, and Texas had accepted it. The Garrett court then held that the expertise of the testing officer was first an issue for the trial

court to resolve, noting that the officers there had been suffi­ciently qualified:

Fost [the officer] is attached to the Select Traffic Enforcement Team. . . . Fost is also an instructor in the use of field sobriety tests. Fost was trained by members of the Idaho State Police, and he also attended semi­nars conducted by Dr. Marcelline Burns of the Southern California Research Institute (SCRI). Dr. Burns worked with the NHTSA to develop reliable field sobriety tests, and was one of the designers of the test . . . . Even though the testimony elicited from Fost concerning the correlation between nystagmus and blood alcohol content was improper, the court never‑

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theless properly admitted Fost's expert testi­mony on the administration of the HGN test.

Id. at 492-93 (citation omitted).

The Armstrong court held that a proper foundation had been laid for the introduction of the HGN test results in light of the officer's experience, training, and certification in respect to the test, and given that the evidence reflected that the test had been properly administered. See also State v. Regan, 601 So.2d 5 (La. App. 3d

Cir. 1992), writ denied, 610 So.2d 815-16 (1993). In State v. Garris, 603

So.2d 277 (La. App. 2d Cir. ) , writ denied, 607 So.2d 564 (La. 1992) , the court concluded that a sufficient foundation had been laid in that there was evidence that the officer had received HGN training, both in the Air Force, as a narcotics patrolman, and as a state trooper, that he had conducted HGN tests under supervision during the training, and that the officer had conducted the test properly. The court held that he had presented sufficient evidence of his qualifications, even though the officer never specifically stated

that he was "certified." Id. at 281. In State v. Breitung, 623 So.2d 23

(La. App. 1 Cir.) , writ denied, 626 So.2d 1168 (La. 1993) , the evidence indicated that the officer had been trained in administering the HGN test; he had attended a two-week course that included actual practice tests on subjects and had been certified. The officer had administered the test to numerous other suspects and there was evidence that the tests had been properly administered. The court

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held that a proper foundation had been laid. In Bresson, supra, the court noted that the trooper had testified

that he had received five days of training regarding the HGN test and described the methods he used in testing and evaluating appellee's performance . . . . His testimony . . . corresponds to the testing methods devised by the United States Department of Transportation.

The court held:

[ T] he only requirement prior to admission is the officer's knowledge of the test, his training, and his ability to interpret his observations.

Id. at 1334-36.

In the case sub judice, the record is, at best, minimal in regard to the level of Officer Rossiter's training. He was asked if he had received training in the general area of "field sobriety testing." He responded that he had trained at the Western Maryland Police Academy five years prior to testing appellant, but did not specify whether that training included testing for HGN. Again, he testified generally that he had performed field tests approximately 100 times but did not specify what experience he had had with HGN. Later, he responded that he "was instructed in the Western Maryland Police Academy how to do it. I am not a certified instructor to do it."

We have no way of knowing from the record the extent of the officer's actual HGN training, whether it was proper, whether it was supervised by certified instructors, or even whether Officer

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Rossiter was certified to administer the test. We hold, therefore, that a sufficient foundation as to the officer's qualifications to administer the test was not submitted below. His testimony should not have been allowed over the objection of appellant. In allowing this testimony, the trial court erred.

We also note that, while the officer discussed how the actual test was performed, other than noting that appellant did not wear contacts, the officer's testimony is silent as to whether he checked for tracking and different size pupils, etc., designed to reduce the chances that nystagmus from non-alcoholic causes might be confused with alcohol-related nystagmus. The trial court thus also erred in admitting the testimony in that there was insuffi­cient evidence that the proper precautions were taken or the proper considerations were accounted for prior to the administration of the test itself. This is especially important given the many other

possible causes of HGN contained in the mass of literature we have reviewed.

The cases and literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of nystagmus. They include: (1) problems with the inner ear laby‑

rinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arterioscle­rosis; (9) muscular dystrophy; (10) multiple sclerosis; (11)

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Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14)
hypertension; (15) motion sickness; (16) sunstroke; (17) eye
strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in
atmospheric pressure; (21) consumption of excessive amounts of
caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24)
circadian rhythms; (25) acute trauma to the head; (26) chronic
trauma to the head; (27) some prescription drugs, tranquilizers,
pain medications, anti-convulsants;      (28) barbiturates;                                       (29)
disorders of the vestibular apparatus and brain stem; (30)
cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34)
exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide;
(34) extreme chilling; (35) eye muscle imbalance; (36) lesions;
(37) continuous movement of the visual field past the eyes, i.e.,

looking from a moving train; (38) antihistamine use. See State v. Witte, supra; State v. Clark, supra; State v. Superior Court, supra; Mark A. Rouleau, Unreli­ability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439

(1989) ; Louise J. Gordy & Roscoe N. Gray, 3A Attorney's Textbook of Medicine §§ 84.63 and 84.64 (1990), and other cases and treatises hereinbe­fore mentioned.

No chemical test was administered to appellant in the case sub

judice. Evidence was proffered by appellant as to injuries that may have affected his ability to perform certain of the other field tests, and there was also evidence that the odor of alcohol smelled

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