SFST and BAC

Evidence "which would allow one to predict a known error rate in the field," where there is no ability to control the performance of the SFSTs like there is in a laboratory setting. Def's. Reply Memo, Exh. 4 at 6. He was especially critical of the assertions in the Florida and Colorado studies regarding the reliability of the SFSTs, primarily because of their use of lower BAC thresholds (0.05 and above instead of 0.10), the fact that the population of drivers evaluated were those stopped because of unsafe driving and the complete absence of any data in the reports to enable meaningful evaluation.    Id. at 6-7. He further expressed the

opinion that none of the reports was published in peer review literature. While Brull was not critical of the methodology used in the 1977 and 1981 laboratory studies, he stated that the results from these studies were inconclusive, and the subsequent field tests "simply do not contain sufficient detail or rigor to support any hypothesis that field sobriety studies, as conducted by police officers in the field, are valid and reliable." Id. at

7.

Brull' s evaluation of the data contained in the 1977 and 1981 reports was consistent with that of Dr. Cole and Dr. Wiesen. Regarding the 1981 Final Report, he observed that "the degree of predictive error in the field appeared to be substantially larger than in the laboratory," and that "[w]hile training clearly

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brought about improvement, it does not compare favorably to the laboratory condition and is [ sic] a margin of error substantially higher than one would find acceptable for predicting with any degree of certainty." Id. at 11.

Brull was most critical of the Colorado and Florida "validation" studies. He noted that they "are merely summary reports, without foundation, of findings," and suffered from a "serious methodological flaw," in that the tests were done on actual motorists stopped by officers because their driving was unsafe, leading the officers automatically to suspect that they were intoxicated.    Id.                   Use of this population likely will

produce results that Brull characterized as "highly inflated." Id. He further noted that these field studies predicted 90%

accuracy in identifying drivers with BAC's above 0.05, a level only one half that used in the earlier tests and below the level of legal intoxication. While the validation studies provided no data to assess the accuracy of the SFSTs in identifying drivers with BACs of 0.10 or higher, Brull suspected that the accuracy rate would be far lower than 90%. Id. at 12.

Brull's final conclusions were summarized as follows:

(1)    the laboratory studies that form the foundation of the SFSTs (the 1977 and 1981 studies) were well designed;

(2)        the accuracy of the SFSTs, even under laboratory conditions, is less than desired and below the level

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expected for tests of human performance;

(3)      the field studies were not well documented, produced unknown error rates, but which, if known, likely would have been unacceptable in real world situations;23

(4)         

(4) the error rate of SFSTs as actually performed by officers in the field is unknown;

(5)      the only peer review article analyzing the SFST's was written by Dr. Cole and is highly critical of the accuracy of the SFSTs.

Id. at 14.

Finally, Horn offered the affidavit of Yale H. Caplan, Ph.D., Defs.' Motion, Ex. E.   Dr. Caplan has more than thirty

23 The concern about the reliability of SFSTs performed by officers in the field under actual stop and detain conditions is not fanciful, given the fact that the NHTSA officer training manual itself cautions that the reliability of the SFSTs depends on strict compliance with the standardized procedures. Gov't. Opposition Memo, Exh. 2 at VIII-12. Further, there is clear evidence that given the conditions under which SFSTs actually are performed in real life situations, officers often do not follow the prescribed methodology. See Def's. Reply Memo, Exh.8 at 116 ("End-position nystagmus as an indicator of ethanol intoxication," Science and Justice Journal 2001)(author studied videotapes of actual traffic stops where HGN test was administered. Over 98% of the roadside HGN tests were improperly conducted); 1981 Final Report at 18-19 (stating that officers did not necessarily follow the standardized decision criteria used with the SFSTs). The fact that officers may not perform the SFSTs properly in the field has special significance when evaluated under Rule 702, as the third factor in that rule requires the court to find that the opinion testimony is based on reliable methods or principles that reliably were applied to the facts of the particular case. Thus, if reliable methods exist, but are not used in a particular instance, the results of the misapplication of the methodology are not admissible.

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years experience in the field of forensic toxicology and alcohol and drug testing. He served for many years as the chief toxicologist for the Maryland Medical Examiner's office and now

is a consultant in the field of toxicology.        Id. Dr. Caplan

stated that a determination that a person is impaired by alcohol consumption may be made in one of two fashions: by direct evidence of impairment derived from the chemical analysis of a breath or blood specimen; or indirectly by assessing performance indicators of the subject through field sobriety tests.                                          Id.

With respect to the latter, Dr. Caplan stated:

Although physiological assessments (e.g. standardized field sobriety tests) when coupled with the odor of alcohol on breath and alcohol's relatively high epidemiological prevalence in drivers may suggest alcohol as the causative agent, the use of drugs or the concomitant use of alcohol and drugs or other medical conditions must be considered as causes for the impairment. In fact, field sobriety tests alone were never designed for or demonstrated to be unequivocally capable of indicating alcohol impairment.

Id. He expressed the following opinions: (1) that field sobriety

tests can be used to define impairment but that a specific blood/breath alcohol test is needed to confirm that the cause of the impairment is alcohol ingestion; (2)that an alcohol test of a suspect's breath or blood can alone be used to establish impairment, but field sobriety tests alone cannot establish alcohol impairment "with absolute certainty." Id.

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4. The Government's Evidence

In response to the evidence submitted by Horn, the Government introduced the affidavit of Officer Jarrell, the arresting officer, describing the stop, detention and arrest of Horn and the SFSTs administered to him. The Government also introduced the 1977, 1981, and 1983 NHTSA reports, the California and Florida "validation studies," the NHTSA student manual regarding the SFSTs, and an article titled "Horizontal Gaze Nystagmus: The Science & the Law," published by the American Prosecutors Research Institute's National Traffic Law Center ("NTLC") .24 Govt's. Opposition Memo, Exhs . 1-7.

Additionally, the Government introduced the affidavit of Lieutenant Colonel Jeff C. Rabin, O.D., Ph.D., a licensed optometrist on active duty in the Army, assigned as the Director of Refractive Research at the Walter Reed Army Institute for Research, Walter Reed Army Medical Center .25 Id. Exh. 8. Colonel

24 The NTLC was "created in cooperation with . . .(NHTSA) and works closely with NHTSA and the National Association of Prosecutor Coordinators to develop training programs." The NTLC is a program of the American Prosecutors Research Institute, the principal function of which "is to enhance prosecution in America." Gov't. Opposition Memo, Exh. 1 at 2.

The foreward to this publication was written by Dr. Marcelline Burns.

25 The Government also had intended to introduce the affidavit of Sergeant Thomas Woodward of the Maryland State Police but ultimately was unable to do so.

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Rabin, who also testified at the Rule 104(a) hearing, has testified as an expert witness on the effects of alcohol and drugs on eye movements, given presentations to Army doctors and optometrists on this subject and reviewed the NHTSA publications regarding the HGN and other SFSTs. Id. Exhs. 8, 9. His affidavit

and trial testimony confirmed the fact that alcohol ingestion can enhance the presence of nystagmus in the human eye at BAC levels as low as .04. He expressed the opinion that "there is a very good correlation between the results of the . . . [HGN] test and breath analysis for intoxication." Id. He also stated that the

three "clues" that officers are taught to look for in connection with the HGN SFST "are indicative of alcohol consumption with possible intoxication." Id. Colonel Rabin expressed his belief

that police officers could be trained adequately to administer the HGN test and interpret its results.

Colonel Rabin' s testimony was consistent with his affidavit. He did acknowledge, however, that he acquired his knowledge of, and formed his opinions about, the SFSTs in connection with performing duties as an expert witness for Army prosecutors in two courts martial, not as a result of any independent research that he had done as an optometrist. It further was acknowledged that Colonel Rubin was not asked to analyze in any detail the reliability and validity of the NHTSA SFST studies, and he had no

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opinion on this subject. Further, the references to the HGN SFST that he read in peer review literature published by the American Journal of Optometry was based primarily on the NHTSA studies, rather than any independent research by that organization. He also acknowledged, in response to questions from the Court, that there are many causes of exaggerated nystagmus in the human eye that are unrelated to the ingestion of alcohol.

DISCUSSION

A. The State Case Law

State courts have wrestled with the admissibility of SFST results in drunk driving cases since 1986, when the Supreme Court of Arizona decided State v. Superior Court, 718 P.2d 171 (Ariz.

1986) . In that decision, based on the testimony before the trial court by Dr. Burns and three police officers, and using the Frye 26 test, the court held that the results of a HGN test were sufficiently reliable to be used to establish probable cause to arrest a motorist for DWI/DUI, and that it had achieved general acceptance among behavioral psychologists, highway safety experts, neurologists and law enforcement personnel. Id. at 180. The court therefore held that HGN evidence was admissible

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

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to prove driver intoxication/impairment.27 Id. at 181.

Since the 1986 Arizona decision, a majority of the states have ruled on the admissibility of HGN and SFST evidence. A reading of these cases reveals that there are a core of decisions that have attempted to undertake a thorough review of the facts relating to admissibility of SFST evidence. Other state courts have relied more on the rulings of courts that previously had addressed the issue than on their own independent evaluation. It would unnecessarily lengthen this opinion to discuss all the state cases in detail. Thus, the Appendix attached to this opinion includes a chart that identifies the majority of state cases and briefly summarizes their holdings.2 8 I will, however,

27 The court cautioned that it was not ruling that HGN test results were admissible to prove that a driver had a BAC in excess of 0.10 "in the absence of a laboratory chemical analysis." Id. at 181. In State v. City Court of the City of Mesa, 799 P.2d 855 (Ariz. 1990), the Arizona Supreme Court clarified that in cases where no independently admissible chemical test of a driver's BAC had been performed, HGN evidence was admissible only as circumstantial evidence that the driver had consumed alcohol and not to prove a specific BAC. Id. at 860.

28 The Appendix is intended to aid future courts called upon to research the issues presented in this case. The Court gratefully acknowledges the assistance of Ms. Jennifer Warfield, Mr. Kevin Cross, Ms. Jennifer Thomas, and Mr. Rodney Butler, interns who worked tirelessly on the Appendix. If the future of the legal profession may be predicted by these law students' work, it is a bright one. It also should be noted that, in addition to appointed counsel, Horn was also represented by Mr. Ryan Potter, a law student in the

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discuss certain of the state cases in this opinion, as they are essential to understanding the rulings reached herein.

Maryland's appellate cases discussing the admissibility of HGN and other SFST evidence fall into the category of state court cases that have undertaken a comprehensive evaluation of the admissibility of this evidence. The principal case, Schultz v.

State, 664 A.2d 60 (Md. App. 1995), has been cited repeatedly by

other state courts in support of their own rulings on the admissibility of SFST evidence.

The defendant in Schultz was convicted of DUI. At the trial

in the circuit court, the state's only evidence that the driver was driving under the influence of alcohol came from the arresting officer. Accordingly, the Court of Special Appeals was deprived of any evidence of record regarding the reliability of the HGN test. Its decision in Schultz was based on the court's

own evaluation of other cases and the published literature regarding the HGN test from which the court took judicial notice of its reliability and general acceptance. Id. at 69-74. In

University of Maryland's much respected clinical law program. Admitted to practice under Local Rule 702, and under the skillful supervision of Professor Jerry Deise, these clinical law students offer significant assistance to their clients while concomitantly gaining invaluable trial experience. Ms. Claudia Diamond, my law clerk, also was instrumental in helping to revise and edit this opinion for which I am also very thankful.

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doing so, the court observed that under Rule 5-70229 of the Maryland Rules of Evidence, it was required to apply the Frye

test, adopted in Maryland in Reed v. State, 391 A.2d 364 (Md.

1978).30   In doing so, the court used a three prong test to determine whether HGN evidence satisfied the Frye/Reed test: (1)

whether the scientific theory underlying the HGN test was reliable; (2) whether the methods used in connection with the HGN

29 The Maryland rules of evidence were adopted in 1994 after the Daubert decision had been rendered by the United States Supreme Court. In the commentary to Rule 5-702, which is the state equivalent to Fed. R. Evid. 702, the drafters, however, noted that it was not their intent to adopt the Daubert test, then widely viewed as applicable only to issues regarding the admissibility of scientific evidence. Instead, the Maryland rule was intended to maintain the Frye test, which had been adopted by the state in the case of Reed v. State, 391 A.2d 364 (Md. 1978). To this day, Maryland has declined to adopt the Daubert test. Burral v. State, 724 A.2d 65, 80 (Md. 1999)("We have not abandoned Frye or Reed."); Clark v. State, 781 A.2d 913, 935 & n.13 (Md. Ct. Spec. App. 2001); State v. Gross, 760 A.2d 725, 757 (Md. App. 2000); Schultz, 664 A.2d at 64 n.3. Thus, in federal court, under the most recent version of Rule 702 and the Daubert/Kumho Tire decisions, the proponent of any expert testimony, whether scientific, technical or the product of some specialized knowledge, must undertake an analysis of reliability of the methods/principles underlying the opinion, as well as the reliability of the application of the methodology used by the expert to the particular facts of the case. Under Maryland evidence law, the Frye/Reed test applies only to introduction of scientific evidence, and Rule 5-702 alone covers all other types of expert opinion testimony.

30 Maryland cases routinely refer to the Frye test as the "Frye/Reed" test. This opinion will as well.

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test had been accepted by scientists familiar with the test and its use; and (3) whether the police officer in the case at bar properly had been trained to administer the test and administered it properly.31 Id. at 64. The Schultz court based

its findings regarding the HGN test on the Arizona Court's decision in State v. Superior Court, the decisions of other state

courts, as well as its reading of various studies and articles. Id. at 72-73. Its consideration regarding the reliability of the

HGN test, however, is most significant with respect to the ruling made in this decision. Because it lacked the robust evidentiary record available to this court regarding the reliability of the HGN, OLS, WAT tests, the Court of Special Appeals was required to look at case law and published materials to determine whether the HGN test was reliable and generally accepted. The primary bases

31 As noted at pp. 7-8, in December 2000 the Federal Rules of Evidence were amended. Among the rules that were changed was Rule 702, the expert opinion rule. The amendment added three additional foundational requirements before expert testimony in any subject, whether scientific, technical or other specialized knowledge, is admissible: the opinion must be based on sufficient facts or data; it must be the product of methods and principles shown to be reliable, and the proponent must show that the methods/principles reliably had been applied to the facts of the case at hand. These factors are required by the rule itself and are independent from the factors identified by the Supreme Court in the Daubert/Kumho Tire decisions. The Maryland Rules of Evidence did not adopt the 2000 changes to the federal rules, and the Maryland expert opinion rule, Rule 5-702, does not contain the three additional foundational requirements as does Rule 702.

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for its conclusion that it was, and that it therefore could take judicial notice of this fact, were a decision by the Texas Supreme Court in Emerson v. State, 880 S.W.2d 759 (Tex. Crim.

App. 1994), a 1986 article authored by Edward B. Tenney and published in the New Hampshire Bar Journal, 32 and the NHTSA 1983 Field Evaluation. Id. at 73 and n. 12.

In Emerson, the Texas court based its conclusions regarding

the reliability of the HGN test on the NHTSA studies. Emerson,

880 S.W.2d at 766-67. The Tenney article cited only the NHTSA studies regarding the scientific basis for the HGN test and reached the conclusion that "[i]f the State of New Hampshire is still a true Frye jurisdiction, then the likelihood that results

from horizontal gaze nystagmus testing will be admitted into evidence in this state is extremely thin," 33 making it a questionable source to cite for the reliability of HGN testing. Finally, the conclusions of the NHTSA 1983 Field Evaluation have been aggressively challenged by Horn's experts in this case. In short, the foundation of the Court of Special Appeals' decision that the HGN test was sufficiently reliable and generally

32 Edward B. Tenney, The Horizontal Gaze Nystagmus Test and the Admissibility of Scientific Evidence, 27 New Hampshire Bar Journal 179 (1986) (hereinafter "Tenney article").

33 Tenney article at 187.

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accepted rests on taking judicial notice of studies and articles that, at the time of their publication, had not been subject to the type of critical evaluation presented in this case.

The doctrine of judicial notice is predicated upon the assumption that the source materials from which the court takes judicial notice are reliable.34 Where, as here, that reliability

34 Indeed, in this regard, the Maryland and Federal Rules of Evidence are substantially identical. Rule 5-201 and Fed. R. Evid. 201 permit the taking of judicial notice of adjudicative facts if: (a) the facts are generally known within the territorial jurisdiction of the court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Obviously, the scientific basis underlying HGN tests is not a matter generally known within the state; so, if judicial notice is to be taken, it must be by reference to sources whose accuracy cannot reasonably be questioned. While the sources relied on in the Schultz case may not have been subject to reasonable question at the time that court considered them, given the lack of any evidentiary facts in the record regarding the reliability of the HGN test, and the fact that judicial notice was taken on appeal–not at the trial level where the parties might have had an opportunity to develop a factual basis to challenge the propriety of judicial notice-- the same cannot be said given the record in this case. Further, Rule 201(e) and 5-201(e) permit a party to be heard on the propriety of taking judicial notice, which did not occur in the Schultz case because judicial notice was taken on appeal. As one commentator has noted "where judicial notice of an adjudicative fact is taken by an appellate court on its own motion, an issue arises as to whether the provisions of Rule 201(e) concerning an opportunity to be heard are to be applied. At the moment, the question is unresolved." Graham, Handbook of Federal Evidence

§ 201.07 (5th ed. 2001). In any event, Rule 201(g) provides that in criminal cases, the court must instruct the jury that "it may, but is not required to, accept as conclusive any fact judicially noted." Implicitly, the rule would permit a

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