SFST and the Law

has been challenged, the court cannot disregard the challenge, simply because a legion of earlier court decisions reached conclusions based on reference to the same then-unchallenged authority. For the reasons that will be explained below, on the record before me, I cannot agree that the HGN, WAT and OLS tests, singly or in combination, have been shown to be as reliable as asserted by Dr. Burns, the NHTSA publications, and the publications of the communities of law enforcement officers and state prosecutors. While I ultimately agree, in large part, with the conclusions reached by the vast majority of state courts that the results of the HGN tests are admissible as circumstantial evidence of alcohol consumption, I must do so by recognizing their limited reliability and with substantial doubts about the degree of their general acceptance within an unbiased scientific or technical community.

This is not to say that I am critical of the decisions in Schultz or the other state courts. To the contrary, they are,

for the most part, well-reasoned and written, based on the information then available to the deciding courts and the

defendant in a criminal case to offer evidence to rebut any adjudicative fact noticed by the Court. Thus, if a Court took judicial notice of the reliability and general acceptance of the HGN test, the defendant initially could object to it doing so under Rule 201(e). Then, if unsuccessful in preventing the court from taking judicial notice, the defendant could introduce evidence contesting the fact judicially noted.

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inherent limitations of the process by which courts receive proof--either from evidence introduced by the parties themselves or by the taking of judicial notice from decisions of other courts or published materials. The Court of Special Appeals itself noted the danger inherent in such a process:

We note with some caution the dissent in Emerson, supra, which initially noted that, by taking judicial notice of the reliability of HGN testing and technique, the appellate court had relieved the State of its burden of establishing the reliability of the test at trial. We acknowledge that we, in taking judicial notice of the reliability of the test . . . are likewise relieving the State of that burden. We shall, nevertheless, take judicial notice that HGN testing, a scientific test, is sufficiently reliable and generally accepted in the relevant scientific community. . . . 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-by­case 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 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.

Schultz, 664 A.2d at 74.

The practical truth of the above reasoning cannot be denied. None today can doubt the serious public safety concerns related to driving by intoxicated or impaired motorists or the magnitude

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of this problem.35 Neither can it be disputed that, given the volume of DWI/DUI cases, the press of other criminal cases, and the limited resources and time of prosecutors to prepare them for trial, it is highly desirable to have available a simple, inexpensive, and reliable test that can be administered by police officers on the road, which would facilitate a prompt and inexpensive trial. Indeed, Rule 102 would militate in favor of interpreting the rules of evidence in such a fashion as to accomplish this end, if fairly possible. What cannot be lost in the process, however, is the requirement that the trial be a fair one and that the sum of the evidence introduced against the defendant must be sufficiently probative to prove guilt beyond a reasonable doubt .36 Expedient as it may be for courts to take

35 In FY 2000/2001, 35,962 DWI/DUI cases were filed in Maryland. Administrative Office of the Maryland Courts Judicial Information System, Maryland District Court Traffic System Citation Statistics, Report No. A70TM214, Run Date July 15, 2001.

36 In addition, if local prosecutors may lack sufficient resources to prove the reliability and general acceptance of the SFSTs, which it is their burden to do in the first instance, it can be expected, a fortiori, that individual defendants charged with DWI and DUI will have even fewer resources to challenge the science and technology underlying these tests. If, once accepted by the application of the judicial notice rule, SFSTs are ever after immune from reconsideration, even in the face of new evidence challenging their reliability, then the burden will have been shifted from the state or government to establish the admissibility of the SFSTs to the defendant to disprove their admissibility. This

45

judicial notice of scientific or technical matters to resolve the crush of DWI/DUI cases, this cannot be done in the face of legitimate challenges to the reliability and accuracy of the tests sought to be judicially noticed. As will be seen, there is a place in the prosecutor's arsenal for SFST evidence, but it must not be cloaked in an aura of false reliability, lest the fact finder, like the protagonist in the Thomas Dolby song, be "blinded by science" or "hit by technology." 37

From a review of the state court decisions regarding the admissibility of HGN evidence in particular, and SFST evidence in general, a number of observations may be made. First, most of the states that have ruled that HGN evidence is admissible have not allowed it to be used to prove specific BAC but instead only as circumstantial proof of intoxication or impairment. See, e.g.,

Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998); State v.

City Court of the City of Mesa, 799 P.2 855 (Ariz. 1990); State

is a high price to pay in the interest of conserving limited prosecutorial resources.

37 "She blinded me with science! And hit me with technology."

Thomas Dolby, "She Blinded Me With Science," http://www.prebble.com/sheblinded.htm. See also State v. Ferrer, 23 P.3d 744, 765 n.6 (Haw. Ct. App. 2001)(quoting State v. O'Key, 899 P.2d 663, 672 n.6) (jurors may be "overly impressed with the aura of reliability surrounding scientific evidence").

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v. Ruthardt, 680 A. 2d 349 (Del. Super. Ct. 1996); State v.

Garrett, 811 P.2d 488 (Idaho 1991); State v. Buening, 592 N.E.2d

1222 (Ill. App. Ct. 1992); State v. Taylor, 694 A. 2d 907 (Md.

1997) ; Wilson v. State, 723 A.2d 494 (Md. App. 1999) ; State v.

Baue, 607 N.W.2d 191 (Neb. 2000); City of Fargo v. McLaughlin,

512 N.W.2d 700 (N.D. 1994); State v. Bresson, 554 N.E.2d 1330 (Ohio 1990) ; State v. O'Key, 889 P.2d 663 (Or. 1995) ; State v.

Sullivan, 426 S.E.2d 766 (S.C. 1993); State v. Emerson, 880

S.W.2d 759 (Tex. Crim. App. 1994).

Second, most of the states that have ruled that HGN evidence is admissible have employed the Frye standard requiring general

acceptance of the test within the relevant scientific or technical community. See, e.g., Malone v. City of Silverhill,

575 So. 2d 101 (Ala. Crim. App. 1989); State v. Superior Court,

718 P.2d 171 (Ariz. 1986) ; People v. Leahy, 882 P.2d 321 (Cal.

1994); Williams v. State, 710 So. 2d 24 (Fla. Dist. Ct. App.

1998); Hawkins v. State, 476 S.E.2d 803 (Ga. Ct. App. 1996);

Garrett, 811 P.2d 488 (Idaho 1991); State v. Buening, 592 N.E.2d

1222 (Ill. Ct. App. 1992); State v. Witte, 836 P.2d 1110 (Kan. 1992); State v. Armstrong, 561 So. 2d 883 (La. Ct. App. 1990);

Schultz, 664 A. 2d 60 (Md. App. 1995); People v. Berger, 551

N.W.2d 421 (Mich. Ct. App. 1991); State v. Klawitter, 518 N.W.2d

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(Minn. 1994); State v. Baue, 607 N.W.2d 191 (Neb. 2000); State v.

Cissne, 865 P.2d 564 (Wash. Ct. App. 1994).             Some courts,

however, have used other evidentiary standards.        See, e.g.,

Connecticut v. Russo, 777 A. 2d 965 (Conn. App. Ct. 2001)

(remanding case to trial court to evaluate admissibility of HGN evidence under Daubert standard adopted by the Connecticut

Supreme Court in 1997); State v. Ito, 978 P.2d 191        (Haw. Ct.

App. 1999); Hulse v. State, 961 P. 2d 75 (Mont. 1998);38 New

Hampshire v. Duffy, 778 A.2d 415 (N.H. 2001) (using state

evidence Rule 702 that requires showing of reliability before HGN evidence can be admitted; remanding to trial court to hold a hearing on the test's reliability); State v. Torres,39 976 P.2d

38 The Hulse court held that neither the Frye nor Daubert tests were applicable to admissibility of HGN evidence because those tests were restricted to admissibility of "novel" scientific evidence and HGN test was not "novel" science. 961 P.2d at 91. Instead, the court applied Montana Evidence Rule 702, which was identical to the then current version of Fed. R. Evid. 702. The court did not rule on the admissibility of HGN evidence in a DWI/DUI criminal trial, as the appeal arose from a trial court decision denying Hulse's petition to reinstate driving privileges after they were suspended because Hulse refused to take a breathalyzer, and the only legal issues presented were the existence of probable cause to arrest for DWI/DUI, and the driver's refusal to take a breath test. Id. at 91-92.

39 In Torres, the court made several significant rulings. First, it held that police officers are not qualified to testify about the scientific bases underlying the HGN test and are not competent to establish that the test is reliable. 976 P.2d at 32. It further held that it "is improper to look for

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20 (N.M. 1999) (reversing trial court's ruling that HGN evidence was admissible, remanding for hearing using Daubert test).40

Third, of the state cases where the courts undertook the task of evaluating the admissibility of HGN evidence, the NHTSA studies and, in many instances, the testimony of Dr. Burns,

scientific acceptance only from reported case law," and it declined to take judicial notice of the reliability of the HGN test because "[w]e are not persuaded that HGN testing is 'a subject of common and general knowledge,' or a matter 'well established and authoritatively settled.'" Id. at 33. Finally, the court held that, although a qualified expert was needed to testify about the reliability of the HGN test and its results, a properly trained police officer could testify about the administration of the test "after an appropriate foundation regarding such [scientific] knowledge has been laid by another, scientific expert." Id. at 34. The care taken by the Torres court illustrates the difference in application of the Daubert test from the Frye test. Daubert requires analysis of the methodology used, its reliability and validity. Frye, on the other hand, may tempt a court faced with determining the admissibility simply to see what other courts have done in the past, as well as review publications supplied by the parties, or found by the court's own efforts, without engaging in the sometimes difficult analysis of the reliability of the science or technology underlying those sources.

40 Ito used Hawaii Evidence Rule 702, which, in addition to the requirements of the then current version of Fed. R. Evid. 702, added the provision that the court "may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert." 978 P.2d at 200. The court held that judicial notice of the reliability of HGN evidence was not proper under Hawaii Evidence Rule 201 but that judicial notice of its reliability was proper under Hawaii common law which permits a trial court to take judicial notice of facts judicially noticed in case law from other jurisdictions. Id. at 208-09. In doing so, the court relied heavily on the Maryland Schultz opinion.

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figured prominently in their conclusions that the HGN tests were admissible as evidence of intoxication or impairment. See, e.g.,

Ballard v. State, 995 P.2d 931 (Alaska Ct. App. 1998)(court

relied on trial testimony of Dr. Burns, NHTSA training video and testimony of state trooper. Defendant called a psychology professor and neuro-ophthalmologist); State v. Superior Court,

718 P.2d 171 (Ariz. 1986) (court considered trial court testimony of Dr. Burns, two police officers, NHTSA studies, and published articles on HGN test); People v. Joehnk, 42 Cal. Rptr. 2d 6 (Ca.

Ct. App. 1995)(court considered trial testimony of Dr. Burns, NHTSA studies, testimony of a "criminalist" and a toxicologist. Defendant called an emergency room doctor to testify); State v.

Ruthhardt, 680 A.2d 349 (Del. Super. Ct. 1996) (court considered

trial testimony of Dr. Burns, NHTSA studies, testimony of police officer, behavioral optometrist and neuro-ophthalmologist, defense introduced testimony of Dr. Cole, one of the defense witnesses in the pending case); Williams v. State, 710 So.2d 24

(Fla. Ct. App. 1998) (Dr. Burns, a neurologist and three state doctors called as witnesses by the state); Hawkins v. State, 476

S.E.2d 803 (Ga. Ct. App. 1996) (court relied on NHTSA studies, other state court rulings and articles); State v. Hill, 865

S.W.2d 702 (Mo. Ct. App. 1993) (Dr. Burns only witness called at

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trial on HGN test); State v. O'Key, 889 P.2d 663 (Or. 1995) (court

considered testimony of Dr. Burns, an optometrist, police officer and NHTSA studies).

Finally, those courts that did not undertake an independent evaluation of the admissibility of HGN evidence tended simply to cite to the decisions of other state courts. See, e.g., Malone v. City of Silverhill, 575 So. 2d 101 (Ala. Crim. App. 1989);

Hawkins v. State, 476 S.E.2d 803 (Ga. Ct. App. 1996) ; State v.

Garrett, 811 P.2d 488 (Idaho 1991); State v. Buening, 592 N.E.2d

1222 (Ill. App. Ct. 1992); State v. Murphy, 451 N.W.2d 154 (Iowa

1990); State v. Breitung, 623 So. 2d 23 (La. Ct. App. 1993);

State v. Bresson, 554 N.E.2d 1330 (Ohio 1990); State v. Cissne,

865 P.2d 564 (Wash. Ct. App. 1994); State v. Zivcic, 598 N.W.2d

565 (Wis. Ct. App. 1999).

B. Difference between Daubert/Kumho Tire/New Rule 702 and
Frye.

The difference in approach between the Daubert/Kumho

Tire/New Rule 702 and the Frye tests reveals an unmistakable

irony. The Frye approach to admissibility of scientific evidence

was criticized widely as being too "rigid" because it would deny admissibility to evidence that was the result of new scientific discovery that, while factually sound and methodologically

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reliable, had not yet gained general acceptance. Christopher Mueller & Laird Kirkpatrick, Evidence § 7.8 (4th ed. 1995); 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6266 (1997). Under the Daubert test, however, general

acceptance was but one of the evaluative factors and, provided the evidence at issue was subject to being tested, did not suffer from an unacceptably high error rate and favorably had been peer reviewed, the evidence would be admitted because it was reliable. Under Daubert, therefore, it was expected that it would be easier

to admit evidence that was the product of new science or technology.

In practice, however, it often seems as though the opposite has occurred–-application of Daubert/Kumho Tire analysis results

in the exclusion of evidence that might otherwise have been admitted under Frye. Although this may have been an unexpected

outcome, it can be explained by the difference in methodology undertaken by the trial courts when measuring proffered evidence under Daubert/Kumho Tire, as opposed to Frye. Under Daubert, the

parties and the trial court are forced to reckon with the factors that really do determine whether the evidence is reliable, relevant and "fits" the case at issue. Focusing on the tests used to develop the evidence, the error rates involved, what the learned publications in the field have said when evaluating it

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critically, and then, finally, whether it has come be generally accepted, is a difficult task. But, if undertaken as intended, it does expose evidentiary weaknesses that otherwise would be overlooked if, following the dictates of Frye,                                            all that is

needed to admit the evidence is the testimony of one or more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted. Wright & Gold, 29 Federal Practice and Procedures § 6266 ("Daubert's focus upon multiple criteria for scientific validity compels the lower courts to abandon long existing per se rules of admissibility or inadmissibility grounded upon the Frye standard.").

Daubert's challenge is unmistakable. While courts may be

skilled at research and analysis, the task of deciding the admissibility of new or difficult scientific or technical evidence involves subject matters that are highly specialized, and there is a risk that the court, forced to resolve an issue without the luxury of unlimited time to reflect on it, will get it wrong. This is especially true because judges do not determine the reliability of scientific or technical issues in the abstract but rather in the context of deciding a specific

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dispute. 41

The principle shortcoming of Frye was that it excused the

court from even having to try to understand the evidence at issue. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence,

§ 702.05[ 1] (2d ed. 1997) (Under Frye "[ t] he court itself did not have to comprehend the science involved . . . [ it] only had to assure itself that among the people involved in the field, the technique was acceptable as reliable."). Further, given the impact of the stare decisis doctrine, once a court, relying on

Frye, had ruled that a doctrine or principle had attained general

41            Justice Stephen Breyer, all too aware of this problem, wrote in the introduction to the Reference Manual on Scientific Evidence 4 (2d ed. 2000) :

[M]ost judges lack the scientific training that might facilitate the evaluation of scientific claims or the evaluation of expert witnesses who make such claims. Judges are typically generalists, dealing with cases that can vary widely in subject matter. Our primary objective is usually process-related: seeing that a decision is reached in a timely way. And the decision of a law court typically . . . focuses on a particular event and specific individualized evidence.

See also Mueller & Kirkpatrick, Evidence § 7.8 (4th ed. 1995) ("The main difficulty [with the Daubert case] is that courts are ill equipped to make independent judgments on the validity of science. Most judges are not scientists, and they do not have the time to spend at trial or beforehand to make fully considered decisions on validity.").

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