Is HGN Something I Need to Worry About?

5 Another belief as to truth-telling was        that one's mouth (continued...)

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underlying the HGN test, i.e., that it is an accurate measure of the intoxication of a suspect, is a scientific principle.

The admissibility of the results of HGN testing has been challenged in some foreign jurisdictions for failing to satisfy the Frye standard (or the standard adopted by that jurisdiction for determining the admissibility of scientific evidence). A relative­ly important early case in which the test was challenged and the results were ruled admissible as evidence of the presence of alcohol was State v. Superior Court, 718 P. 2d 171 (Ariz. 1986) .    (Dennis

L. Lusk, Horizontal Gaze Nystagmus, 23 Arizona Bar Journal (Decem­ber/January 1988)), states that Arizona was the "first state to . . . approve . . . `HGN' . . . . " (Citing Superior Court) See also the American Bar Association's Standardized Field Sobriety Testing

Video Tape prepared for the American Bar Association by the Northwestern University Traffic Institute). The Arizona Supreme Court stated in Superior Court:

The HGN test is a different type of test from balancing on one leg or walking a straight line because it rests almost entirely

5(...continued)

becomes dry when lying. The English would test this by having a suspect swallow dry bread and cheese, and the Chinese, by having a suspect chew rice flour. 1 McCormick on Evidence (John W. Strong et al. 4th ed. 1992) § 206 n.23. The ability or inability to swallow or lack of moisture in the flour could be objectively observed without the aid of a machine. This, however, does not mean that the tests did not rely on an underlying scientific

premise that, under Frye/Reed, would have to be proven reliable in order to be admissible.

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upon an assertion of scientific legitimacy rather than a basis of common knowledge. Different rules therefore apply to determine its admissibility. [ 6]

Id. at 178. In Superior Court, a scientific foundation, which satisfied

the Frye standard, was presented at trial. Thus, the court there

was able to determine that the test conducted did satisfy Frye principles.' Nevertheless, it held that the test could only be used for the limited purpose of challenging or supporting a chemical test. It was not then considered by the Arizona court sufficient, by itself, to be a basis for a conviction under a statutory provision requiring a chemical test for a conviction. The court noted several "due process" concerns with the test, if it were to be used by itself to sustain a conviction:

The . . . "reading" of the HGN test cannot be verified or duplicated by an independent party. The test's recognized margin of error provides problems as to criminal convictions which require proof of guilt beyond a reason­able doubt. The circumstances under which the test is administered at roadside may affect the reliability of the test results. Nystag­mus may be caused by conditions other than alcohol intoxication. And finally, the far

6 The court held that the Frye standard had to be satisfied in order for the HGN test to be admitted into evidence at a trial, but did not have to be satisfied in order to establish probable cause to request that an individual submit to a chemical test.

7 The appendices to the Arizona opinion list and very briefly summarize numerous articles with respect to the reliability of the HGN test. We have reviewed many of those articles in our resolution of this case.

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more accurate chemical testing devices are readily available.

Id. at 181 (citation omitted) .8

That early conclusion in Superior Court, i.e., that the HGN test is scientific evidence, represents what we perceive to be the majority position of foreign jurisdictions on that subject. Other opinions concluding that the HGN test is scientific in nature include: Malone

v. City of Siverhill, 575 So. 2d 101 (Ala. Crim. App. 1989) (Alabama's intermediate appellate court found that the test was scientific and then, adopting the finding of Superior Court, supra, that the test

satisfied Frye and that the error in admitting the HGN test into

evidence, without a foundation being laid, was harmless.), rev'd in part

sub nom. Ex Parte Malone, 575 So . 2d 106 (Ala. 1990) (Alabama's Supreme Court reversed, holding that, because it was scientific in nature, the admission of the HGN test without a foundation was not harmless); People v. Leahy, 882 P.2d 321 (Cal. 1994) ; Foster v. State, 420 S.E.2d 78 (Ga. App. 1992) (HGN test required a foundation but the error in failing to lay the foundation was harmless in light of other evidence.); People v. Vega, 496 N.E.2d 501 (Ill. App. 4 Dist.

8 In State v. City Court, 799 P. 2d 855, 860 (Ariz. 1990) , the Arizona Supreme Court held that the HGN test was admissible to prove driving under the influence under a different section that did not require chemical testing, but "only for the purpose of permitting the officer to testify that . . . the results indicated possible neurological dysfunction, one cause of which could be alcohol ingestion."

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1986) (HGN test required a Frye foundation to be laid; later cases

determined that the test satisfied Frye and the only foundation that was required was that the officer was trained to administer the test and did so properly, see People v. Buening, 592 N. E . 2d 1222 (Ill.

App. 5 Dist.), cert. denied, 602 N . E . 2 d 460 (Ill. 1992).); State v. Witte, supra; State v. Armstrong, 561 S o. 2 d 883, 887 (La. App. 2 C i r .) , writ denied,

568 So.2d 1077 (La. 1990) (Frye standard was satisfied, taking the

approach that Illinois courts later adopted.); State v. Klawitter, 518 N.W.2d 577, 584 (Minn. 1994) (The court held that HGN test was not an "emerging scientific technique[]," but is "`scientific' in the sense we use the term," and then found that the test satisfied Frye.); State v. Wheeler, 764 S. W. 2 d 523 (Mo . App. 1989); State v. Clark, 762

P.2d 853 (Mont. 1988) (Frye standard was not used and HGN test was determined to be admissible, but the court indicated that scientif­ic and expert testimony was needed to lay a proper foundation.); State v. Borchardt, 395 N. W. 2d 551 (Neb . 1986); State v. Reed, 732 P. 2 d 66, 68 (Or. App. 1987) ("[T]he HGN test draws its convincing force from a scientific principle that consumption of alcohol causes nystag­mus. The difference between the HGN test and other, more common, field sobriety tests is that certain reactions to alcohol are so common that we take judicial notice of them." (footnote omitted)); Commonwealth v. Miller, 532 A.2d 1186, 1189 (Pa. Super. 1987) ("Results

of the HGN test are

.  .

. scientific evidence based on the

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scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test."); Emerson v. State, 880 S.W.2d 759

(Tex. Cr. App. en banc), cert. denied, ___ U.S. ___, 115 S.Ct. 323 (1994) (The court held that the HGN test was novel scientific evidence and then took judicial notice of the test's reliability. Previous Texas opinions had indicated that the test was not scientific. See

Lancaster v. State, 772 S.W. 2d 137 (Tex. App. — Tyler 1988) . ) ; State v. Cissne, 865 P.2d 564, 568 (Wash. App. Div. 3) , petition for review denied, 877 P.2d 1288 (Wash. 1994) ("Many jurisdictions, perhaps a majority,

have concluded that HGN testing is based on scientific principles . . . . We join these jurisdictions that recognize that HGN testing rests on an assertion of scientific legitimacy."); and State

v. Barker, 366 S.E.2d 642 (W.Va. 1988) . We shall further discuss many

of these cases, infra, in our discussion of judicial notice.

Some jurisdictions, however, including Ohio, have held that the HGN test is not scientific evidence. In State v. Nagel, 506 N.E.2d 285, 286 (Oh. App. 1986), the court stated:

It is not comparable . . . to a polygraph test which requires the use of a machine, the scientific reliability of which may be ques­tioned. The . . . test, as do the other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation.

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See also State v. Bresson, 554 N.E. 2d 1330, 1334-36 (Oh. 1990) (The Frye test was not used. "We find that the HGN test has been shown to be a reliable indicator of BAC levels. . . . The admission of the re­sults of the HGN test is no different from any other field sobriety test . . . . ") . Bresson and Nagel, like most of the other cases that maintain that HGN tests are not scientific tests, accepted a lesser standard for admissibility than the Frye standard. We shall discuss

Bresson and other cases at more length, infra.9

We do not find those cases that have held that the HGN test is not scientific to be persuasive. We note that the Frye standard was not in use in some of those jurisdictions. In addition, as previously indicated, unlike the Ohio court in Nagel, we do not find that the use of a machine, or lack thereof, is a useful indicator of whether evidence is scientific in nature. The Supreme Court of

9 See also Whitson v. State, 863 S.W. 2d 794 (Ark. 1993) (Frye standard not used, holding that HGN test was not novel because of its use by law enforcement officials for over thirty-five years).

Whitson, however, should be compared to People v. Leahy, 882 P. 2d 321 (Cal. 1994), and the Court of Appeals's Reed opinion, which does not list the length of time a test is used by law enforcement authorities as a factor to be considered in determining a test's scientific reliability and acceptance. State v. Murphy, 451 N.W. 2d 154, 157 (Iowa 1990) ( "we think the result reached in State v. Nagel most closely mirrors our own liberal approach to the admissibility of technical information" (emphasis added)); State v. Sullivan, 426 S.E.

2d 766, 769 (S.C. 1993) (indicating HGN test is no different than other field sobriety tests, citing State v. Nagel).

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Kansas in Witte, 836 P.2d at 1116, noted that the Nagel decision had been subject to criticism:

"The Ohio appellate court has apparently ignored the rule that the arresting officer's `personal observations,' in this instance, constitute opinion testimony. That is, the officer's opinion (that the jerking and twitching of the suspect's eyes during the gaze nystagmus test indicated that the suspect had consumed alcohol) is an opinion which is based upon a so-called `scientific' interpre­tation of observed facts which exist outside the common knowledge of the average lay person and therefore would require the testimony of an expert. The court also ignored the signif­icance of the fact that the horizontal gaze nystagmus test draws its convincing force from the supposed scientific principle that alcohol affects the smooth pursuit mechanism of the human eye. It is clear that the horizontal gaze nystagmus test is scientific in nature, as are other numerous reflex response tests (such as Babinski's reflex,[10] which does not require the use of a machine to administer, monitor or interpret)." Rouleau, Unreliabili­ty of the Horizontal Gaze Nystagmus Test, 4 Am Jur. Proof of Facts 3d 439 § 10, p. 458 (1989) .

The court in Witte concluded that the HGN test was scientific evidence, stating: "Alcohol's effect on a person's sense of balance is common knowledge. The same cannot be said for HGN. The HGN test is based upon scientific principles and exceeds common

10 Babinski's reflex has been so explained: "[W]hen the sole of the foot is stroked from the heel toward the little toe, all five toes tend to flex or bend down. However, in certain diseases of the brain and spinal cord, . . . stimulation of the sole causes the big toe to extend or bend upward, and the other

toes to bend down and spread or fan out." Schmidt's Attorneys' Dictionary of Medicine, B-2 (1992) .

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knowledge." Id. The Witte court, while noting that the authorities were not unanimous that the test was reliable, remanded that case back to the trial court for a determination of whether the test was sufficiently reliable and whether it was generally (not unanimous­ly) acceptable in the scientific community.

In holding HGN was a scientific test, the California Supreme Court in People v. Leahy, supra, noted:

First, we should make clear that "general acceptance" does not require unanimity, a consensus of opinion, or even majority support by the scientific community. . . .

.                 . . .

In determining whether a scientific technique is "new" . . . long standing use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained techni­cians.

Id. at 329-32.

In Leahy, the State argued that HGN testing was not a scientif­ic test, but merely a road test. The California court rejected the State's position, holding that it is in fact a scientific test. After listing states that had accepted HGN testing as valid scientific tests, the court went on to note:

The foregoing decisions, however, do not explain how police officers are competent to establish general acceptance of HGN testing in the scientific community, or how they are qualified to relate the scientific bases underlying the nystagmus test. [Some empha­sis added.]

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Id. at 334. The court, quoting from People v. Williams, 5 Cal. Rptr. 2d 130 (1992), then noted:

". . . Being qualified to attribute the ob­served eye movements to a particular cause, however, is a far different matter. . . .

Vega's [the police officer's] opinion that appellant was under the influence of alcohol, to the extent it was based on the nystagmus test, rests on scientific premises well beyond his knowledge, training, or educa­tion. Without some understanding of the processes by which alcohol ingestion produces nystagmus, how strong the correlation is, how other possible causes might be masked, what margin of error has been shown in statistical surveys, and a host of other relevant factors, Vega's opinion on causation, notwithstanding his ability to recognize the symptom, was unfounded. It should have been excluded."

Id. The California court then opined that "testimony by police

officers regarding the mere administration of the test is insufficient

to meet the general acceptance standard required by Kelly." (People v.

Kelly, 549 P.2d 1249, is the California equivalent of Maryland's Reed

v. State, supra, 283 Md. 374 . ) (As we shall hereafter take judicial notice of the reliability and acceptability in the relevant communities of HGN testing generally, the Leahy court's (and the

Williams court's) holding that officers cannot generally establish the foundational scientific reliability of the test will not be of direct importance to our subsequent determination.)

Pennsylvania courts have noted that scientific evidence is "evidence that draws its convincing force from some principle of

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science, mathematics and the like." Commonwealth v. Miller, 532 A.2d

1186, 1188 (Pa. Super. 1987). The Miller court noted that a proper

Frye foundation must be laid before such evidence may be admitted. "[T]he rationale for subjecting motorists suspected of driving under the influence of alcohol to the HGN test derives from the scientific principle that consumption of alcohol causes nystagmus." Id. at 1189. In Commonwealth v. Apollo, 603 A.2d 1023 (Pa. Super.), alloc.

denied, 613 A.2d 556 (Pa. 1992), the Pennsylvania court again confirmed that a proper foundation must be laid before HGN test results may be admitted in the courts of that state. In Apollo, the

State attempted to lay a Frye foundation by introducing the testimony of a single expert, an optometrist who was also a certified instructor in respect to HGN testing. The court, in holding that a proper foundation had not been laid, noted:

Dr. Sisson conducted his own study of the incidence of gaze nystagmus in "sober" per­sons. His study indicated that approximately one in five hundred sober patients would fail the HGN test, in contrast to national studies which have estimated a failure rate of two to four percent in a similar population. Dr. Sisson testified that he was aware of no studies evaluating the reliability of the HGN test that have reached any conclusion other than that it is the most accurate field sobri­ety test available.

Id. at 1027. See also Commonwealth v. Moore, 635 A. 2d 625 (Pa. Super.

1993) .

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We join the states of Arizona, Alabama, California, Georgia, Illinois, Kansas, Louisiana, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oregon, Pennsylvania, Texas, Washington,

and West Virginian and hold that HGN is a scientific test. In so holding, we note our awareness that the courts in Ohio, Arkansas, Iowa, and South Carolina — the only states that we are aware of that have held that the HGN test is not scientific because it is merely a "field test," have deemed the test results admissible without requiring a foundation.

We shall further hold, however, that the results of HGN tests are, nevertheless, admissible in the trial courts of this State without further reference to the Frye/Reed standard. We take judicial notice of the reliability and acceptance of the HGN test. We perceive that the studies, scientific articles, foreign cases, and other literature on the subject that we have reviewed reveal that most courts and scientific authorities have held the tests reliable if properly administered. The cases also reveal a general trend in admissibility determinations towards emphasizing the

qualifications of the person administering the test. That evolution of emphasis from the scientific framework of the test itself to the qualifications of those who administer it is where we

11 The American Bar Association states in the videotape we have referred to, supra, that the test has been accepted in all fifty states. Apparently it refers to trial court acceptance as we have found no prior Maryland appellate cases on the subject.

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