So What is Nystagmus and Why Should I Care?

1 Nystagmus is defined as "a rapid involuntary oscillation of the eyeballs." Webster's Ninth New Collegiate Dictionary 813 (1989) .

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containers. He also indicated that his difficulty in some of the sobriety tests might have been attributable to an injury that he suffered to his knees several years earlier. The injury causes stiffness when sitting for extended periods of time, as was the case on the day in question.

Appellant's nephew and a friend of his also testified on behalf of appellant. They both stated that they had been with him since about 3:00 p.m. that day, as they were flying back from Florida together. They stated that they did not observe appellant drink any alcohol. They drove with him from Baltimore-Washington International Airport and accompanied him into the tavern that he owns. They admitted that, once they went into the tavern, they socialized with other patrons and could not be sure that he did not have anything alcoholic to drink at the tavern, but they did not observe him doing so. The waitress who was working at the tavern that night stated that appellant only had a ginger ale to drink while he was there. Appellant's son picked him up at the police station and stated that he could not detect any alcohol on appellant's breath or any other signs of drinking. Appellant's wife was waiting for him when he returned home and she, too, testified that she was unable to detect any alcohol on his breath or any other signs that he had been drinking.

Horizontal Gaze Nystagmus

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We first acknowledge that the HGN test, when used to detect the presence of alcohol in a person's system, has been the subject of attack, usually with respect to the qualifications of officers who administer the test. It has been noted that:

One of the test's shortcomings is that the officer administering the test may not be properly trained to understand all aspects of the test and to produce results as accurately as the NHTSA manual suggests. . . .

.                 . . .

. . . To demonstrate a proper foundation, an officer must show that he is trained in the particular procedure, that he is certified in the administration of the procedure, and that the procedure was properly administered. [Footnotes omitted.]

Stephanie E. Busloff, Note Can Your Eyes Be Used Against You? The Use of the Horizontal Gaze Nystagmus Test in the Courtroom, 84 J. Crim. L. & Criminology

216-33 (1993). See also Jonathan D. Cowan & Susannah G. Jaffee, Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication, 9 Am. Jur. Proof of Facts 3d 459 (1990) ; Lawrence Taylor,

Drunk Driving Defense, § 4.4.5 (3d ed. Supp. 1994) ; Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 (1989); F.R. Irwin, Defense of Drunk Driving Cases (3d ed. 1985). See also

State v. Superior Court, 718 P. 2d 17 (1986) (appendices A and B) ; 2 Donald H. Nichols, Drinking/Driving Lit., § 24.09 (1995) .

These requirements are faulty in one respect: the level of competency among the officers who administer the test is wide‑

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ranging. The NHTSA manual defines the "well-trained technician" as an individual who studies and properly adheres to the NHTSA manuals. In all probability, not every offi­cer would meet this standard. Therefore, this comment suggests that certification for admin­istering the HGN test should not only guaran­tee that the officer will know how to adminis­ter the test and know what to look for, but that the officer will know that there are many other causes of HGN other than alcohol. The officer then could at least make a simple connection between alcohol and the effects on eye movement. With such knowledge, the offi­cer could be required to question a suspect about his or her medical condition before administering the HGN test. The officer could carry a check-off card with relevant informa­tion to remember the requisite steps. Such an approach would be inexpensive and easy to implement.

Id. at 234 (footnotes omitted).

Appellant alleges in his brief, first, that HGN testing is scientific in nature and, thus, the trial court erred in concluding that it was not and admitting it without a proper foundation having

been laid under the Frye/Reed (Frye v. United States, 293 F. 1013 (D.C. Cir.

1923) , and Reed v. State, 283 Md. 374 (1978) ) standard. Appellant also alleges that, in any event, a proper foundation as to the qualifi­cations of the officer was not laid below and, thus, his testimony as to the HGN test should not have been permitted over appellant's objection.

We agree that the Horizontal Gaze Nystagmus test is scientific in nature and depends, for its admissibility, upon satisfactory proof of its reliability and its acceptance in the relevant

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scientific and medical communities. Because we shall, however, take judicial notice of its reliability and its acceptance in those communities, we shall not reverse the trial court on the grounds that a foundation for the admissibility of the test itself was not laid. We shall hereafter hold that the results of HGN testing are admissible in evidence in the courts of this State, provided the administrator of the test is duly qualified and the testing procedure is conducted properly. But, we shall reverse appellant's convictions on the alcohol-related offenses because, under the

circumstances of this case, the record does not reflect that the officer was in fact properly trained or certified to administer the test. We explain.

The majority of foreign jurisdictions that have addressed the issue have held that the test for HGN is a scientific test. Most of those few states that have held that it is not a scientific test opine that its admissibility depends upon a lesser standard because it is a mere field test and, thus, is admissible without a scientific foundation.' Thus, in both the states holding that the HGN test is a scientific test (the majority) and those states

2 There is some confusion in the cases in describing the use of the terms "scientific test" and "field test" as if the two concepts were mutually exclusive. We point out that a "field

test" is a test conducted in the field, i.e., along the side of the road. When HGN testing is done, as it usually is, along the road during a traffic stop, it is a field test. It nevertheless retains its scientific character.

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holding that it is only a field test, it is, nevertheless, admissible so long as certain predicates are satisfied.

One such case, which held that the HGN test is not a scientif­ic test and is admissible based upon a lower standard, is State v.

Sullivan, 426 S.E.2d 766 (S.C. 1993) . There, the trial court, according to the Supreme Court of South Carolina, had ruled HGN testing inadmissible, expressing

skepticism regarding HGN tests and not[ing] that nystagmus may be caused by physiological forces other than alcohol consumption. Addi­tionally, the circuit court related reserva­tions about police officers conducting and interpreting a medical/scientific test.

Id. at 769 (footnote omitted). In reversing the trial court, the

Sullivan court equated HGN tests with field tests and held that such results were "admissible when the HGN test . . . [ is] used to elicit objective manifestations of soberness or insobriety. . . . HGN tests shall not constitute evidence to establish a specific degree of blood alcohol content." Id. (citation omitted).

 

HGN as Scientific Evidence

 

Appellant contends that the trial court erred in admitting into evidence the results of the HGN test because the State failed to lay a foundation pursuant to Reed v. State, supra, 283 Md. 374, that this test was based on well-recognized scientific principles so as

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to have gained general acceptance in the particular field to which it belongs.

In Reed, the Court of Appeals stated:

[ W] ith particular regard to expert testimony based on the application of new scientific techniques, it is recognized that prior to the admission of such testimony, it must be estab­lished that the particular scientific method

is itself reliable. People v. Kelly, 17 Cal. 3d 24, 130 Cal. Rptr. 144, 549 P. 2d 1240 (1976); Jones, Danger — Voiceprints Ahead, 11 Am. Crim . L. Rev. 549, 554 (1973). See also Shanks v. State, 18 5 Md. 437, 440, 45 A. 2d 85 (1945); 3 Wigmore, Evidence § 795 (Chadbourn rev. 1970) .

On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests,fingerprint identification,                      blood

tests, and the like. See Shanks v. State, supra, 185 Md. at 440. Similarly, a trial court might take judicial notice of the invalidity or unreliability of procedures widely recognized in the scientific community as bogus or exper­imental. However, if the reliability of a particular technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a par‑

ticular process has achieved. People v. Law, 40 Cal.App.3d 69, 75, 114 Cal. Rptr. 708, 711 (1974) .

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The question of the reliability of a scientific technique or process is unlike the question, for example, of the helpfulness of particular expert testimony to the trier of facts in a specific case. The answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case. It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge's individual discretion.

Instead, considerations of uniformity and consistency of decision-making require that a legal standard or test be articulated by which the reliability of a process may be estab­lished.

The test which has gained general accep­tance throughout the United States for estab­lishing the reliability of such scientific methods was first articulated in the leading

case of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)[3]:

3 The Supreme Court in Daubert v. Merrell Dow Pharmaceutical, Inc.,

U.S., , 113 S.Ct. 2786, 2793 (1993) held that the Frye standard had been superseded by the Federal Rules of Evidence, and, specifically, Fed. R. Evid. 702. The Committee note to Maryland Rule 5-702, however, specifically states:

This Rule is not intended to overrule Reed v. State, 283 Md. 374 (1978) and other cases adopting the principles enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) . The

required scientific foundation for the admis­sion of novel scientific techniques or principles is left to development through

case law. Compare Daubert v. Merrell Dow Pharmaceuti­cal, Inc.,  U.S. , 113 S. Ct. 2786 (1993) .

Thus, the Frye/Reed standard is still the standard utilized in Maryland to determine the admissibility of scientific evidence. People v. Leahy, 882 P.2d 321 (Cal. 1994), also involved the admissi­bility of HGN testing and the continuing validity in California

(continued...)

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"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a

well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." (Emphasis supplied.)

That is to say, before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. Thus,

according to the Frye standard, if a new scien­tific technique's validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.

Id. at 380-81.

In a jurisdiction in which it was held that the HGN test was subject to the Frye standard of admissibility, it was noted that Frye required the State to satisfy a three-prong test prior to the

admission of HGN evidence: 1) that the underlying scientific theory is reliable, i.e., that nystagmus is an indicator of alcohol consumption; 2) that the method used to test for HGN is accepted by

3(...continued)

of the Frye standard after Daubert v. Merrell Dow Pharmaceutical, Inc. That Court, like Maryland's Court of Appeals in Reed, retained the Frye standard.

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scientists familiar with the phenomenon and test; and 3) that the particular officer involved has been trained to follow, and did follow, the procedures established by the scientists. State v. Witte,

836 P.2d 1110, 1117 (Kan. 1992) . At trial, in the case sub judice, the State did not lay any foundation as to the first two prongs of the test prior to Officer Rossiter's testimony. The State, however, contends that the HGN test is not scientific evidence at all, citing Crampton v. State, 71 Md. App. 375 (1987) , aff'd, 314 Md. 265

(1988) . In Crampton, this Court addressed whether the Frye/Reed standard applied to some of the same sobriety tests to which appellant was subjected in this case (excluding the HGN test). The field tests performed in Crampton are known commonly as reciting the alphabet, standing on one leg, heal to toe walking, and the finger to nose test. We stated there:

The Frye-Reed test is not, however, applicable to the case sub judice. Unlike the techniques employed in the above-cited cases, 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 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

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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. See People v. Ramirez, 199 Colo. 367, 609 P.2d 616, 620 (1980) . 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 388.

We have noted that the HGN test is also a field sobriety test. Field sobriety tests are tests of sobriety conducted in the field. HGN certainly meets that definition. We acknowledge that the NHTSA has described the HGN test as "the first and most valid test in the standardized field sobriety testing battery," and that the United States Supreme Court referred to this test as a "standard field

sobriety test[]" in Pennsylvania v. Muniz, 496 U.S. 582, 585 (1990) . The HGN test is, nonetheless, a scientific test, in that the fact that one's eye may jerk or quiver more when one is intoxicated is not universally known.

Alcohol has been known to mankind since the dawn of civiliza­tion. It was probably not long after that it was recognized that alcohol affects one's balance, coordination, and ability to recollect.' The HGN test, however, does not test a suspect's

4 The HGN test has been used by law enforcement officials for several decades. Appellate courts in this country began determining its admissibility as early as 1985. It was noted as

(continued...)

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coordination or ability to recollect. It is based upon a scientif­ic principle that the extent and manner in which one's eye quivers can be a reliable measure of the amount of alcohol one has consumed.

Nor does the mere fact that an officer may physically observe the jerking of a suspect's eyeballs without the aid of a machine make this test any less scientific. 1 McCormick on Evidence (John W. Strong et. al 4th ed. 1992) § 206B states:

It is said that more than 4,000 years ago the Chinese would try the accused in the presence of a physician who, listening or feeling for a change in the heartbeat, would announce wheth­er the accused was testifying truthfully. The modern "lie detectors" operate on the same general principle. [Footnotes omitted.]

It is the premise underlying lie detectors, i.e., that a physiologi­cal change is an accurate indication that a suspect is lying, that has failed to gain general acceptance in the scientific community, not the ability to measure the physiological change.' The principle

4(...continued)

long ago as 1826 that, in animals, nystagmus was a possible symptom of alcohol intoxication. Studies first conducted in 1897 indicated nystagmus in humans affected by alcohol. Gunnar Aschan

et al., Positional Nystagmus in Man During and After Alcohol Intoxication, 17 Q.J. of Studies on Alcohol 381 (1956) . See also Aschan & Bergstelt, Positional Alcoholic Nystagmus (PAN) in Man Following Repeated Alcohol Doses, Acta

Otolargngal Supp. 330: 15-29, 1975 (identifies studies by Bárány (1911), Bárány & Rothfeld (1913), Frenzel (1939), Plenkers (1943) and Walter (1954)) and notes that nystagmus effects of different types can increase for up to four hours after intake and still be present for up to several additional hours.

Read More: Part 10

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