SFST and the Law Continued...

acceptance, it was all to easy for subsequent courts simply to follow suit. Before long, a body of case law could develop stating that a methodology had achieved general acceptance without there ever having been a contested, detailed examination of the underpinnings of that methodology. The admissibility of SFST evidence illustrates this hazard, as a review of the state cases reveals that, despite more than sixteen years of case law relating to this evidence, the number of instances where there have been factually well-developed and detailed challenges to the reliability and validity of the tests is extremely small.

Following the Kumho Tire decision and the December 2000

changes to Rule 702, a detailed analysis of the factual sufficiency and reliability of the methodology underlying expert testimony is required for all scientific, technical or specialized evidence, not just "novel scientific" evidence. This has required, at times, a reexamination of the admissibility of evidence that long has been admitted under the Frye test, which

may result in exclusion of evidence that for years routinely has been admitted. See, e.g., United States v. Llera Plaza, 2002 WL

32697 (E.D. Pa. January 9, 2002) (excluding aspects of evidence of latent fingerprint identification evidence on the basis of Daubert/Kumho Tire and Rule 702 analysis). As lawyers and courts

become fully aware of the relatively recent additional

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requirements of Kumho Tire and revised Rule 702, this process of

reexamination can be expected to continue. It may mean, in a very real sense, that "everything old is new again" with respect to some scientific and technical evidentiary matters long considered settled. Alarmists may see this as undesirable, envisioning courtrooms populated by mad scientists in white lab coats and overzealous judges in black robes, busily undoing established precedent. The more probable outcome is that judges, lawyers and expert witnesses will have to learn to be comfortable refocusing their thinking about the building blocks of what truly makes evidence that is beyond the knowledge and experience

of lay persons useful to them in resolving disputes.            The
beneficiaries of this new approach will be the jurors that have

to decide increasingly complex cases. Daubert, Kumho Tire, and

now Rule 702 have given us our marching orders, and it is up to the participants in the litigation process to get in step.

C. Applying Daubert/Kumho Tire and Rule 702 in this Case

Many of the state cases debate whether SFST evidence is "scientific" or "novel science," and therefore subject to Frye

analysis in the first instance. 42 Under the Federal Rules of

42 See, e.g., Schultz v. State, 664 A.2d 60 (Md. App. 1995) (discussing whether HGN and other SFSTs are "scientific

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Evidence, this debate is irrelevant, as newly revised Rule 702 and the Daubert/Kumho Tire cases require the same analysis for

any evidence that is to be offered under Rule 702. Thus, if the SFSTs in this case are being offered as direct evidence of intoxication or impairment, they then become cloaked in a scientific or technical aura, and the factors articulated in Daubert/Kumho Tire and Rule 702 must be evaluated by the district

court under Rule 104(a) before such evidence may be admitted.43

With regards to the HGN test, from the testimony before me, the materials submitted for my review by counsel, my review of all of the state cases decided to date, and many of the articles cited in those cases, it cannot be disputed that there is a sufficient factual basis to support the causal connection between observable exaggerated horizontal gaze nystagmus in a suspect's eye and the ingestion of alcohol by that person. This connection is so well established that it is appropriate to be judicially

evidence"); Hulse v. State, 961 P.2d 75(Mont. 1998).

43 If offered only as circumstantial evidence of intoxication/impairment, the HGN test still clearly invokes scientific and technical underpinnings. The WAT and OLS SFSTs, however, involve only observations of the suspect's performance, and therefore, it may be argued that they are not couched in science and technology if used for that purpose.

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noted under Rule 201.44 That being said, however, it must quickly be added that there also are many other causes of nystagmus that are unrelated to alcohol consumption.   The Schultz court

identified thirty-eight possible causes of nystagmus, 45 and, in

44 The existence of a causal connection between alcohol ingestion and observable horizontal gaze nystagmus is the type of discrete adjudicative fact that properly may be judicially noticed under Rule 201 because it is a fact that can be accurately and readily determined by resort to sources whose accuracy cannot reasonably be questioned. This use of judicial notice is far more narrow than attempting to take judicial notice, as did the Court of Special Appeals in Schultz, that the SFSTs have attained general acceptance within the relevant scientific or technical community. Alternatively, the government may prove the causal relationship between alcohol consumption and exaggerated nystagmus by expert testimony, but in this regard I agree with the New Mexico Supreme Court's decision in State v. Torres, which held that a police officer is unlikely to have the qualifications needed to testify under Rule 702 as to the scientific principles underlying the HGN test or as to whether there is a causal link between alcohol use and exaggerated nystagmus. 976 P.2d at 32, 34. Accordingly, asking the court to take judicial notice of this causal connection likely will be the most frequent method used by the government to prove this essential fact. An alternative would be to use learned treatises, under Rule 803(18), if a proper foundation first is established. The police officer will, of course, be qualified to testify as to the training received in how to administer the HGN test, and to demonstrate his or her qualifications properly to administer it. Because Officer Jarrell did not testify at the Rule 104(a) hearing, there is no factual basis before me at this time to permit me to make findings regarding the final factor under Rule 702, i.e., whether Jarrell properly administered and interpreted the SFSTs given to Horn.

45 The court recognized the following causes or possible causes of nystagmus: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis;

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his testimony, Colonel Rabin agreed that most of the Schultz

factors did, or possibly could, cause nystagmus in humans. Thus, the detectable presence of exaggerated HGN in a driver clearly is circumstantial, not direct, evidence of alcohol consumption.

As for the sufficiency of the facts and data underlying the assertions in the NHTSA articles that SFSTs are reliable in predicting specific BAC, the testimony of Horn's experts, as well as the literature that is critical of these studies, establishes that presently there is insufficient data to support these claims of accuracy. The early NHTSA laboratory tests were too limited

arteriosclerosis; Korchaff's syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers, pain medication, and anti-convulsant medicine; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use. 664 A.2d at 77. The fact that there are many other causes of nystagmus in the human eye also is the type of adjudicative fact that may be judicially noticed under Rule 201. Thus, the defendant in a DWI/DUI case may ask the court to judicially notice this fact, once the government has proved the causal connection between alcohol ingestion and exaggerated nystagmus. Alternatively, the defendant may seek to prove the non-alcohol related causes of nystagmus by other means, such as the testimony of an expert witness, cross examination of any such witness called by the government or through a properly admitted learned treatise. (Fed. Rule of Evid. Rule 803(18)).

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to support the claims of accuracy, and the subsequent field and validation testing insufficient to establish the reliability and validity of the tests if used to establish specific BAC. Indeed, the great weight of the state authority, including that in Maryland, agrees that BAC levels may not be proved by SFST test results alone, and I adopt that holding here.

The conclusion I have reached regarding the reliability of the methods and principles underlying the SFSTs takes into account the evidence introduced by Horn about the methods used to develop these tests, and the error rates associated therewith-- the first two Daubert/Kumho Tire factors. This alone precludes

their admissibility to prove specific BAC, and it therefore is not necessary to discuss in detail whether the many articles written about these tests constitute peer review analysis or something else, and whether they generally have been accepted in a relevant, unbiased scientific or technical community, the third and fourth Daubert/Kumho Tire factors. I do note, however, the

testimony of Horn's experts that the NHTSA publications regarding the SFSTs do not constitute peer review publications, a conclusion that seems correct. As Dr. Cole testified, peer review as contemplated by Daubert and Kumho Tire must involve

critical analysis that can expose any weaknesses in the methodology or principles underlying the conclusions being

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reviewed.

Further, as testified to by Horn's experts, the process of selection of articles for publication in a peer review journal involves an evaluation by one or more experts in the field, to insure that the article meets the rigors of that field. Under this standard, most of the publications regarding the SFST tests, including the publications in bar journals, likely do not meet this criteria.

Similarly, despite the conclusion of many state courts that the SFSTs have received general acceptance among criminologists, law enforcement personnel, highway safety experts and prosecutors, I remain skeptical whether this is sufficient for purposes of Daubert and Kumho Tire. Acceptance by a relevant

scientific or technical community implies that that community has the expertise critically to evaluate the methods and principles that underlie the test or opinion in question. However skilled law enforcement  officials, highway  safety                         specialists,

prosecutors and criminologists may be in their fields, the record

before me provides scant comfort that these communities have the expertise needed to evaluate the methods and procedures underlying human performance tests such as the SFSTs. Some might say the same about judges, without fear of too much disagreement, but judges are the ones obligated to do so by Rule 104(a) when

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the admissibility of evidence is challenged. As to the conclusion of the state courts, more often than not expressed in passing and without analysis, that the SFSTs generally are accepted among psychologists like Dr. Burns, the evidence presented to me by the three psychologists called by Horn leads

me, respectfully, to beg to differ. Thus, based on the foregoing, I conclude that the SFST evidence in this case does not, at this time, meet the requirements of Daubert/Kumho Tire

and Rule 702 as to be admissible                as direct evidence of
intoxication or impairment.

A more difficult question, however, is whether the SFSTs may be used as circumstantial evidence of alcohol consumption and, if so, just how. The state courts overwhelmingly have concluded that the results of SFSTs are admissible as circumstantial evidence of alcohol consumption but have offered little guidance about what exactly the testifying officer may tell the fact finder about the SFSTs, their administration, and the performance of the suspect when doing them. The possibilities range from simply describing the tests--without explaining the scientific or technical bases underlying them or their claimed accuracy rates and describing only what the officer observed when they were performed, absent any opinions regarding whether the suspect "passed" or "failed" or assessment of the degree of intoxication

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or impairment--to a full explanation of the tests, their claimed accuracy, the number of "standardized clues" the suspect missed, and an opinion that the suspect "failed" the test-–in short everything up to testimony about the specific BAC of the driver.

On the record before me there are not sufficient facts or data about the OLS and WAT SFSTs to support the conclusion that, if a suspect exhibits two out of eight possible clues on the WAT test or two out of four clues on the OLS, he has "failed" the tests. To the contrary, Horn introduced Dr. Cole's study that showed an alarmingly high error rate when police officers were asked to evaluate completely sober subjects performing the WAT and OLS.46 Def's. Motion Exh. C. To permit a police officer to testify about each of the SFSTs in detail, their claimed accuracy rates, the number of standardized clues applicable to each, the number of clues exhibited by the suspect, and then offer an opinion about whether he or she passed or failed, stopping just short of expressing an opinion as to specific BAC, invites the risk of allowing through the back door of circumstantial proof evidence that is not reliable enough to enter through the front door of direct proof of intoxication or impairment.                                                 Such

46 See supra at pp. 17-18. Cole reported that 46% of the officers that observed videotaped subjects with BAC levels of .0% performing the WAT and OLS tests reported that the subjects had had too much to drink to be driving.

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testimony clearly is technical, if not scientific, and may not be admitted unless shown to be reliable under the standards imposed by Rule 702 and Daubert/Kumho Tire, which has not been done in

this case.

There is no factual basis before me to support the NHTSA claims of accuracy for the WAT and OLS tests or to support the conclusions about the total number of standardized clues that should be looked for or that missing a stated number means the subject failed the test. There is very little before me that suggests that the WAT and OLS tests are anything more than standardized procedures police officers use to enable them to observe a suspect's coordination, balance, concentration, speech, ability to follow instructions, mood and general physical condition--all of which are visual cues that laypersons, using ordinary experience, associate with reaching opinions about whether someone has been drinking.

Indeed, in Crampton v. State, 525 A.2d 1087 (Md. App. 1987)

the Maryland Court of Special Appeals described field sobriety tests--other than the HGN test--administered by police to motorists as follows:

field sobriety tests are essentially personal observations of a police officer which determine a suspect's balance and ability to speak with recollection. There is nothing 'new' or perhaps even 'scientific' about the exercises that an officer requests a suspect to perform. Those sobriety tests

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have been approved by the National Highway Traffic Safety Administration and are simply guidelines for police officers to utilize in order to observe more precisely a suspect's coordination. It requires no particular scientific skill or training for a police officer, or any other competent person, to ascertain whether someone performing simple tasks is to a degree affected by alcohol. The field sobriety tests are designed to reveal objective information about a driver's coordination. . . . The Frye-Reed test does not apply to those field sobriety tests because the latter are

essentially empirical observations, involving no controversial, new or 'scientific' technique. Their use is guided by practical experience, not theory.

Id. at 1093-94. The same conclusion has been reached by many

other state courts that have considered this issue. For example, in State v. Ferrer, 23 P.3d 744 (Haw. Ct. App. 2001), the court

stated:

It is generally recognized, however, that the foundational requirements for admission of psychomotor FST evidence differ from the foundational requirements for admission of HGN evidence. Psychomotor FSTs test balance and divided attention, or the ability to perform multiple tasks simultaneously. While balancing is not necessarily a factor in driving, the lack of balance is an indicator that there may be other problems. Poor divided attention skills relate directly to a driver's exercise of judgment and ability to respond to the numerous stimuli presented during driving. The tests involving coordination (including the walk-and­turn and the one-leg-stand) are probative of the ability to drive, as they examine control over the subject's own movements. Because evidence procured by administration of psychomotor FSTs is within the common experience of the ordinary citizen, the majority of courts that have addressed the issue generally consider psychomotor FSTs to be nonscientific evidence.

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Id. at 760-62 (citations omitted).4 7         As the Florida District

Court of Appeals said in State v. Meador, 674 So. 2d 826 (Fla.

App. 1996) :

While the psychomotor FSTs are admissible, we agree with defendants that any attempt to attach significance to defendants' performance on these exercises is beyond that attributable to any of the other observations of a defendant's conduct at the time of the arrest could be misleading to the jury and thus tip the scales so that the danger of unfair prejudice would outweigh its probative value. The likelihood of unfair prejudice does not outweigh the probative value as long as the witness simply describe their observations. Reference to the exercises by using terms such as 'test,' 'fail' or 'points,' however, creates a potential for enhancing the significance of the observations in relationship to the ultimate determination of impairment, as such terms give these layperson observations an aura of scientific validity. Therefore, such terms should be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment.

Id. at 832.

I agree with this reasoning. If offered as circumstantial evidence of alcohol intoxication or impairment, the probative value of the SFSTs derives from their basic nature as observations of human behavior, which is not scientific, technical or specialized knowledge. To interject into this

47 The court cites to decisions from Alabama, Arizona, California, Georgia, Illinois, Maryland, Massachusetts, New York, Pennsylvania, Florida and Oregon that have reached the same conclusion about the nature of psychomotor FSTs like the WAT and OLS tests. Id. at 760-62.

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essentially descriptive process technical terminology regarding the number of "standardized clues" that should be looked for or opinions of the officer that the subject "failed" the "test," especially when such testimony cannot be shown to have resulted from reliable methodology, unfairly cloaks it with unearned credibility. Any probative value these terms may have is substantially outweighed by the danger of unfair prejudice resulting from words that imply reliability. I therefore hold that when testifying about the SFSTs a police officer must be limited to describing the procedure administered and the observations of how the defendant performed it, without resort to terms such as "test,"48 "standardized clues," "pass" or "fail," unless the government first has established a foundation that satisfies Rule 702 and the Daubert/Kumho Tire factors regarding

the reliability and validity of the scientific or technical

48 It would be preferable to refer to the standardized field sobriety tests as "procedures," rather than tests, as the use of the word test implies that there is an accepted method of determining whether the person performing it passed or failed, and this has not been shown in this case. I recognize, however, that the HGN, WAT and OLS procedures have been referred to as field sobriety "tests" for so many years, that it is likely that it will be impossible to stop using this terminology altogether. Occasional reference to the HGN, WAT and OLS procedures as "tests" should not alone be grounds for a mistrial in a jury case. However, repeated use of the word "test" to describe these procedures, particularly when testifying as to how the defendant actually performed them, would be improper.

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underpinnings of the NHTSA assertions that there are a stated number of clues that support an opinion that the suspect has "failed" the test.

This is not to say that a police officer may not express an opinion as a lay witness that the defendant was intoxicated or impaired, if otherwise admissible under Rule 701. As recently amended, Rule 701 permits lay opinion testimony if: (a) rationally based upon the perception of the witness, (b) helpful to the fact finder and (c) if the opinion does not involve

scientific, technical or specialized information.49 There is near universal agreement that lay opinion testimony about whether someone was intoxicated is admissible if it meets the above criteria. See, e.g., Singletary v. Secretary of Health, 623 F.2d

217, 219 (2d Cir. 1980)("The testimony of lay witnesses has always been admissible with regard to drunkenness."); United

States v. Mastberg, 503 F.2d 465 (9th Cir. 1974); Malone v. City

of Silverhill, 575 So. 2d 101 (Ala. Crim. App. 1990); State v.

Lummus, 950 P.2d 1190 (Ariz. App. 1997) ; Wrigley v. State, 546

S.E.2d 794, 798 (Ga. App. 2001) ("A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence."); State v.

49 Maryland's equivalent evidence rule, 5-701, does not contain the third requirement imposed by the federal rule.

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Ferrer, 23 P.3d 744 (Hawaii Ct. App. 2001); Com. v. Bowen, 754

N.E.2d 1083 (Ma. App. 2001); State v. Hall, 353 N.W.2d 37, 43

(S.D. 1984); Beats v. State, 2000 WL 921684 (Tex. Crim. App.

2000) ("A lay witness, including a police officer, may express an opinion about a person's intoxication."). See also John W. Strong, McCormick on Evidence

§ 11 (5th ed. 1999) ("The so-called 'collective fact' or 'short­hand rendition rule' [permits] opinions on such subjects as. . . a person's intoxication."); Graham, Handbook of Federal Evidence

§ 701.1 (5th ed. 2001)(lay witness permitted to offer opinion testimony that a person was intoxicated); Mueller and Kirkpatrick, Evidence § 7.4 (4th ed. 1995) ("One common example

[of the collective facts doctrine] is lay testimony that someone was intoxicated, and here the witness is not confined to descriptions of glazed eyes, problems in speech or motor coordination, changes in behavior or mood or affect, but may say directly (assuming adequate observation and common experience) that the person seemed drunk or under the influence").

In DWI/DUI cases, however, the third requirement of Rule 701, that the lay opinion is "not based on scientific, technical, or other specialized knowledge," will take on great importance. A police officer certainly may testify about his or her observations of a defendant's appearance, coordination, mood,

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ability to follow instructions, balance, the presence of the smell of an alcoholic beverage, as well as the presence of exaggerated HGN, and the observations of the defendant's performance of the SFSTs-- consistent with the limitations discussed above. The officer should not, however, be permitted to interject technical or specialized comments to embellish the opinion based on any special training or experience he or she has in investigating DWI/DUI cases. Just where the line should be drawn must be left to the discretion of the trial judge, but the officer's testimony under Rule 701 must not be allowed to creep from that of a layperson to that of an expert-–and the line of demarcation is crossed if the opinion ceases to be based on observation and becomes one founded on scientific, specialized or technological knowledge.

CONCLUSION

To summarize, the Court holds that the following rulings apply to the case at bar:

(1) The results of properly administered WAT, OLS and HGN SFSTs may be admitted into evidence in a DWI/DUI case only as circumstantial evidence of intoxication or impairment but not as direct evidence of specific BAC. Recognizing that Officer Jarrell, the arresting police officer in this case, may be the sponsor for this evidence, he must first establish his

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qualifications to administer the test. Unless qualified as an expert witness under Rule 702 to express scientific or technical opinions regarding the reliability of the methods and principles underlying the SFSTs, Officer Jarrell's foundational testimony will be limited to the instruction and training received and experience he has in administering the tests and may not include opinions about the tests' accuracy rates. If Officer Jarrell testifies about the results of the HGN test, he may testify as to his qualifications to detect exaggerated HGN, and his observations of exaggerated HGN in the Horn, but may not, absent being qualified under Rule 702 to do so, testify as to the causal nexus between alcohol consumption and exaggerated HGN. When testifying about Horn's performance of the SFSTs, Officer Jarrell may describe the SFSTs he required Horn to perform and describe Horn's performance, but Officer Jarrell may not use language such as "test," "standardized clues" or express the opinion that Horn "passed" or "failed," because the government has not shown, under Rule 702 and the Daubert/Kumho Tire decisions, that these

conclusions are based on sufficient facts or data and are derived from reliable methods or principles.

(2) The government may prove the causal connection between exaggerated HGN in Horn's eyes and alcohol consumption by one of the following means: asking the court to take judicial notice of

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it under Rule 201; the testimony of an expert qualified under Rule 702; or through learned treatises, introduced in accordance with Rule 803(18). In response to proof of the causal connection between alcohol consumption and exaggerated HGN, Horn may prove that there are other causes of HGN than alcohol by one of the following methods: asking the court to take judicial notice of this fact under Rule 201; cross-examining any expert called by the government; by calling a defense expert witness, qualified under Rule 702, or through leaned treatises, introduced in accordance with Rule 803(18).

(3) Assuming the government can establish the elements of Rule 701, Officer Jarrell may give lay opinion testimony that Horn was intoxicated or impaired by alcohol. Such testimony must be based on Officer Jarrell's observations of Horn and may not include scientific, technical or specialized information.

Paul W. Grimm

United States Magistrate Judge

Date

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