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Cross Examination of the DUI Cop

Prepared by:

Felipe Plascencia

Law Office of Felipe Plascencia 15851 Whittier Blvd., 2nd Floor Whittier, CA 90603 (888) 9HELP-DUI (943-5738) (562) 947-8218 TEL (562) 947-8323 FAX www.helpdui.com [email protected]

Felipe Plascencia has been a criminal defense attorney since 1994 shortly after graduating from Loyola Law School in Los Angeles. In 1996, he joined the Los Angeles Public Defender's Office and set a record for the doing and winning the most DUI jury trials while working as a public defender. He left the office to continue his private practice in March of 1999. In November 2003, Mr. Plascencia was certified on Basic Science of Evidential Breath Alcohol Testing by the manufacturer of breath testing instruments in Mansfield, Ohio. He was certified in the theory of science of evidential alcohol testing, including alcohol and human physiology, practical issues, theory and operation of infrared breath alcohol testing, field and laboratory applications. He was deemed qualified to operate, perform essential diagnostic verifications and calibration of breath testing instruments. He is certified to operate and calibrate the Alco Sensor IV Preliminary Alcohol Screening device (PAS) and owns two instruments. He was also National Highway Traffic Safety Administration (NHTSA)-certified in the student course in May 2000 in Dallas, Texas and was NHTSA­certified as a field sobriety instructor in December 2000 in Nashville, Tennessee. He holds two certificates of completion for the Robert F. Borkenstein Course on "Alcohol, Drugs, and Highway Safety: Testing, Research, and Litigation" based out of Indiana University at Bloomington, one in December 2001, and one in May 2003. He is the only lawyer in the country to receive two certificates from Indiana University. He is the only California lawyer who has been accepted as a member of the International Association for Chemical Testing (IACT). He is a board member of the California DUI Lawyers Association and Specialist Member, Criminal Courts Bar Association and vice-President of the American Association of DUI Trial Lawyers. He is a member of the National College for DUI defense. He was a Keynote speaker at a statewide DUI seminar in Madison Wisconsin and also spoke at Oklahoma City DUI seminar. He has lectured at the California Public Defenders Association in Monterey, Sacramento and San Diego, California and the California DUI Lawyers Association. He lectured at Loyola Law School in 2004 through 2011, at the Mexican-American Bar Association's Annual DUI Seminar. He spoke at the Whittier Bar Association and the LA County Bar Association. He is a frequent speaker for the Lorman DUI seminars in California and for the California Association of Criminal Justice (CACJ). Mr. Plasencia is known for his aggressive style of defending people accused of DUI and is recognized by his peers as a premier DUI defense attorney.

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HAVE TH PROPER MENTAL ATTITUDE WHEN YOU BEGIN YOUR TRIAL. CONSIDER THE QUOTE BELOW WHEN YOU START TO DOUBT HOW FAR YOU SHOULD GO IN CROSS EXAMINING THE D.A. WITNESSES. "Our Duty is to defend at any cost. The Supreme Court has stated that defense attorneys can do just about anything to win their case. The following quote from U.S. vs. Wade makes this point. "Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. " U.S. v. Wade, 399 U.S. 218 (1967)(Justice White).

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DUI CROSS-EXAMINATION REGARDING FIELD SOBRIETY TESTS. Try giving the cop a taste of his/her own medicine on the issue of divided attention. The following tests are designed to make the cop fail.

Modified One Leg Stand/Rhomberg:

Have the cop put his feet together, hands to his side, look straight, lift one leg 6" off the ground, tilt the head back, close his/her eyes and estimate thirty seconds. He/she will never be able to count for more than 10 seconds before falling over.

Giving Your COP a Divided Attention Test in Front of the Jury

(I stole this from Bubba Head.) "With the black marker, please draw the roadway and all crossing streets, plus the lane configuration, including a North arrow. Then, draw my client's car in blue, using an arrow to show which way it was facing. Then, put all police vehicles in red, also with a red arrow indicating which way the cars were facing. Finally, use the green pen to draw the location of the field tests, including use of arrows in green to show where and how the field tests were oriented. Mark all street names in red, and draw and label for the jury any adjacent businesses or residences in blue." Never once has one been able to do this without major errors or asking for a repeat of the instructions. CROSS EXAMINATION- ARRESTING OFFICER

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POLICE REPORT a. b. c. d. You wrote an arrest report. When did you complete it? Took notes. You destroyed your notes.

e. If there are some mistakes, you can you use the following questios to marry the cop to the report. Below you will find a copy of a DMV transcript wherein I cross-examined a CHP officer. The cross-examination would be the same as if he was in court.

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Using a short question style of cross-examination allows you to keep control of the witness and forces him or her to give you mostly "yes" and "no" answers. Of course, there are areas where you need to ask questions that require more than a "yes" or a "no." For example, you may need to learn distances, time frames, or whether there were other witnesses.

Cross-Examination/ Marrying cop to the report HO: Hearing Officer FP: Felipe Plascencia PO: CHP Officer Berg FP: I notice that you have something in your hand at this time. PO: Yes sir. FP: You have the entire arrest report before you. PO: Yes sir. FP: You have a four-page document which is page one of three of your DUI investigation report and your checklist. PO: Yes sir. FP: You have something else in your hand. PO: Another report. FP: Oh, okay, unrelated. And in that report you have one through five with the checklist. PO: Yes sir. FP: I am going to ask you at this time to turn them over. PO: Ok. FP: If you need to refer to them I will ask you if you would like to reflect your recollection. At this time we want you to testify from memory. PO: All right.

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FP: You went to the academy. PO: Yes sir. FP: Six months. PO: Yes sir. FP: 40 hours of DUI training. PO: Yes sir. FP: About a week. PO: Yes. FP: Out of the 40 hours, how many of the hours were dedicated specifically to FST's? PO: I would say approximately 20 hours sir. FP: How many hours specifically dedicated to pre-FST questions? PO: About ten hours sir. FP: How many hours were dedicated specifically to noticing or jotting down objective symptoms of intoxication? PO: Approximately 10 hours sir. FP: That takes us to forty. Is there anything else that you remember. PO: No. FP: Now, in the academy you took some important courses. PO: Yes sir. FP: Some more important that others. PO: Yes. FP: One of the courses was report writing. PO: Yes sir.

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FP: That was a very important course. PO: Yes sir. FP: They taught you to write truthful reports. PO: Yes sir. FP: Accurate reports. PO: Yes sir. FP: Write them as soon as possible. PO: Yes sir. FP: And you know why that is right? PO: Yes sir. FP: Because you want to write stuff down when it is fresh in your mind. PO: Yes sir. FP: And if you don't do that you might have trouble remembering. PO: Yes sir. FP: And you knew that that report could be used either in court or that the DMV. PO: Yes sir. FP: That the Hearing Officer might rely on it. PO: Yes sir. FP: That a prosecutor might rely on it. PO: Yes sir. FP: The defense attorney may might rely on it. PO: Yes sir. FP: And you would need to rely on it to refresh your recollection. 6

PO: Yes sir. FP: And you were taught to put all the important information in the report. PO: Yes sir. FP: And when I say important information, it is the information that would establish the elements of the arrest. PO: Yes sir. FP: Because if you don't, you may be charged for making a false arrest. PO: Yes sir. FP: Now, in this case you wrote an arrest report. PO: Yes sir. FP: You also wrote a traffic collision report. PO: Yes sir. FP: And it is an official police report. PO: Yes sir. FP: And when I say report I am referring to both the arrest report and the traffic collision report. PO: Yes sir. FP: And if I am going to make a distinction, I will refer to one or the other so that we could understand what we are talking about, do you understand? PO: Yes sir. FP: Now lets talk about the reports in this case. FP: In this case, the report was truthful? PO: Yes sir. FP: Was accurate.

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PO: Yes sir. FP: It contained all the relevant information. PO: Yes sir. FP: You wrote it right after it happened. PO: Yes sir. FP: Did you write it the same day within hours or one hour, two hour... PO: The next day sir. Etc., etc.,

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After you marry him to the report, you can proceed with your cross examination. 2. DRIVING: a. WEAVING: i. You never asked him why he was weaving/swerving. ii. Did you know if changing the radio iii. Talking on the phone iv. Looking back at you which caused him to weave v. Talking to passengers vi. (only weaved 3 times in 2 miles? That is pretty good! vii. If weaving caused by alcohol, would expect consistent weaving. b. SPEEDING: i. You have ticketed many, many, many people for speeding. a. Rarely have been under the influence. ii. One reasonable interpretation is that the person was not focusing on speed. iii. Not in the top 20 clues for detecting under the influence of alcohol. iv. Not in NHTSA Manual or CHP manual v. Takes more skill to drive a car if speeding. c. REACTION TO LIGHS: i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. xiv. xv. Reacted to lights in a normal fashion. Did not ignore your lights. Began to slow down Properly slowed down. Did not brake erratically Exited freeway on first exit Used his signal Came to stop sign/red light. Stopped properly Stopped behind the limit line Properly accelerated Pulled over adequately Did not hit the curb Did not park too far from the curb Stopped just like a sober person would under similar circumstances.

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FIRST CONTACT: a. Appeared to understand your questions. 9

b. You did not think he was under the influence when pulled him over. c. You still had doubt. 4. ODOR OF ALCOHOL: i. ii. iii. iv. v. vi. vii. viii. ix. x. Smelled it right away Was very strong Could smell it from a couple feet Smelled it on his breath Smelled it when he got out Was strong when answering Pre-FST questions. Was strong during FST's. Was strong while inside patrol car. Was still strong when inside station. STRONG ODOR USUALLY MEANS RECENT DRINKING. a. If Drank bear 3 hours ago, will hardly smell it. b. If drank beer 1 minute ago, will have a strong odor. c. Strong odor does not tell you how much they drank d. Only tells you they recently stopped drinking.

b. Asked for license i. Reached for wallet ii. Got his wallet iii. Pulled out his wallet iv. Opened his wallet v. No difficulty grabbing his wallet vi. No difficulty opening his wallet vii. Pulled out his license. viii. Did not fumble through his wallet ix. Did not pull out a credit card or other cards. x. Properly pulled out his license. xi. Did not drop it on the floor board. xii. Properly handed you the license. c. Asked for his registration i. Got through same as above. d. Asked for his proof of insurance. i. Go through same as above.

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EXITING CAR: a. He opened the door. b. Did not brace self with seat. c. Did not brace self with door. 10

d. Did not stagger out. e. Did not stumble out. f. Exited like a sober person would under similar circumstance. 6. SPEECH a. b. c. d. e. f. g. h. i. j. k. 7. Never heard him speak before. Slightly slurred some words Which words did he slur? His speech was not slow. He did not mumble. Was not incoherent. Speech was not thick and heavy. You could understand everything he told you. He did not have to repeat his answers. Did you record his speech? No way of knowing for sure what his speech sounded like.

EYES a. If red eyes, say they were not blood shoot. b. If blood shot say: i. One reasonable interpretation is that were red bc late at night. ii. You heard of late night flights. iii. There they refer to them as a "red eye" bc people will have red eyes for being up late. iv. There are many reasons why eyes get red other than alcohol.

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PUPILS a. Were not dilated. b. Normal in size. c. You can't control the size of your pupils.

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UNSTEADY GAIT: a. when got out of car, you directed him to sidewalk. * He started walking. * Walked to the sidewalk. * He walked fine.

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APPEARNCE: a. Face: i. No red face ii. Not flushed 11

iii. Not sweaty iv. Looked normal 11. FSTS a. Know difference between FST's and SFST's? i. SFST= a. Horizontal Gaze Nystagmus (HGN) b. Walk and Turn (WT) c. One Leg Stand (OLS) ii. FST's a. Romberg b. Finger Count c. Hand Pat d. Alphabet e. Finger to Nose 12. PRE FST QUESTIONS: i. DID NOT HAVE TO ANSWER ANY QUESTI0NS. ii. But he did. He appeared to understand all of your questions. He immediately responded to your questions. He gave you the corresponding answer to each and every question. WE CAN AGREE THAT HIS MENTAL ABILITIES APPEARED TO BE FINE. YOU DID NOT FORM THE OPINION THAT HE WAS UNDER THE INFLUENCE. YOU WERE LOOKING TO REACH THE LEVEL OF PROBABLE CAUSE TO ARREST.

b. c. d. e. f. g.

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DID NOT HAVE TO DO ANY FIELD SOBRIETY EXERCISES. a. But he did.

You have to give the jury something that shows how ridiculous this FST are. The following questions can be used to drive the point home. 14. 15. 16. 17. 18. 19. 20. 21. 22. Do you have a driver's license? You had to take a test to get one, just like everyone else. You have to get 70% right. Applicants have to take a driving test. You took a driving test? Where you required to stand on one foot before you got your license? Did the DMV employee walk you to the car for the driving test? Did you have to walk heel to toe to get to your car? There were painted lines in the parking lot. 12

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

They did not have you walk heel to toe on the lines, right? You were given an eye examination. You had to look a chart. They did not put a finger in front your face. They did not move the finger back and forth. They did not give you an HGN test. You were given a written exam. You were given a manual to study ahead of time. You knew what you would be tested on. When you gave Johnny the FST' did you have him practice? You gave him a bunch of instructions on each exercise at once. You did not tell him what you were testing him on. In fact, on the One Leg Stand you told him that if he put his foot down, he could pick it back up and continue counting. But, you did not tell him that it would be used against him. So, these FST's are not really tests, they are more like POP QUIZEZ.

LETS TALK ABOUT THESE POP QUIZES FOR A MINUTE 38. 39. 40. HGN. Can't fake angle of onset. How many inches was finger away from the face? How many inches was tip of object moved to the side when angle was first seen? a. What is first thing you are suppose to do? i. (check for equal pupil tracking) ii. (equal pupil size) b. Check for lack of smooth pursuit i. (two seconds out and 2 seconds in, do it twice) c. Check for nystagmus at maximum deviation (exstremes) d. Check for Angle of onset prior to 45 degrees. i. You estimated the Angle? ii. Could have been at 45 degrees. (if at 45 degrees, your expert will say D is .05) e. This test is to confirm the presence of alcohol. f. He told you that he drank. g. You still did this. h. You did not believe him? i. There are many other causes of nystagmus. i. (see Schultz case attached p. last two pages of case) j. Marceline Burns declared not expert for HGN. k. HGN can occur at .04 or lower. i. (see State of New Mexico v. James Lasworth p. 8 and 9.) attached (see FST charts below)

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HGN WALK AND TURN OLS ROMBERG FINGER TO NOSE HAND PAT.

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HORIZONTAL GAZE NYSTAGMUS

FINE - WRONG ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___

1. STAND STRAIGHT 2. FEET TOGETHER 3. KEEP ARMS AT SIDE (NOT RAISE greater than 6") 4. KEEP HEAD STRAIGHT 5. DO NOT MOVE TRACKING 9. VERTICAL GAZE NYSTAGMUS 6. 10. SWAYS DURING YOUR HEAD 7. LOOK AT STIMULUS ONLY 8. HAS EQUAL PUPIL SIZE EQUAL PUPIL TEST 11. USES ARMS FOR BALANCE 12. LACK OF SMOOTH PURSUIT 13. STAGGERS OUT OF POSITION 14. NYSTAGMUST AT THE EXTREMES 15. DOES NOT PAY ATTENTION DURING INSTRUCTIONS 16. STARTS TOO SOON 17. ANGLE OF ONSET

(50% OF POPULATION WILL SHOW SYMPTOMS WITH NO ALCOHOL IN THEIR SYSTEM.)

VALIDITY WILL BE COMPROMISED IF NOT DONE IN A STANDARDIZED FASHION

(NATIONAL HIGHWAY SAFETY ADMINISTRATION MANUAL)

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WALK AND TURN TEST

FINE - WRONG 1. STAND STILL.................................................................. 2. FEET TOGETHER 3. RIGHT FOOT OVER LEFT FOOT 4. HANDS TO YOUR SIDES DURING INSTRUCTIONS 5. KEEP ARMS AT SIDE 6. CAN'T KEEP BALANCE DURING INSTRUCTIONS 7. WALK NINE STEPS FORWARD 8. WALK NINE STEPS BACK 9. MISSES HEEL TO TOE 10. SWAYS GREATER THAN 3 INCHES 11. RAISES ARMS FOR BALANCE 12. LOOSES BALANCE 13.COUNT EACH STEP OUT LOUD 14.STAGGERS OUT OF POSITION 15.TURN DONE IN SMALL STEPS 16.STEPS OFF LINE 17. TURNS IMPROPERLY 18. STOPS WHILE WALKING ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___

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"ONE LEG STAND"

FINE - WRONG STAND STRAIGHT ___ ___ FEET TOGETHER ___ ___ KEEP ARMS AT SIDE (NOT RAISE greater than 6") ___ ___ STAND ON ONE LEG ___ ___ KEEP OTHER LEG STRAIGHT ___ ___ FOOT POINTED FORWARD ___ ___ FOOT PARALLEL TO GROUND ___ ___ LIFT APPROX "6" OFF THE GROUND ___ ___ COUNT OUT LOUD IN THIS MANNER 1001, 1002 ___ ___ AND SO ON UNTIL I SAY "STOP" (30 SECONDS) 10. SWAYS WHILE BALANCING (GREATER THAN "2") ___ ___ 11. USES ARMS FOR BALANCE (RAISES GREATER THAN "6") ___ ___ 12. STAGGERS OUT OF POSITION ___ ___ 13. KEEPS PUTTING FOOT DOWN ___ ___ 14. LOOSES BALANCE ___ ___ 15. DOES NOT PAY ATTENTION DURING INSTRUCTIONS ___ ___ 16. HOPS ___ ___ 17. STARTS TOO SOON ___ ___ 18. SHUFFLES FEET ___ ___ 19.TEST STOPPED FOR SUBJECT'S SAFETY ___ ___ 1. 2. 3. 4. 5. 6. 7. 8. 9.

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ROMBERG BALANCE

1. STAND STRAIGHT 2. FEET TOGETHER 3. HANDS TO YOUR SIDE 4. TIL HEAD BACK 5. CLOSE YOUR EYES 6. BRINGS HEAD FORWARD 7. COUNT SILENTLY IN YOUR HEAD 8. KEEP ARMS AT SIDE (NOT RAISE greater than 6") 9. ESTIMATE 30 SEC. - (can be 10 under or 10 over) . 10.SWAYS GREATER THAN 2 INCHES 11.USES ARMS FOR BALANCE 12.LOOSES BALANCE 13.DOES NOT PAY ATTENTION DURING INSTRUCTIONS 14.STAGGERS OUT OF POSITION 15.STARTS TOO SOON 16.RIGID MUSCLE TONE 17.RAPID EYE LID FLUTTERS 18 .UNDERSTANDS INSTRUCTIONS 19.TEST STOPPED FOR SUBJECT'S SAFETY

FINE - WRONG ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___

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FINGER TO NOSE

1. STAND STRAIGHT 2. FEET TOGETHER 3. TIL HEAD BACK 4. CLOSE YOUR EYES 5. KEEP ARMS AT SIDE 6. MAKE A FIST AND POINT WITH YOUR INDEX FINGER 7. TOUCH THE TIP OF NOSE SIX TIMES 8. SWAYS GREATER THAN 2 INCHES 9. USES ARMS FOR BALANCE 10. LOOSES BALANCE 11. DOES NOT PAY ATTENTION DURING INSTRUCTIONS 12.STAGGERS OUT OF POSITION 13.RIGID MUSCLE TONE 14..EYE LID FLUTTERS 15.USES WRONG HAND 16. STARTS TOO SOON 17.DOES NOT RETURN HAND 18.OPENS EYES 19.TEST SOPPED FOR SUBJECT'S SAFETY FINE - WRONG ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___

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41.

PAS TEST: a. It is only a field sobriety test. b. Tell us exactly what you told him. (could should say the following or close to it. i. V.C. 23612 (i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person's obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person's blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person's right to refuse to take the preliminary alcohol screening test. c. Breath Machines measures Breath Alcohol not Blood Alcohol. (Ask your own expert this: Breath Machines overestimate true blood alcohol levels if breath test is done during the absorptive phase. And Retrograde extrapolation can only be used if you are 100% sure the test subject is in the post absorptive phase.

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2. 3. 4. 5. 6. 7. 8.

You used same mouth piece for both samples. a. (Suppose to change mouth piece after each sample on PAS) i. Why? BC can contaminate sample. Does the PAS have a slope detector? Do you know what it is? a. (Slope detector is designed to detect mouth alcohol). How many minutes are you suppose to wait between samples? a. (have to wait two minutes between samples.) Is that is the CHP manual and/or the PAS manual? If have strong odor, must you be more careful with PAS. There a grater chance of mouth alcohol? What is a Thermister? i. (A thermistor in the manifold monitors breath flow and allows sampling of deep lung breath p7. of PAS manual) They usually do not know. Then I point out that it will read anything with alcohol such as wonder bread, bagels or pizza.) ii. The intoximeters manuals for the Alc Sens IV says: Intoximeters recommends that external accuracy checks and calibrations be performed using a dry gas standard approved for use by both NHTSA 20

and Intoximters. Alternatively, wet bath simulators which have been approved for use by NHTSA and Intoximters can be utilized with properly certified and maintained ethanol solutions."(p13) 9. Did you use a check list before administering the PAS? i. (Did cop use a check list. If one is required for Datamaster, why not use one for PAS. (I then say: You did not use one because this was not the real breath test required by law.) 42. Going to bathroom. a. Client did not go to bathroom from point of contact to time of booking. i. Alcohol is a diuretic ­ increases need to go to the bathroom ii. If needed X amount of beers to be .17, then how could he avoid bathroom? 43. BREATH TEST a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. p. q. r. s. t. u. v. w. x. y. Arrested Johnny. Put cuffs on him. Placed in inside patrol car. Closed the door. You got inside. Did not talk to him while driving. (See Manriquez case p. 16) i. Want to establish cop did not do proper observation) Entered police station. Parked car. You exited car Went to the trunk. Johnny inside car Doors were closed Windows were closed You put away your gun You were in the trunk area for about a minute You came back to the car. Opened door. Got Johnny out. He had no difficulty getting out No difficulty walking to station Was still in cuffs Went to breath testing room. You typed in some information. Gave him the breath test. Had him booked.

You could have stapled your notes to your report. Instead, you destroyed your notes. 21

This case outlines procedures for the 15 minute observation period. Here, cop kept looking at subject through rear view mirror and kept talking to him. That is usually not done by cops CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

JAIME CORDOVA MANRIQUEZ, Plaintiff and Respondent, v. STEVEN GOURLEY, as Director, etc., Defendant and Appellant.

D039757

(Super. Ct. No. GIC776015)

APPEAL from a judgment of the Superior Court of San Diego County, Thomas C. Hendrix, Judge. Reversed. Bill Lockyer, Attorney General, Dennis W. Dawson and Kathryn M. Megli, Deputy Attorneys General, for Defendant and Appellant. John T. Burke for Plaintiff and Respondent.

The Department of Motor Vehicles (DMV) suspended Jaime Manriquez's driver's license for driving with 0.08 percent or more of alcohol in his blood. (Veh. Code, § 13353.2.) An administrative hearing officer upheld the suspension, determining the arresting officer complied with state regulations requiring a 15-minute period of continuous observation before administering a breath test (Cal. Code Regs., tit. 17, § 1219.3, hereafter regulation 1219.3).1 The trial court granted Manriquez's ensuing petition for writ of mandate on the ground the observation criterion was not satisfied. On appeal, the DMV

1 Regulation 1219.3 provides: "A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the

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contends (1) the trial court erred by concluding the officer's observation of Manriquez did not comply with the regulation; and (2) even if the officer did not comply, Manriquez did not establish the violation resulted in an inaccurate test result. We conclude the trial court based its ruling on an incorrect interpretation of the regulation setting forth the continuous observation requirement and, as a result, erred by concluding Manriquez's evidence was sufficient to rebut the presumption the arresting officer properly performed the breath test. We therefore reverse the judgment. FACTUAL AND PROCEDURAL BACKGROUND At 12:01 a.m. on August 18, 2001, California Highway Patrol (CHP) Officer Timothy Fenton stopped Manriquez after noticing his Plymouth weaving in the number three lane of northbound Interstate 5. When he contacted Manriquez through the car's front passenger window, Officer Fenton observed indications of alcohol intoxication including bloodshot eyes and an odor of alcoholic beverage from the car's interior. Based on his administration of a series of field sobriety tests, the officer concluded Manriquez was under the influence of alcohol and at 12:17 a.m. arrested him for violation of Vehicle Code section 23152, subdivision (a). Officer Fenton transported Manriquez to the San Diego County jail where Manriquez took a breath test that showed blood alcohol level results of 0.11 at both 12:54 a.m. and 12:59 a.m. The officer issued an order suspending Manriquez's driver's license. Manriquez sought an administrative hearing at which the DMV offered, and the hearing officer admitted over hearsay objections, Officer Fenton's sworn statement in which he certified "under penalty of perjury under the laws of the State of California, that the above breath test sample results were obtained in the regular course of my duties" and he was "qualified to operate this equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations." The hearing officer also admitted, over the same objections, a precautionary checklist and results of the breath test, and Fenton's unsworn arrest/investigation report. At the hearing, Officer Fenton testified that about two minutes after he arrested Manriquez (approximately 12:19 a.m.), he placed him in the back of the patrol car, then called and waited for a tow truck. During that time, Officer Fenton remained in the patrol car, talking to Manriquez and doing paperwork. After Manriquez's car was released to the tow truck driver at 12:35 a.m., Officer Fenton drove Manriquez to the jail, where the breath test began at 12:51 a.m. According to Officer Fenton, before administering the test, he asked Manriquez if he had burped in the last 20 minutes; Manriquez responded he had not. The officer explained he conducted the required 15-minute observation period before the breath test while Manriquez was seated in his patrol car on the right side of the rear passenger seat; Officer Fenton talked to him and looked at him in his rear-view mirror as he was driving to the jail. Officer Fenton testified Manriquez did not eat, drink, smoke or vomit while in the patrol car. Manriquez presented the testimony of Ron Rockwell, a former deputy sheriff, who testified it was impossible for an officer driving a vehicle to continuously observe someone who was seated in the vehicle's back seat. Although Rockwell admitted he was not present at the scene and could not testify definitively whether Officer Fenton's observation satisfied state requirements, in Rockwell's opinion and experience, the right side of the back seat was the worst position for the 15-

subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked."

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minute viewing period. Rockwell testified that if he had been responsible for complying with the 15-minute rule, he would have "k[ept] an eye" on Manriquez for an additional 15-minute period after his arrival at the jail. Manriquez did not testify. The administrative hearing officer reimposed Manriquez's driver's license suspension. The hearing officer determined Officer Fenton had reasonable cause to believe Manriquez was driving a motor vehicle while under the influence of alcohol; that Manriquez was lawfully arrested for a violation of Vehicle Code section 23152; and he was driving a vehicle while he had 0.08 percent or more by weight of alcohol in his blood. In reaching its conclusions, the hearing officer noted the DMV's evidence contained a certification indicating the breath test was administered in compliance with title 17 of the California Code of Regulations, including the 15-minute observation rule. The hearing officer found Rockwell's testimony regarding the adequacy of Officer Fenton's 15-minute observation period was subjective, too speculative, and insufficient to rebut the statutory presumption of duty regularly performed. (Evid. Code, § 664 ["It is presumed that official duty has been regularly performed"].) Manriquez petitioned the superior court for a writ of administrative mandate. He argued the hearing officer erred when she found Officer Fenton complied with the 15-minute observation requirement; that the official duty presumption was rebutted by Officer Fenton's testimony that he was driving the vehicle, which established it was "absolutely impossible" for him to have complied with the requirement. Manriquez argued that because the department did not meet its burden to establish the reliability of the breath test, the court was required to issue the writ of mandate and set aside the DMV's order suspending his driving privileges. The trial court found it was impossible for Officer Fenton to have continuously observed Manriquez in compliance with regulation 1219.3 and concluded, as a result, Manriquez had rebutted the presumption of duty regularly performed. It granted a writ overturning the administrative decision to suspend Manriquez's driving privilege. The DMV appeals. DISCUSSION I. Administrative Per Se Procedure and Standard of Appellate Review We begin with a brief overview of the burdens of proof in an administrative DMV hearing, which "does not require the full panoply of the Evidence Code provisions used in criminal and civil trials." (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.) In this hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. (Veh. Code, §§ 13557, subd. (b)(2)(C)(i), 13558, subd. (c)(2); Lake v. Reed (1997) 16 Cal.4th 448, 456, 463; Petricka v. Department of Motor Vehicles, at p. 1348, citing Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 549.) The DMV may satisfy its burden via the presumption of Evidence Code section 664. (Petricka v. Department of Motor Vehicles, at p. 1348.) "Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that bloodalcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. [Citations.] . . . The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence. [Citation.]" (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64-65.) With this presumption, the officer's sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test. (Davenport v. Department of Motor Vehicles (1992) 24

6 Cal.App.4th 133, 140-141; Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1366.) Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. (Baker v. Gourley (2000) 81 Cal.App.4th 1167, 1172; cf. Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 739; Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th at p. 144.) "The licensee must show, 'through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed. . . .' [Citation.] Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation." (Baker v. Gourley, 81 Cal.App.4th at pp. 1172-1173, quoting Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th at p. 144; Robertson v. Zolin (1996) 44 Cal.App.4th 147, 151.) "In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ' "whether the weight of the evidence supported the administrative decision." ' " (Lake v. Reed, supra, 16 Cal.4th at p. 456.) Even exercising its independent judgment, the trial court still "must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) On appeal, this court ordinarily reviews the record to determine whether the trial court's findings are supported by substantial evidence. (Lake v. Reed, supra, 16 Cal.4th at p. 456.) But where, as here, the determinative question is one of statutory or regulatory interpretation, an issue of law, we may exercise our independent judgment. (See, e.g., Smith v. Santa Rosa Police Department (2002) 97 Cal.App.4th 546, 553; Shippen v. Department of Motor Vehicles (1984) 161 Cal.App.3d 1119, 1124.) II. Manriquez Failed To Rebut the Presumption of Officer Fenton's Compliance with Regulation 1219.3 The DMV contends the trial court erred when it concluded Officer Fenton did not comply with regulation 1219.3's requirement that Manriquez be "under continuous observation for at least fifteen minutes prior to collection of the breath sample . . . ." It argues: (1) the regulation does not require constant observation in which the officer is "solely focused on the driver to the exclusion of everything and everyone else"; (2) Officer Fenton's testimony, combined with Manriquez's admission he had not burped in the 20 minutes before testing, supported the hearing officer's factual determination; (3) Manriquez did not rebut the official duty presumption that Officer Fenton complied with the 15minute observation requirement; (4) the trial court's ruling would set a standard that is contrary to the public policy behind the administrative per se laws; and (5) Manriquez did not raise in his writ petition the determinative issue of whether compliance with the 15-minute rule was satisfied by Manriquez's admission that he did not burp. Manriquez contends he adequately rebutted the Evidence Code section 664 presumption by Officer Fenton's own testimony on cross-examination and the DMV's exhibits, and the DMV did not present evidence the test was nevertheless reliable. He concludes the trial court therefore correctly granted the writ. We disagree. Our consideration of the trial court's ruling requires us to ascertain the meaning of the phrase "continuous observation" in regulation 1219.3, which was adopted by the Department of Public 25

Health in 1971. (See Health & Saf. Code, § 100700; See Historical Notes, at <http://www.calregs.com/cgi-bin/om> foll. Cal. Code Regs., tit. 17, § 1219.3 [as of Nov. 25, 2002]; Intoximeters, Inc. v. Younger (1975) 53 Cal.App.3d 262, 265.) The trial court apparently based its ruling on an interpretation of regulation 1219.3 as obligating an officer to maintain direct and unbroken eye contact with the test subject for 15 minutes before the breath test. Because the evidence was undisputed Officer Fenton was driving at the same time he was observing Manriquez in the back seat of the vehicle before conducting the breath test, the trial court concluded it was impossible for the officer to comply with the continuous observation requirement. We do not so interpret the requirement. " 'The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law . . . , and while an administrative agency's interpretation of its own regulation obviously deserves great weight . . . , the ultimate resolution of such legal questions rests with the courts. . . .' " (Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93, citations & fn. omitted; accord Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 917, fn. 15; Yamaha Corp of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 14; Richard Boyd Industries, Inc. v. State Bd. of Equalization (2001) 89 Cal.App.4th 706, 712-713.) The parties have not cited and we are not aware of any reported California decision that has interpreted regulation 1219.3's continuous observation requirement. We have not found, or been provided with, any administrative interpretation of the regulation. We therefore proceed to interpret the regulation in accordance with applicable rules of statutory construction. (See Merrill v. Department of Motor Vehicles, at p. 918; Intoximeters, Inc. v. Younger, supra, 53 Cal.App.3d at p. 270 [same rules of construction for statutes govern the interpretation of regulations of administrative agencies].) Our foremost aim is to ascertain the intent of the agency issuing the regulation to effectuate the purpose of the law. (Merrill v. Department of Motor Vehicles, at p. 918; Modern Paint and Body Supply, Inc. v. State Bd. of Equalization (2001) 87 Cal.App.4th 703, 708.) When the agency's intent cannot be discerned directly from the language of the regulation, we may look to a variety of extrinsic aids, including the purpose of the regulation, the legislative history, public policy, and the regulatory scheme of which the regulation is a part. (People v. Bury (1996) 41 Cal.App.4th 1194, 1205.) Whenever possible, we will interpret the regulation to make it workable and reasonable. (Intoximeters, Inc. v. Younger, supra, 53 Cal.App.3d at p. 270.) The phrase "continuous observation" is not defined in the regulations, and we begin with its plain meaning. "Continuous" has been defined as "uninterrupted, unbroken, not intermittent or occasional; so persistently repeated at short intervals as to constitute virtually an unbroken series." (Black's Law Dict. (5th ed. 1979) p. 291, col. 2.) "Observation" is defined as "[t]he action or an act of paying attention, marking, or noticing; the fact of being noticed; notice, remark; perception." (Oxford English Dict. (2d ed. 1989) at <http://dictionary.oed.com>.) To "perceive" is to "apprehend (an external object) through one of the senses (esp. sight); to become aware of by sight, hearing, or other sense; to observe; 'to discover by some sensible effects' . . . ." (Ibid.) In 1973, closer in time to the regulation's adoption, Webster's New Collegiate Dictionary defined "observe" as "to guard, watch . . . . to see or sense especially through directed careful analytic attention." (State v. Reed (Tex.Ct.App. 1994) 888 S.W.2d 117, 121.) Giving this language its ordinary meaning, we hold that continuous observation for purposes of compliance with regulation 1219.3 does not mean an officer must keep his or her eyes focussed on the subject for an uninterrupted 15-minute period. Observation is not limited to perception by

26

sight; an officer may perceive a subject has eaten, drank, smoked, vomited or regurgitated2 by sound or smell and the perception by senses other than sight can be sufficient to comply with the regulation. Further, the regulation should be interpreted with reference to its purpose, which is to determine whether the test subject has smoked, ingested food or drink, or suffered physical symptoms that would adversely affect the test results. (See Health & Saf. Code, § 100715 [providing testing of breath samples by law enforcement shall be performed in accordance with regulations adopted by the Department of Health].)3 In our view, uninterrupted eye contact is not necessary (and may not always be sufficient by itself) to determine whether the proscribed events have occurred, so long as the officer remains present with the subject and able by the use of all his or her senses to make that determination. Our conclusion is consistent with a workable interpretation of the continuous observation rule, and also with the conclusions of other jurisdictions that have addressed this issue under similar regulations. (See State v. Smith (Conn.Ct.App. 1988) 547 A.2d 69, 73 [holding regulation requiring subject be under continuous observation did not require officer to "fix his unswerving gaze" on a subject during 15-minute interval before breath test; the fact officer operated police cruiser, prepared intoximeter for use and processed paperwork during the observation period did not require suppression of breath analysis tests]; Glasmann v. State, Dept. of Revenue, Motor Vehicle Div. (Colo.Ct.App. 1986) 719 P.2d 1096, 1097 [regulation requiring officer to closely and continuously observe the subject did not require in all cases that the officer "stare fixedly" at a test subject; officer complied with requirement even though during the 22 minutes preceding the test he completed a custody report, a summons, and a notice of revocation in front of the defendant]; In re Ramos (Ill.Ct.App. 1987) 508 N.E.2d 484, 486 [state trooper held to comply with regulation requiring continuous observation even where six minutes directly before administering the test, trooper was concentrating on resetting the machine rather than simply standing and staring at the defendant; defendant did not leave the area and was constantly in peripheral vision of trooper, who did not observe smoke or vomit in the area]; see also State v. Cash (Neb.Ct.App. 1995) 526 N.W.2d 447, 451 [officer need not stare fixedly at the person being tested

2 "Regurgitate" is defined as: "To expel the contents of the stomach in small amounts, short of vomiting." (PDR Medical Dict. (2d ed. 2000), p. 1546, col. 1.) 3 The continuous observation requirement apparently ensures the subject's mouth is free of alcohol that might skew the test results. (See, e.g., Robertson v. Zolin (1996) 44 Cal.App.4th 147, 152 [observing that the form on which test results were recorded indicated that presence of mouth alcohol requires the officer to stop the test and recommence a 15minute observation of the driver]; State v. Cook (Tenn. 1999) 9 S.W.3d 98, 100-101 [purpose of the requirement that a subject's mouth be free from foreign matter for 20 minutes before test administration is to ensure no foreign matter is present in the defendant's mouth that could retain alcohol and potentially influence the results of the test].) Regulation 1219.3 also requires the breath sample to be "essentially alveolar in composition," i.e., it must come from deep within the lungs. (See People v. French (1978) 77 Cal.App.3d 511, 521.) Presumably the prohibition on smoking during the observation period ensures the breath sample meets that requirement.

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for the specified period of time in order to satisfy the observation requirement, but must remain in the person's presence and be aware of the person's conduct; citing cases].) Here, Officer Fenton testified he remained with Manriquez while Manriquez was confined to the back of his patrol car for at least 25 minutes4 before he performed the breath test and during that time, Manriquez did not eat, drink, smoke or vomit. While he was driving, Officer Fenton looked at Manriquez and engaged him in conversation, which further assisted the officer in determining whether Manriquez was engaging in the proscribed conduct. The officer's close physical proximity and interaction with Manriquez met the continuous observation requirements of regulation 1219.3; he not only visually observed Manriquez through his rear view mirror, but also listened to him and was close enough using all of his senses to appreciate whether Manriquez was engaged in any of the proscribed acts. Asking Manriquez whether he burped in the past 20 minutes, while perhaps helpful, was not necessary to establish compliance with the regulation. Regulation 1219.3 requires the officer to ensure only that the subject has not had the proscribed materials in his mouth for the requisite period of time before conducting the test. In the circumstances of Manriquez's transport to the county jail, the fact the officer did not focus his eyes on Manriquez 100 percent of the time did not rebut the presumption that he properly performed the breath test in compliance with this regulation; the use of all of the officer's senses enabled him to assure compliance with the continuous observation requirement. The testimony of Manriquez's expert, Rockwell, did not rebut the Evidence Code section 664 presumption by proving the inadequate foundational reliability of Officer Fenton's breath test. (Baker v. Gourley, supra, 81 Cal.App.4th at p. 1173.) Rockwell could not and did not challenge Officer Fenton's actual observations because he was not present at the scene; his opinion was based only on an understanding that regulation 1219.3 required the test subject to be in the officer's direct eyesight for the requisite

4 At the hearing, Officer Fenton explained he actually observed Manriquez for about 25 minutes because his partner dealt with Manriquez's vehicle: "[Officer Fenton]: After I placed him in the rear of my patrol car, I sat in the driver's seat of my patrol car, and he was sitting to my right rear. And I'm asking questions, talking to him. And that's my observations, all the way to the county jail. By the time I get him in the seat [court reporter inserts a "sic" here], I've been with him for over -- I think it was a little over 20 minutes, uh, since I had him in the car. I guess it'd be 25 minutes, about 25 minutes. "[Manriquez's counsel]: Well, you testified that the tow truck got there at -- "[Officer Fenton]: I didn't do the storage of the vehicle, so -- "[Manriquez's counsel]: Well, it was turned over at 12:35 and the test is at 12:51. That'd be 16 minutes, correct? "[Officer Fenton]: Like I said, I was in the patrol car. My partner/officer was dealing with the 180. That's why her signature's on the bottom. My partner/officer always takes care of the vehicle. The arresting officer sits in the car and starts the jail paperwork."

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15-minute period.5 Rockwell's testimony did not constitute affirmative evidence (or permit an inference) that Officer Fenton did not in fact continuously observe Manriquez within the meaning of regulation 1219.3, and thus no burden shifted to the DMV to establish the reliability of the test results. (Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th at p. 144; Baker v. Gourley, at p. 1173.) Manriquez did not present evidence that during the 15-minute observation period he engaged in conduct that might invalidate the test results. In reaching our conclusions, we emphasize we do not intend to pronounce the manner of observation that will satisfy regulation 1219.3 in all cases; we simply hold that continuous observation within the meaning of the rule does not require direct and unbroken eye contact for the 15-minute period as long as other means of uninterrupted observation are adequate. Under the circumstances of this case, Officer Fenton's testimony that he drove Manriquez during all or part of the observation period was not sufficient to rebut the presumption -- established by his other testimony as well as his sworn report -- that he conducted the breath test in compliance with regulation 1219.3's requirements. Finally, we observe that even if Manriquez had proved Officer Fenton's observation did not comply with regulation 1219.3's requirements, noncompliance would not per se lead to a conclusion that the test results were affected, unreliable or inaccurate. (See People v. Williams (2002) 28 Cal.4th 408, 417 [standards of reliability are not coextensive with title 17 of the California Code of Regulations and blanket exclusion of test results is not justified by absence of substantial compliance with such regulations; noncompliance goes only to the weight of the evidence].) In sum, the trial court's finding, based on its misinterpretation of regulation 1219.3, was erroneous as a matter of law. Because Manriquez failed to rebut the presumption favoring reliability of the breath test results under the proper interpretation of the continuous observation requirement, the trial court erred in granting his writ petition. We need not reach the DMV's remaining contentions.

5 When asked about his training in the administration of the observation period, Rockwell testified: "[I]n cases where you are a lone officer, if you find it necessary to put . . . the suspect, uh, uh, in your vehicle with you and you're alone, it's abundantly important that the person be within your sight, and, uh, preferably in direct site [sic]. Uh, it's important, especially if you find yourself needing to place the suspect in the back seat, that the person be, uh, in, in view. Uh, the worst possible position, although it poses an officer's safety problem, for viewing a suspect under Title 17 requirements, is, uh, right rear, because if you're the driver, you'll discover soon that the inside rear view mirror does not afford you a view of someone sitting back far right. Uh, however, uh, again, it's complicated by the fact that, since you're driving from the, from the front seat and the suspect's in, in the back seat, you're going to have to toggle your vision between driving responsibilities and keeping an ongoing view of the person so that the 15-minute rule, uh, which, by the way, my training and experience is not discretionary on the part of the officer, so that the 15-minute rule is not violated to, uh, the best of your ability. And if you discover that you can't keep an ongoing view of the suspect, then you have to wait an additional 15 minutes when that opportunity is available."

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DISPOSITION The judgment is reversed. Appellant is entitled to costs on appeal. CERTIFIED FOR PUBLICATION

O'ROURKE, J. WE CONCUR:

KREMER, P. J.

McDONALD, J.

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Perceptual and Motor Skills, 1994, 79, 99-104. 8 Perceptual and Motor Skills 1994 FIELD SOBRIETY TESTS: ARE THEY DESIGNED FOR FAILURE?' SPURGEON COLE AND RONALD H. NOWACZYK Clemson. University Summary--Field sobriety tests have been used by law enforcement officers to identify alcohol-impaired drivers. Yet in 1981 Tharp. Burns. and Moskowitz found that 32.% of individuals in a laboratory setting who were judged to have an alcohol level above the legal limit actually were below the level. In this study, two groups of seven law enforcement officers each viewed videotapes, of 21 sober individuals performing a variety of field sobriety tests or normal-abilities tests, e.g.. reciting one's address and phone number or walking in a normal manner. Officers judged a significantly larger number of the individuals as impaired when they performed the field sobriety tests than when they performed the normal-abilities tests. The need to reevaluate the predictive validity of field sobriety tests is discussed. Field sobriety tests have been used throughout this century by police officers to help them assess whether an individual is too impaired to drive an automobile. A classic paper by Bjerver and Goldberg, (1951) examined the relationship between performance on the field sobriety test and driving. Over the past two decades the National Highway Transportation Safety Administration (NHTSA) has funded several studies to examine the effectiveness of field sobriety tests in predicting a person's level of intoxication and driving pairment (e.g., Anderson. Schweitz. & Snyder. 1983; urns & Moskowitz. 1977; Tharp, Burns, & Moskowitz. 1981). In a 1977 report, Burns and Moskowitz examined a number of different tests commonly used by officers. Based on the results from a laboratory study, they recommended three tests, the Horizontal Gaze Nystagmus (HGN) test, thewalk-and-turn test, and the one leg stand test for further research. The HGN measures the angle of gaze at the onset of jerking movement which can be influenced by alcohol consumption as well as other physiological factors. The other two tests require dividing, attention among mental and physical tasks. Briefly, the walk-and-turn test requires a person to stand on a line in a heel-to-toe position while listening to instructions and then to take nine steps in a heelto-toe fashion, pivot, and take nine more steps along a straight line. The one-leg stand requires an individual to stand with arms at the side and extend one foot six inches off the ground and maintain that position while counting for 30 seconds without extending the arms or losing balance. (For complete instructions see "DWI Detection and 'Requests for reprints can be sent to either author at the Department of Psychology, Clemson University, Clemson, SC 29634. The authors thank Ronnie Cole for his assistance in the completion of this study and Jack Davenport for his comments on an earlier draft of this manuscript.

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Divided Attention Field Sobriety Testing" by NHTSA, 1987.) Although these tests seemed to hold the most promise, the authors reported that false alarms are a concern. In the 1977 study, 47 percent of the subjects who would have been arrested based on test performance actually had a blood alcohol concentration (BAC) lower than .10 percent, the decision level used by officers. A 1981 report by Tharp, et al employed the three previously mentioned tests in another laboratory study. The error rate improved somewhat; 32 percent of the participants judged to have BACs greater than .10 actually had BACs lower than .10, the decision point used in many states for assuming driving impairment. Reliability coefficients for these tests, however, were often below accepted levels for standardized clinical tests. Reliable rests have coefficients of approximately .85 or higher (Rosenthal & Rosnow, 1991). Test-retest reliability coefficients for the field sobriety tests ranged from .61 to .72 for individual tests and .77 for the total test score for 77 individuals who were dosed to the same BAC level on two occasions. Interrater reliability coefficients, based on having different officers score performance on each occasion, were even lower, ranging from .34 to .60 with .57 as an over-all test score. Problems in scoring can be attributed, in part, to the lack of standardization across many of the field sobriety test studies. In addition, a few miscues in performance can result in an individual being scored as impaired (Anderson, et at.. 1983). For example, a person is viewed as impaired for missing two of nine points on the walk-and-turn test or two of five points on the one-leg stand test. The stringent scoring criteria as well as potential subjectivity in determining whether a point should be awarded may account for accuracy rates that vary from 72 to 96 percent among police agencies using these tests in the Anderson, et al. study. The fact that these tests are largely unfamiliar to most people and not well practiced may make it more difficult for people to perform them. As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of their unfamiliarity with the rest. This study tested the hypothesis that sober individuals will find the field sobriety tests difficult to perform and, as a result, will be judged to be impaired by officers viewing their performance. Individuals who were completely sober were asked to perform several field sobriety tests and several "normal-abilities" tests which should be well known to individuals. These latter tests included answering personal data questions, such as stating one's address and phone number, as well as walking in a normal manner. Performance on the field sobriety tests and normal-abilities tests was videotaped. Law enforcement officers were asked to view these tapes and determine if these individuals were impaired ("too drunk to drive"). If the field sobriety tests are difficult to perform under normal circumstances, then we can expect officers to judge incorrectly individuals as being impaired on the basis of the field sobriety test performance as compared with scores on the normal-abilities tests. METHOD Subjects and Design Fourteen police officers from the local municipality or county sheriff's office rated the performance of 21 individuals who had completed the field sobriety and normal-abilities tests. These officers, with 1 to 17 years of law enforcement experience (M = 11.7 yr.) were volunteers who were certified by the South Carolina Academy for Police Officers which is a state requirement. As part of this certification requirement they had completed the state DUI

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training program and have had field experience with DUI detection. All officers were assigned to duties in the field. Ten males, seven white and three African-American. and eleven white females served as participants. They were recruited from local businesses. The owners of these businesses were asked if they had any employees who were willing to volunteer to serve in an experiment involving psychomotor tasks. Participants were currently employed, between 21 and 55 years of age, and not overweight, and had no known physical disabilities. All individuals and officers were paid for their participation. The individuals performed both field sobriety tests as well as normal-abilities tests. Half of the officers were randomly assigned to each condition in which they viewed performance on either the field sobriety or normal- abilities tests. Tests Performed Prior to the administration of the tests, each participant was administered the Datamaster breathalyzer test. All participants had a BAC level of .00. Each participant performed six field sobriety tests and four normal-abilities tests in the same order in an indoor setting. The field sobriety tests included the walk-and-turn test, alphabet recitation, one-leg stand, a one-leg stand while tilting backward with the eyes closed and touching the nose, a one-leg stand with counting, and a one-leg extension test. These tests were selected after interviewing a number of officers concerning tests they used in the field. None of these officers served in this study. The Horizontal Gaze Nystagmus test was not included because it requires officers individually to monitor the participants' eye movements which would have been difficult to videotape in a controlled fashion. It is also not included in the 1987 NHTSA self-instructional guide (NHTSA, 1987). The four normal-abilities tests included counting from 1 to 10, reciting one's Social Security number, driver's license number or date of birth, reciting one's home address and phone number, and walking in a normal manner, turning around, and walking back to the starting point. These tests were selected by the experimenters to sample motor and cognitive activities that are commonly performed by most individuals. Standard instructions for each test were read by the experimenter. Participants were told that they would perform a number of motor-coordination tasks that would last approximately 30 minutes. These instructions were based on those used by law enforcement in South Carolina and followed NHTSA guidelines. If participants had questions regarding the instructions, the experimenter reread the appropriate section. The reading of instructions was included on the videotape. The tests were performed indoors in a meeting room where distractions were minimal. A 7.62-cm wide strip of tape was placed on the floor for the walk-and-turn test as per NHTSA requirements. Procedure Each officer watched a videotape of the 21 individuals performing one of the two sets of tests. The order of performance of the individuals was the same for both the field sobriety tests and normal-abilities tests. The officers were provided with sheets of paper listing the participants by number. The officers were allowed to take notes and were asked "Do you feel, as a law enforcement officer, that the following subjects, based on field sobriety tests performed on videotape, have had too much to drink to drive. 33

Their responses, either "yes" or "no," were recorded for each individual. The decision was recorded by the officer immediately, after viewing the individual's performance and prior to viewing the next individual's performance. Each officer participated in individual sessions. RESULTS The proportion of officers who decided that an individual had "too much to drink" was recorded for each individual separately for the field sobriety and normal-abilities tests. There was a significant difference as a function of test (t29 = 4.38, p<.01). Forty-six percent of the officers' decisions were that an individual had "too much to drink" from viewing the field sobriety tests. Fifteen percent of the decisions from the normal-abilities tests were that a person had "too much to drink." Differences among individuals were apparent. Only three individuals were rated as "unimpaired" by all officers on both the field sobriety and normal-abilities tests. One individual's performance was rated as showing he had had "too much to drink" based more on the normalabilities tests (by three officers) than on the field sobriety tests (none of the officers). Five individuals were rated as having had "too much to drink" by all the officers who viewed the field sobriety tests. One other individual was rated as having had "too much to drink" by all but one officer. Of these six individuals only one was rated as "impaired" by as many as four of the officers who saw the same individuals performing the normal-abilities tests. Four of these individuals were rated as having had "too much to drink" by two or fewer of the officers viewing the normal-abilities tests. Discussion The data indicate that judgments of impairment are influenced by the type of test performed. An individual was more liken to be judged as impaired on the basis of field sobriety test performance than on performance of the normal-abilities tests. Even without alcohol, the number of errors made by individuals performing the field sobriety tests was sufficient for officers to judge that the individuals had had too much to drink. These findings are consistent with other studies reporting sizable percentages of individuals judged to be impaired when they were not (Burns & Moskowitz, 1977; Tharp, et al, 1981). While training of officers, standardization of test instructions, administration, and scoring may reduce the number of incorrect classifications, the major obstacle may be the field sobriety tests. The fact that these tests require unfamiliar and unpracticed motor sequences may put an individual at a disadvantage when performing them. To the law enforcement officer who has demonstrated the tests many times, the motor sequences may, seem easy and straightforward. It may also be that to the casual observer that the tests are easy to perform. Yet, when an untrained individual actually performs the test, then the difficulty of performing the tests at an acceptable level may become evident. The reliance on field sobriety test performance by law enforcement officers in their decision to arrest or not and by juries in their decision whether to convict a person of driving under the influence underscores the need to examine field sobriety tests critically. The tests should discriminate between the two populations of individuals who are impaired and those who are not. Ideally, the tests should separate the two populations that is, increase the mean difference between the two populations. The tests, however, may be doing nothing more than adjusting the officer=s , or criterion measure, downward. 34

These tests must be held to the same standards the scientific community would expect of any reliable and valid test of behavior. This study brings the validity of field sobriety tests into question. If law enforcement officials and the courts wish to continue to use field sobriety tests as evidence of driving impairment, then further study needs to be conducted addressing the direct relationship of performance on these and other tests with driving. To date, research has concentrated on the relationship between test performance and BAC and officers' perceptions of impairment. This study indicates that these perceptions may be faulty. S. COLE & R. H. NOWACZYK REFERENCES Anderson, T. E., Schweitz, M. B (1983) M. B. (1983) Field evaluation of a behavioral battery for DWI. Final Report, DOT-HS-806476. Bjerver, K. &: Goldberg, L. (1951} Effect of alcohol ingestion on driving ability: results of practical road tests and laboratory experiments. Quarterly Journal of Studies on Alcohol, 11, 1-30. Burns, M., & Moskowitz, H. (1977) Psychophysical tests for DWI arrest. Final Report, DOTHS-802-424, NHTSA. ' NHTSA. (1987) DWI Detection and Divided Attention Field Sobriety Testing. Final Report, DOT-HS-807-186. Rosenthal, R., &: Rosnow, R. L. (1991) Essentials of behavioral research methods and data analysis. (2nd ed.) New York: McGraw-Hill. Tharp, V., Burns, M., & Moskowitz, H. (1981) Development and field test of psychophysical tests for DWI arrests. Final Report, DOT-HS-805-864, NH'ISA.

Accepted May 23. 1994.

35

Marceline Burns declared not an Expert and the HGN can occur at low BAC levels such as .04 P. 8 and 9.

LEXSEE 42 P.3D 844 STATE OF NEW MEXICO, Plaintiff-Appellant, v. JAMES LASWORTH, Defendant-Appellee. Docket No. 21,513 COURT OF APPEALS OF NEW MEXICO 131 N.M. 739; 2002 NMCA 29; 42 P.3d 844; 2001 N.M. App. LEXIS 129; 41 N.M. St. B. Bull. 42 December 7, 2001, Filed

SUBSEQUENT HISTORY: As Corrected April 8, 2002. As Corrected March 23, 2002. Certiorari Denied, No. 27,333, March 5, 2002. PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY. Michael E. Vigil, District Judge. DISPOSITION: Affirmed. CASE SUMMARY:

PROCEDURAL POSTURE: After a conviction by a magistrate, the defendant was given a trial de novo on the charge of driving under the influence in the Santa Fe County District Court (New Mexico). The court ruled that the state could not use the arresting officer's testimony regarding horizontal gaze nystagmus (HGN). The state appealed. OVERVIEW: The state argued that the trial court erred by denying the testimony of its

HGN expert, who testified that she was qualified as an expert in HGN in 26 states, because the expert was qualified to establish the validity of the HGN test and lay a foundation for the arresting officer's testimony that the defendant was under the influence at the time the HGN was administered. The court of appeals disagreed. The state erroneously assumed that the HGN test measured driving impairment. However, the objective of the test was to discriminate between drivers above and below the statutory blood alcohol content (BAC) limit, not to measure driving impairment, and the link between BAC and driving impairment was a separate issue, involving entirely different research methods. Thus, in order to lay a foundation for the admission of the arresting officer's statement that the defendant was under the influence of alcohol, the state was required to establish two predicates. The expert was qualified to testify to the first predicate, but not the second. Therefore the trial court did not err 36

in denying the admission of the state's expert's testimony. OUTCOME: The judgment was affirmed. LexisNexis(R) Headnotes

Criminal Law & Procedure > Evidence > Scientific Evidence [HN1] Horizontal gaze nystagmus (HGN) test results may not be admitted unless the state, as the proponent of HGN evidence, has demonstrated that such evidence meets the evidentiary reliability of Alberico. Criminal Law & Procedure > Evidence > Scientific Evidence > Daubert Standard [HN2] Before scientific evidence may be admitted, the proponent must satisfy a trial court that the technique used to derive the evidence has scientific validity, there must be proof of the technique's ability to show what it purports to show. Criminal Law & Procedure > Evidence > Scientific Evidence [HN3] Scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. Criminal Law & Procedure > Evidence > Scientific Evidence > Daubert Standard [HN4] The horizontal gaze nystagmus (HGN) field sobriety test (FST) has not been scientifically validated as a direct measure of alcohol impairment. The sole purpose for which the HGN FST arguably has been scientifically validated is to discriminate between drivers above and below the statutory blood alcohol limit, which in New Mexico is 0.08 percent. Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence

Criminal Law & Procedure > Evidence > Scientific Evidence [HN5] The objective of the horizontal gaze nystagmus (HGN) test is to discriminate between drivers above and below the statutory blood alcohol limit (BAC), not to measure driving impairment, and the link between BAC and driving impairment is a separate issue, involving entirely different research methods. Thus, in order to lay a foundation for the admission of the arresting officer's statement that a defendant was under the influence of alcohol or another central nervous system depressant, the State is required to establish two predicates: first, that the HGN is a scientifically valid means of discriminating between BAC's below 0.08 percent and those at or above 0.08 percent; and, second, that a BAC at or above 0.08 percent correlates with diminishment of the defendant's mental or physical driving skills. Criminal Law & Procedure > Evidence > Expert Testimony [HN6] In the context of expert testimony, the choice of which data to examine may require subject matter expertise in addition to knowledge of applied statistics. Criminal Law & Procedure > Evidence > Scientific Evidence > Daubert Standard [HN7] In the context of the admission of scientific evidence, a district court is required to conduct a searching, de novo inquiry into the validity of the proffered evidence, not to merely rubber stamp the decisions of courts in other jurisdictions that have admitted such evidence. It is the district court, not the expert, however qualified, who makes the ultimate determination of the validity of scientific evidence.

37

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence [HN8] See N.M. Stat. Ann. § 66-8-107A (1978, as amended through 1993). Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence [HN9] See N.M. Stat. Ann. § 66-8-110A (1978, as amended through 1993). COUNSEL: Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellant. Todd Hotchkiss, Roderick T. Frechette II, Frechette & Associates, P.C., Albuquerque, NM, for Appellee. JUDGES: A. JOSEPH ALARID, Judge. WE CONCUR: JONATHAN B. SUTIN, Judge, IRA ROBINSON, Judge. OPINIONBY: A. JOSEPH ALARID OPINION: [***844] [*739] ALARID, Judge. INTRODUCTION [**1] In State v. Torres, 1999 NMSC 10, P30, 127 N.M. 20, 976 P.2d 20, the Supreme Court held that the results of a horizontal gaze nystagmus (HGN) field sobriety test constitute scientific evidence within the meaning of Rule 11-702 NMRA 2001 when offered by the State against a defendant in a prosecution for driving while intoxicated; and, that [HN1] HGN test results may not be admitted unless the State, as the proponent of HGN evidence, has demonstrated that such evidence meets the evidentiary reliability standard

adopted by the Supreme Court in State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). In the present case, the district court, applying Torres, ruled that the results of Defendant's HGN test were inadmissible at trial. We affirm.

Overview of HGN and Standardized Field Sobriety Tests

[**2] HGN has come to be a principal component of standardized field sobriety tests [***845] [*740] (FSTs) as the result of a series of studies conducted under the auspices of the National Highway Traffic Safety Administration (NHTSA). In the mid1970's, Drs. Marcelline Burns and Herbert Moskowitz, doing business as the Southern California Research Institute, were awarded a contract by the NHTSA to conduct laboratory studies of various FSTs then in use around the country, with the goal of identifying the most effective battery of FSTs. The results of the research were published in 1977. M. Burns and H. Moskowitz, Psychological Tests for DWI Arrest, Final Report, No. DOT-HS802-424 (1977) (hereafter the 1977 Report). The 1977 Report recommended a battery of three FSTs: one-leg-stand, walkand-turn, and HGN. According to Dr. Burns and Dr. Moskowitz, the combined scores from the proposed three-test FST battery correctly discriminated between subjects having blood alcohol concentrations (BAC's) below 0.10 percent and those having BAC's at or above 0.10 percent eighty-three percent of the time. [**3] NHTSA sponsored a further study to standardize administration and scoring of the FSTs. The results of this second study were published in 1981. V. Tharp, M. 38

Burns, and H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrest, No. DOT-HS-805-864 (1981). The researchers reported that in the laboratory, police officers trained in the administration of the three-test battery were able to discriminate between subjects whose BAC was below 0.10 percent and those whose BAC was at or above this level eighty-one percent of the time. [**4] NHTSA funded a third study. The purpose of this study was to evaluate the effectiveness of the three-test battery in the field. Researchers concluded that a properly-administered HGN test would correctly identify a suspect as having a BAC at or above 0.10 percent seventyseven percent of the time, and that when the HGN and walk-and-turn results were combined using a decision matrix, the two tests would correctly identify a suspect as having a BAC at or greater than 0.10 percent eighty percent of the time. T. Anderson, R. Schweitz, and M. Snyder, Field Evaluation of a Behavioral Test Battery for DWI, No. DOT-HS-806-475 (1983). [**5] There have been further studies validating the NHTSA standardized FST battery, including studies in Colorado, M. Burns and E. Anderson, A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery, Final Report, submitted to Colorado Department of Transportation (1995) (hereafter 1995 Colorado Report); Florida, M. Burns and T. Dioquino, A Florida Validation Study of the Standardized Field Sobriety Test (S.F.S.T.) Battery, (1998); and California, J. Stuster and M. Burns, Validation of the Standardized Field Sobriety Test Battery at BAC's Below 0.10 Percent, Final Report, submitted to U.S. Dept. of Transportation, NHTSA (1998) (hereafter 1998 Final

Report). In the 1998 Final Report, researchers concluded that the NHTSA's three-test FST battery enabled officers in the field to accurately estimate whether a motorist's BAC was at or above 0.08 percent ninety-one percent of the time. [**6] The 1995 Colorado Report describes the HGN FST as follows: The basic requirements for examination of the eyes for HGN are only that the officer must be able to see the subject's eyes and the subject must be able to see the stimulus object. No special apparatus or conditions are necessary. The officer instructs the subject to hold his/her head still and to follow the movement of a stimulus (e.g., a pen, penlight, or finger) with the eyes. The officer observes each of the subject's eyes for three signs: (1) the ability of the eye to smoothly track or pursue the stimulus as it moves left and right in the subject's visual field. A lack of smooth pursuit movement is consistent with the presence of a D-I-P [depressants-inhalantsphencyclidine] drug. (2) the presence and the amplitude of a jerking movement, which may occur when the eyes have deviated as far as possible to the extreme side of the visual field.

39

A distinct jerking is consistent with the presence of a D-I-P drug. [***846] [*741] (3) the angle of the eye's gaze when the first nystagmus jerking occurs; i.e., the angle of onset. Jerking which occurs prior to a 45 degree angle of gaze and persists when the stimulus is held in one position indicates the presence of a D-I-P drug. 1995 Colorado Report, supra, at 20.

Procedural History [**7] Defendant was arrested on September 10, 1998. The arresting officer had observed Defendant traveling in the wrong direction on the on ramp leading from State Road 599 to northbound I-25. After stopping Defendant's car, the arresting officer noted that Defendant "displayed signs of impairment." The arresting officer administered a "Standardized Field Sobriety Test." Based on the results of this test, the officer arrested Defendant. Defendant submitted to a breath alcohol test, which indicated a BAC of 0.09 percent. Defendant was convicted in Santa Fe County Magistrate Court of driving while under the influence in violation of NMSA 1978, § 66-8-102. [**8] Defendant appealed to the First Judicial District Court. The district court conducted a trial de novo on February 4, and March 3, 2000. The case was tried to the court without a jury. At the beginning of the trial, the prosecutor explained to the district court that the State intended to present an expert who would validate the

HGN FST under the standards of Alberico and Torres. However, due to scheduling problems, the expert could not appear until later in the trial. The district court proposed that the State go ahead and present its lay HGN evidence, with the understanding that the court would disregard this testimony if the State's expert was unable to establish a foundation for its admission. During the first day of trial, the district court heard testimony from the arresting officer, who recounted his training and experience in administering the NHTSA's standardized FSTs. The arresting officer provided a detailed description of the FSTs he administered to Defendant. The officer testified that on the HGN FST, Defendant demonstrated a "lack of smooth pursuit" in both eyes, "distinct nystagmus at maximum deviation" in both eyes, and an "angle of onset of nystagmus" of approximately forty degrees. The officer testified that he observed six cues, the maximum possible under the standardized HGN FST. The officer stated that, based on his training and experience, the presence of all six HGN cues indicated Defendant was "under the influence" of alcohol or another central nervous system depressant, an inhalant, or PCP at the time of the test. After the first day of testimony, the trial was continued. [**9] On March 3, 2000, the trial resumed. The State tendered Marcelline Burns, Ph.D., as its expert on HGN testing. Dr. Burns' twenty-one page curriculum vitae was marked and admitted. Dr. Burns holds a bachelor's degree, a master's degree, and a doctoral degree in psychology. Dr. Burns recounted her role in the development and validation of the NHTSA's standardized FST battery. Dr. Burns testified that she has qualified as an expert witness on the HGN FST in at least twenty-six states.

40

[**10] Defense counsel objected to the State's proffer of Dr. Burns as an expert. In response to voir dire by defense counsel, Dr. Burns conceded that she is not a medical doctor, and, that as a psychologist, she is primarily interested in behavorial measurements. The district court explained that it understood Torres to require that HGN evidence must be both scientifically valid and scientifically reliable. The district court believed that Dr. Burns was qualified to speak to the second, "reliability," prong. However, in the district court's view, Dr. Burns was not qualified by herself to establish the first, "validity," prong. In the district court's view, the State should have called an expert in a discipline such as biology or medicine, rather than a behavioral psychologist, to explain how the amount of alcohol a person consumes correlates with HGN. The district court expressed its concern that without such testimony, it could not rule out the possibility that the correlation between BAC and HGN claimed by Dr. Burns was a "coincidence." Because the State could satisfy only the second prong of the Torres test, the district court ruled that the arresting officer's testimony [***847] [*742] regarding the results of the HGN FST were inadmissible. [**11] At the State's request, the district court continued the trial to enable the State to appeal the ruling excluding evidence of the results of the HGN FST. We have jurisdiction pursuant to NMSA 1978, § 393-3(B)(2) (1972). DISCUSSION [**12] [HN2] Before scientific evidence may be admitted, the proponent must satisfy the trial court that the technique used to derive the evidence has scientific validity--there must be "proof of the

technique's ability to show what it purports to show." Alberico, 116 N.M. at 167, 861 P.2d at 203. We begin by deciding what it is that the HGN FST "purports to show." [**13] Dr. Burns, the State's expert, is a leading--perhaps the foremost--proponent of the HGN FST. Dr. Burns was involved in the original NHTSA-funded research, as well as many of the subsequent studies of the NHTSA's standardized FST battery. Although the original goal of the NHTSA research was "to develop more sensitive tests that would provide more reliable evidence of impairment," 1977 Report, Technical Summary, that approach was abandoned during the development of the NHTSA standardized FST battery. Dr. Burns testified that the HGN FST was validated by comparing arrest/release decisions based upon the results of the NHTSA's standardized FSTs against the subjects' BAC's as subsequently measured by breath alcohol or blood alcohol tests. n1 n1 We realize that during its redirect examination of Dr. Burns, the State inserted the phrase "horizontal gaze nystagmus as a measure of impairment" into a series of questions, and, that in responding to these questions, Dr. Burns did not take issue with the State's characterization of HGN "as a measure of impairment." In our view, any inference that may be drawn from Dr. Burns' failure to correct the State's characterization of HGN as a "measure of impairment" does not overcome her testimony on direct examination and her unequivocal published statements that the HGN FST has been validated as a means of discriminating between BAC's below a given level and BAC's at or 41

above that level, and not as a direct measure of impairment. [**14] In the 1998 Final Report, Dr. Burns explained how the limitations imposed by this methodology have been misunderstood: The only appropriate criterion measure to assess the accuracy of SFSTs is BAC. Measures of impairment are irrelevant because performance of the SFSTs must be correlated with BAC level, rather than driving performance. BAC provides an objective and reliable measure that states have recognized as presumptive and/or per se evidence of impairment, depending on the statute. .... Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess "face validity," that is, tests that appear to be related to actual driving tasks. Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities in driving tasks; that is, the tests seem to be relevant "on the face of it." Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of

driving a motor vehicle. The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment. Driving a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities. It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions were recognized by the developers of NHTSA's SFST battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indications of a driver's BAC, rather than indications of driving impairment. The link between BAC and driving impairment is a separate issue, involving entirely different research methods. [***848] [*743] 1998 Final Report, supra, at 10, 27-28 (emphasis added). n2 n2 The 1998 Final Study is available online at the National Highway Traffic Safety Administration's website: http://www.nhtsa.dot.gov/people/injur y/alcohol/limit.08/!SFSTREP.pdf.

[**15] [HN3] "Scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 42

591, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). As Dr. Burns has observed, "the objective of the test is to discriminate between drivers above and below the statutory BAC limit, not to measure driving impairment." 1998 Final Report, supra, at 28 (emphasis added). Based on Dr. Burns' testimony and our own review of the 1995 Colorado Report, as well as her published statements, we conclude that [HN4] the HGN FST has not been scientifically validated as a direct measure of impairment. We conclude that the sole purpose for which the HGN FST arguably has been scientifically validated is to discriminate between drivers above and below the statutory BAC limit, which in New Mexico is 0.08 percent. n3 n3 The standardized FSTs initially were validated as means of discriminating between BAC's at or above 0.10 and those below this level. In the 1998 Final Report, Dr. Burns concluded that the standardized FST battery was a valid and "extremely accurate" means of discriminating between BAC's above and below the 0.08 percent level and she suggested that the FST battery can be used to accurately discriminate BAC's above or below 0.04 percent. 1998 Final Report, supra, at 26.

between drivers above and below the statutory BAC limit, not to measure driving impairment," and "the link between BAC and driving impairment is a separate issue, involving entirely different research methods." Thus, in order to lay a foundation for the admission of the arresting officer's statement that Defendant was under the influence of alcohol or another central nervous system depressant, the State was required to establish two predicates: first, that the HGN FST is a scientifically valid means of discriminating between BAC's below 0.08 percent and those at or above 0.08 percent; and, second, that a BAC at or above 0.08 percent correlates with diminishment of Defendant's mental or physical driving skills. Dr. Burns appears to have been called to testify as to the first predicate. [**17] The State argues that the district court abused its discretion by ruling that Dr. Burns was not able to explain how alcohol caused the eye movements observed by the arresting officer. At trial, Dr. Burns testified that "alcohol is a central nervous system depressant and as it depresses the brain, which is the part that we are concerned about here, it affects the reticular formation, the brainstem, and that disrupts or causes a dysfunction in the muscle and neural control of the eyes." Dr. Burns conceded that she herself had not conducted studies or experiments to determine how and why alcohol causes HGN and that her understanding of the mechanisms that produce HGN was based upon her review of the published results of studies by other researchers. However, Dr. Burns also testified that her knowledge of the physiological causes of HGN was sufficient to allow her to design and carry out studies correlating the HGN FST with BAC. 43

[**16] The State argues that Dr. Burns was qualified to establish the validity of the HGN FST and lay a foundation for the arresting officer's testimony that Defendant was "under the influence" at the time the FST was administered. In making this argument, the State erroneously assumes that the HGN FST measures impairment. However, as noted above, [HN5] "the objective of the test is to discriminate

[**18] Some minimal level of knowledge of the underlying substantive area of science is necessary even to design a statistical study. See 1 David L. Faigman, et al., Modern Scientific Evidence: The Law and Science of Expert Testimony § 3-1.2 (1997) (hereafter Modern Scientific Evidence) (noting [HN6] "choice of which data to examine" may require subject matter expertise in addition to knowledge of applied statistics). Dr. Burns testified that her knowledge of the physiological basis of HGN was sufficient for her to design and carry out studies of the HGN FST. There was no evidence refuting Dr. Burns' testimony on this point. Dr. Burns' understanding of the causes of HGN therefore appears to have been sufficient for her to design and conduct studies to verify whether the HGN FST can be used to discriminate between BAC below and above a given level. [***849] [**19] [*744] Evidence that Dr. Burns was qualified in the abstract to design and conduct studies of HGN does not mean that she in fact designed and conducted scientifically sound studies. See Modern Scientific Evidence, supra, § 1-3.3.3 (observing that "even the highest quality [scientific] journals sometimes publish work that is later found to be wrong"). The district court appears to have been concerned that without a more detailed understanding of the causes of HGN, the court could not be sure the results obtained by Dr. Burns and other HGN researchers were not a "coincidence." [**20] We share the district court's concern. In the 1995 Colorado study, 234 motorists who were stopped subsequently submitted to a breath- or blood-test, thereby enabling the researchers to

compare the subject's measured BAC with the arrest-release decision dictated by the FSTs. 1995 Colorado Report at 13. At the time of the Colorado study, a BAC of 0.05 percent or greater provided grounds for arrest under Colorado law. Id. at v. The mean BAC of the 234 motorists was 0.152 percent, or over three times the statutory limit under Colorado law. Id. at 16. Of the 234 motorists, 184 had BAC's at or above the statutory limit of 0.05 percent, id. at 14, table 4; and, of these 184 motorists, 133 had BAC's at or above 0.10, or over twice the statutory limit, id. at 17. The driving behaviors that led the officers participating in the study to stop a motorist in the first place clearly were selecting out of the general driving population a highly intoxicated group of test subjects. If the officers had simply arrested every one of the 234 motorists, without even administering the FSTs, seventy-nine percent (184 of 234) of their arrest-release decisions would have been correct. In the actual study, the researchers concluded that arrest-release decisions based on the FSTs were correct eighty-six percent of the time. Id. at 14. Thus, administration of the FSTs did not dramatically improve the overall percentage of correct decisions. Further, among motorists whose BAC's fell in the range between 0.03 to 0.07 percent (0.05 percent plus or minus 0.02 percent), arrest-release decisions based on the FSTs were correct only 57 percent (21 of 37) of the time. 1995 Colorado Report, Appendix IV. We share the district court's concern that some coincidental factor, such as the driving behaviors that led an officer to stop a motorist in the first place, were largely responsible for the claimed ability of the FSTs to discriminate between motorists above and below the statutory BAC. See Modern Scientific Evidence, supra, § 3-5.2.3 (discussing "confounding variable"--factor omitted from the 44

researcher's analysis, which in fact drives correlation noted by the researcher). [**21] Further, Dr. Burns stated in the 1995 Colorado Report that "it is possible that lack of smooth pursuit and distinct nystagmus at maximum deviation occur at low BAC's with some subjects but not with others, or on some occasions but not others. . . . Research has not yet clearly defined HGN signs for low BAC's." 1995 Colorado Report at 21. Dr. Burns noted that there is evidence that "smooth pursuit movement breaks down at BAC's as low as 0.04%" and that "controlled laboratory research at low BAC's is needed to examine the three HGN signs." Id. at 20. These statements suggest that the HGN FST may be prone to false positives under New Mexico law. See NMSA 1978, § 66-8-110(B)(1) (1978, as amended through 1993) (establishing presumption that motorist whose BAC is 0.05 percent or less is not under the influence of intoxicating liquor). We think that it would have been reasonable for the district court to want to know more about the effects of relatively low alcohol levels on the physiological mechanisms that produce HGN. [**22] Lastly, we note that although the HGN FST was originally validated as a means of discriminating between BAC's below 0.10 percent and those at or above 0.10 percent, in the 1995 Colorado Report the FST battery was used to discriminate between BAC's below 0.05 percent and those at or above 0.05 percent. Further, in the 1995 Colorado Validation Study, Dr. Burns suggested that the standardized FSTs also are effective when the criterion for arrest is 0.08 percent. 1995 Colorado Report at 15. The district court could reasonably have wanted to hear a more

detailed scientific explanation of how the physiological cues that make up the HGN FST vary with a subject's BAC in such a remarkable manner that the HGN FST can provide statistically valid and reliable evidence at varying criterion BAC's. [**23] [***850] [*745] [HN7] Torres required the district court to conduct a searching, de novo inquiry into the validity of the HGN FST, not to merely rubber stamp the decisions of courts in other jurisdictions that have admitted such evidence. It is the district court, not the expert, however qualified, who makes the ultimate determination of the validity of scientific evidence. The district court was not required to accede to the State's takeit-or-leave-it proffer of Dr. Burns, and it did not abuse its discretion in requiring the State to produce an expert who could explain in greater detail than Dr. Burns the physiological and pharmacological basis of the six cues that make up the HGN FST. [**24] In its reply brief, the State argues that the district court misapplied Torres by reading Torres to require testimony from a medical doctor, and that it was on this narrow basis that the district court rejected Dr. Burns. Although some of the district court's remarks could be understood as a request for testimony from a medical doctor, in other places the district court expressed its concern more broadly, using the terms "biological or physical or medical evidence," "some basis biologically or medically," "the biological, medical explanation." Our review of the entire transcript of Defendant's trial satisfies us that the district court remained open to any witness who was capable of providing biological, physical, or medical evidence about the relationship of HGN to a subject's BAC.

45

[**25] We note an alternate statutory rationale for upholding the exclusion of HGN evidence. This alternate ground follows from our recognition that the HGN FST has been validated, if at all, solely as a means of discriminating between BAC's at or above a given level, and BAC's below that level. [**26] NMSA 1978, § 66-8-107(A) (1978, as amended through 1993) [HN8] provides that "any person who operates a motor vehicle within this state shall be deemed to have given consent . . . to chemical tests of his breath or blood or both, approved by the scientific laboratory division of the department of health." (Emphasis added). NMSA 1978, § 66-8-110(A) (1978, as amended through 1993), [HN9] provides that "the results of a test performed pursuant to the Implied Consent Act [66-8105 to 66-8-112 NMSA 1978] may be introduced into evidence in any civil action or criminal action arising out of the acts alleged to have been committed by the person tested for driving a motor vehicle while under the influence of intoxicating liquor or drugs." (Emphasis added). Lastly, Section 66-8-110(E) provides that "the determination of alcohol concentration shall be based on the grams of alcohol in one hundred milliliters of blood or the grams of alcohol in two hundred ten liters of breath." (Emphasis added). [**27] The statutes cited in the preceding paragraph were enacted by Chapter 35 of 1978 N.M. Laws, which created the Motor Vehicle Code. In 1978 when the Motor Vehicle Code was enacted, Dr. Burns and her colleagues had only recently published the first laboratory study advocating the adoption of HGN as a FST. In view of the experimental status of the HGN FST in 1978, it is not surprising that the Legislature did not include HGN as a

method of proving a suspect's BAC. Although the HGN FST has come to be widely known and widely used subsequent to the enactment of the Motor Vehicle Code in 1978, the Legislature has not amended the Motor Vehicle Code to authorize a conviction n4 based upon the results of non-chemical BAC tests such as the HGN FST. n4 Nothing in our discussion of the Motor Vehicle Code should be understood as foreclosing the use of the results of an HGN FST to establish probable cause for arresting a motorist or to establish "reasonable grounds" for administering a chemical BAC test. See § 66-8-107 (1978, as amended through 1993).

CONCLUSION [**28] The decision of the trial court excluding the results of Defendant's horizontal gaze nystagmus field sobriety test is affirmed. [**29] IT IS SO ORDERED. A. JOSEPH ALARID, Judge WE CONCUR: JONATHAN B. SUTIN, Judge IRA ROBINSON, Judge

46

(This

case in page outlines many of the different causes of HGN (see last two pages of case)

Court of Special Appeals of Maryland. William Leroy SCHULTZ, Sr. v. STATE of Maryland. No. 1399, Sept. Term, 1994. Aug. 31, 1995.

Conviction for speeding affirmed; convictions reversed.

other

West Headnotes [1] Automobiles 411 48Ak411 Most Cited Cases [1] Automobiles 422.1 48Ak422.1 Most Cited Cases Horizontal gaze nystagmus test for determining whether person has consumed alcohol, based upon determination whether subject is showing rapid involuntary oscillation of eyeballs, is scientific test, requiring laying of foundation as to its acceptability or taking of judicial notice of reliability, rather than field test admissible without requiring foundation. [2] Criminal Law 304(1) 110k304(1) Most Cited Cases Courts of state are to take judicial notice of fact that results of horizontal gaze nystagmus (HGN) test, to determine presence of rapid involuntary oscillation of eyeballs, are admissible to indicate presence of alcohol in defendant, if test is properly given by qualified officer. [3] Criminal Law 478(1) 110k478(1) Most Cited Cases Prosecution had failed to make necessary showing that police officer administering horizontal gaze nystagmus (HGN) test, involving observation of rapid involuntary oscillation of eyeballs, to motorist suspected of having consumed alcohol, was qualified to administer test; while officer testified to having received training at police academy five years previously 47

Defendant was convicted of driving under influence, speeding, and driving with alcohol in blood in violation of courtordered alcohol restriction on driver's license, in the Circuit Court, Washington County, Daniel W. Moylan, J. Defendant appealed. The Court of Special Appeals, Cathell, J., held that: (1) horizontal gaze nystagmus test (HGN), involving observation of whether eyeballs of suspect are rapidly oscillating, was a scientific test requiring laying foundation as to its acceptability or judicial notice that it was reliable, rather than field test which could be admitted without foundation; (2) court would take judicial notice of reliability of HGN test, leaving only competency of tester and adequacy of test procedures open to challenge; (3) in present case prosecution had not made required showing that officer was qualified to administer test, or that proper procedures had been followed; and (4) error was not harmless, as there had been no chemical testing of defendant or physical evidence sufficient to establish he had consumed alcohol.

and having been instructed on how to do test, and having administered field sobriety tests approximately 100 times, there was no indication of nature of training, whether it was proper, whether it was supervised by certified instructors or whether officer himself had been certified to administer test. [4] Automobiles 422.1 48Ak422.1 Most Cited Cases Horizontal gaze nystagmus (HGN) test for presence of alcohol in motorist, involving observation of whether motorist displayed rapid involuntary oscillation of eyeballs, had not been properly administered; there were no indications that testing officer had checked for tracking of eyeballs and different size pupils, and other factors designed to reduce chances that nystagmus resulted from nonalcoholic causes, which by one count numbered 38. 1169.1(7) [5] Criminal Law 110k1169.1(7) Most Cited Cases Convictions of motorist for traveling under influence, and driving with alcohol in his blood in violation of court-ordered alcohol restriction on driver's license, were required to be reversed; no chemical testing of motorist's alcohol level had been conducted, horizontal gaze nystagmus (HGN) test, involving observation whether there was rapid involuntary oscillation of motorist's eyeballs, had not been shown to be administered by properly trained officer using correct techniques, and other indicator of presence of alcohol, odor of alcohol in vehicle when motorist was stopped, could have come from another source. **61 *147 John R. Salvatore, Hagerstown, for appellant.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and M. Kenneth Long, Jr., State's Atty. for Washington County, Hagerstown, on the brief), for appellee.

Submitted before WILNER, C.J., and CATHELL and SALMON, JJ.

CATHELL, Judge. Appellant, William Leroy Schultz Sr., was convicted by a jury in the Circuit Court for Washington County of driving under the influence, speeding, and driving with alcohol in his blood in violation of a courtordered alcohol restriction on his driver's license. He was sentenced to nine months detention on the driving under the influence conviction and was fined for the other convictions. Appellant raises the following questions on appeal: I. Did the court err in admitting the officer's testimony about appellant's performance of the horizontal gaze nystagmus test? II. Did the court improperly influence the jury with its remarks and questions of the officer? FACTS Officer Timothy Rossiter stopped appellant on March 1, 1994, about 11:30 p.m. Upon approaching appellant's vehicle and speaking with appellant, Officer Rossiter detected, among other things, the smell of alcohol and proceeded to administer several field sobriety tests: when asked to recite the alphabet, appellant jumbled several letters after Q; when asked to stand on one foot for thirty seconds, he had to use his other foot to maintain his 48

balance within fifteen seconds; and, when asked to walk in a straight line heel to toe, he experienced *148 some difficulty doing so. The officer also performed the horizontal gaze nystagmus (HGN) test. [FN1] As the officer explained at trial:

haul empty alcoholic beverage 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 *149 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 **62 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 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 49

FN1. Nystagmus is defined as "a rapid involuntary oscillation of the eyeballs." Webster's Ninth New Collegiate Dictionary 813 (1989). You measure each eye separately and one point is assessed as the object is passed in front of the eye, if it doesn't move smoothly, that's a point. Once you get to the 45 degree angle, if there's a quiver in the eye, that's a point; if there's not, then there's no point, and when you get to the furthest point, again, if there's a moving or a jumping of the eyeball, that's a point. If there's no movement, then there isn't. According to the officer, a person can receive a score as high as six on the test, and the higher the score, the more likely it is that the individual is intoxicated. The officer stated that a score of more than four indicates that an individual is intoxicated; a score of four indicates a borderline case. The officer then stated that appellant received a score of five or six on the test. No chemical tests were performed. Officer Rossiter was the only witness that testified for the State. Appellant testified that he had had nothing to drink that day. On that day, he had flown home from Florida. He testified that he had stopped off at a tavern he owns and operates on his way home for about one-half hour, but had nothing to drink. He indicated that his truck might have exhibited the smell of alcohol because he sometimes uses it to

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,*150 § 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-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, 391 A.2d 364 (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 *151 satisfactory proof of its reliability and its acceptance in the relevant 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 **63 not laid. We shall hereafter hold that the results of HGN testing are admissible in 50

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 alcoholrelated 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. [FN2] Thus, in both the states holding that the HGN test is a scientific test (the majority) and those states holding that it is only a field test, it is, nevertheless, admissible so long as certain predicates are satisfied.

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 *152 reservations about police officers conducting and interpreting a medical/scientific test. Id., 426 S.E.2d 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 [1] 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, 391 A.2d 364, that this test was based on well-recognized scientific principles so as 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, 185 Md. 437, 440, 45 A.2d 85 (1945); 3 Wigmore, Evidence 51

FN2. 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.

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, 310 S.C. 311, 426 S.E.2d 766 (1993). There, the trial court, according to

§ 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 [45 A.2d 85]. 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 *153 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 **64 acceptance by recognized experts that a particular process has achieved. People v. Law, 40 Cal.App.3d 69, 75, 114 Cal.Rptr. 708, 711 (1974). 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 decisionmaking 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) [ [FN3]]:

FN3. The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, 2793, 125 L.Ed.2d 469 (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 [391 A.2d 364] (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[s], Inc., 509 U.S. 579, 113 S.Ct. 2786 [125 L.Ed.2d 469] (1993). Thus, the Frye/Reed standard is still the standard utilized in Maryland to determine the admissibility of scientific evidence. People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 882 P.2d 321 (1994), also involved the admissibility of HGN testing and the continuing validity in California of the Frye standard after Daubert v. Merrell Dow Pharmaceuticals, Inc. 52

That Court, like Maryland's Court of Appeals in Reed, retained the Frye standard. *154 "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 wellrecognized 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, 391 A.2d 364. 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 threeprong 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 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, 251 Kan. 313, 836 P.2d 1110, 1117 (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 *155 Crampton v. State, 71 Md.App. 375, 525 A.2d 1087 (1987), aff'd, 314 Md. 265, 550 A.2d 693 (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 **65 on one leg, heel 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 abovecited 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 policeofficer, 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. See People v. Ramirez, 199 Colo. 367, 609 P.2d 616, 620 (1980). 53

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, 525 A.2d 1087. 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 *156 referred to this test as a "standard field sobriety test[ ]" in Pennsylvania v. Muniz, 496 U.S. 582, 585, 110 S.Ct. 2638, 2641, 110 L.Ed.2d 528 (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. [FN4] The HGN test, however, does not test a suspect's 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.

was noted as 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 Otolaryngal Supp. 330: 15-29, 1975 (identifies studies by Barany (1911), Barany & 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.

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 *157 community, not the ability to measure the physiological 54

FN4. 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

change. [FN5] The principle underlying **66 the HGN test, i.e., that it is an accurate measure of the intoxication of a suspect, is a scientific principle.

FN5. Another belief as to truthtelling was that one's mouth 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.

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 upon an assertion of scientific legitimacy rather than a basis of common knowledge. Different rules therefore apply to determine its admissibility.[ [FN6]]

FN6. 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.

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, 149 Ariz. 269, 718 P.2d 171 (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

Id., 149 Ariz. at 276, 718 P.2d at 178. In Superior Court, a scientific foundation, which satisfied the Frye standard, was *158 presented at trial. Thus, the court there was able to determine that the test conducted did satisfy Frye principles. [FN7] 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 aconviction 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:

FN7. 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. 55

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 more accurate chemical testing devices are readily available. Id., 149 Ariz. at 279, 718 P.2d at 181 (citation omitted). [FN8]

FN8. In State v. City Court, 165 Ariz. 514, 519, 799 P.2d 855, 860 (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."

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 Silverhill, 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 *159 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**67 was not harmless); People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 882 P.2d 321 (1994); Foster v. State, 204 Ga.App. 632, 420 S.E.2d 78 (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, 145 Ill.App.3d 996, 99 Ill.Dec. 808, 496 N.E.2d 501 (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, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222, cert. denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992).); State v. Witte, supra; State v. Armstrong, 561 So.2d 883, 887 (La.App. 2 Cir.), 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.2d 523 (Mo.App.1989); State v. Clark, 234 Mont. 222, 762 P.2d 853 (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, 224 Neb. 47, 395 N.W.2d 551 (1986); State v. Reed, 83 Or.App. 451, 56

732 P.2d 66, 68 (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, 367 Pa.Super. 359, 532 A.2d 1186, 1189 (1987) ("Results of the HGN test are ... scientific evidence based on the scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test."); *160Emerson v. State, 880 S.W.2d 759 (Tex.Cr.App. en banc), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (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, 72 Wash.App. 677, 865 P.2d 564, 568 (Div.3), petition for review denied, 124 Wash.2d 1006, 877 P.2d 1288 (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, 179 W.Va. 194, 366 S.E.2d 642 (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, 30 Ohio App.3d 80, 506 N.E.2d 285, 286 (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. See also State v. Bresson, 51 Ohio St.3d 123, 554 N.E.2d 1330, 1334-36 (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. [FN9]

FN9. See also Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993) (Frye standard not used, holding that HGN test was not novel because of its use by law enforcement officials for over thirtyfive years). Whitson, however, should be compared to People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 882 P.2d 321 (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, 310 S.C. 311, 426 57

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

(1989).

**68 *161 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 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,[ [FN10]] which does not require the use of a *162 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

FN10. 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).

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 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. 58

Id., 34 Cal.Rptr.2d at 671-74, 882 P.2d 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.] *163 Id., 34 Cal.Rptr.2d at 676, 882 P.2d at 334. The court, quoting from People v. Williams, 3 Cal.App.4th 1326, 5 Cal.Rptr.2d 130 (1992), then noted: **69 "... 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, 130 Cal.Rptr. 144, 549 P.2d 1240, is the California equivalent of Maryland's Reed v. State, supra, 283 Md. 374, 391 A.2d 364.) (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 science, mathematics and the like." Commonwealth v. Miller, 367 Pa.Super. 359, 532 A.2d 1186, 1188 (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." *164Id., 532 A.2d at 1189. In Commonwealth v. Apollo, 412 Pa.Super. 453, 603 A.2d 1023, alloc. denied, 531 Pa. 650, 613 A.2d 556 (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 59

"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., 603 A.2d at 1027. See also Commonwealth v. Moore, 430 Pa.Super. 575, 635 A.2d 625 (1993). We join the states of Arizona, Alabama, California, Georgia, Illinois, Kansas, Louisiana, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oregon, Pennsylvania, Texas, Washington, and West Virginia [FN11] 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.

standard. We take judicial notice of the reliability and acceptance of the *165 HGN test. We perceive that the studies, scientific articles, foreign cases, and other literature on the subject that we have reviewed reveal that **70 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 feel the focus should now be. We address judicial notice first, and then the matter of the officer's qualifications, both generally and specifically. Judicial Notice [2] In Faya v. Almaraz, 329 Md. 435, 44447, 620 A.2d 327 (1993), the Court of Appeals held: [I]n order to place a complaint in context, we may take judicial notice of additional facts that are either matters of common knowledge or capable of certain verification. Included in the latter category are facts "capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute." In the medical context we have relied, for example, on basic information about sexually transmitted diseases as found in medical journals and reports of the Centers for Disease Control. See B.N. v. K.K., 312 Md. 135, 139-40, 538 A.2d 1175 (1988) (genital herpes is a contagious, painful, and incurable disease, spread by sexual contact, that endangers public health). The Maryland Court of Special Appeals has relied on similar sources to assess the need for precautions against AIDS transmission.... 60

The American Bar FN11. 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.

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

Before examining the legal sufficiency of the appellants' complaints, therefore, we focus on several well-established and scientifically understood facts about AIDS and its transmission.... .... These characteristics of HIV and AIDS, which the lower court also recognized, are proper objects of judicial notice. We, therefore, reject the appellants' threshold contention that the court below ... erroneously adopted ... information *166 that [was] properly the subject of expert testimony, open to challenge at trial.... These facts derive from reputable scientific journals and institutions and are well-accepted within the medical community. [Citations and footnotes omitted.] See also B.N. v. K.K., 312 Md. 135, 13940, 538 A.2d 1175 (1988), taking judicial notice that "[g]enital herpes is ... contagious, painful, and incurable ... spread by sexual contact. It is an infectious disease that endangers public health." (Footnotes omitted.); Keene Corp. v. Hall, 96 Md.App. 644, 660, 626 A.2d 997, cert. granted, 332 Md. 741, 633 A.2d 102 (1993), an asbestos case, in which we held the Frye/Reed standard had not been met in respect to the test there at issue, but took "judicial notice that inanimate material and tissue from human beings have different properties." We took notice of certain medical and scientific facts in regard to the wearing of gloves by court personnel dealing with defendants believed to have AIDS in Wiggins v. State, 76 Md.App. 188, 198, 544 A.2d 8 (1988), rev'd on other grounds, 315 Md. 232, 554 A.2d 356 (1989), though we made no formal announcement that we were taking judicial notice of those scientific facts. Judge Getty for this Court, in one of the

first cases involving genetic marker blood testing, Haines v. Shanholtz, 57 Md.App. 92, 97-100, 468 A.2d 1365, cert. denied, 300 Md. 90, 475 A.2d 1201 (1984), discussed in depth Reed v. State, supra. He stated that unlike Frye, Reed has survived Daubert, supra. He noted that the issue in Reed (voice prints) was not, at the time of that case, generally accepted as scientifically reliable; "the Court of Appeals in Reed was dealing with an acknowledged division in the scientific community...." Id. at 98, 468 A.2d 1365. He further commented that the Court of Appeals, even in its Reed decision, recognized the feasibility of taking judicial notice of accepted scientific facts, noting: In Reed, (voice print), authored by Judge Eldridge, the Court stated that a trial court may take judicial notice of the reliability of a scientific technique if it is generally accepted in the scientific community. *167 Id. at 97, 468 A.2d 1365. The Reed Court had stated, "On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific **71 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." 283 Md. at 380, 391 A.2d 364. In Sharp v. Sharp, 58 Md.App. 386, 396, 473 A.2d 499 (1984), we noted: "Judicial notice of a fact is an acceptable substitute for formal proof of such fact, when formal proof is clearly unnecessary to enhance the accuracy of the fact-finding process." See also Mark Downs, Inc. v. McCormick Prop., 51 Md.App. 171, 187, 441 A.2d 1119 (1982) (assuming it proper to take judicial notice that tropical storm "David" was an "Act of God.") 61

Maryland Rule 5-201 continues the longstanding practice of allowing an appellate court to take judicial notice of adjudicative facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." In the case sub judice, the "fact" at issue is whether the HGN test is generally accepted in the scientific community as a reliable indicator of an increased blood alcohol content. There are a number of sources that may be consulted to determine that issue, including scientific journals and other such literature. Because the test is so frequently, even predominantly, used in a forensic setting, however, there is another, equally reliable, source--the holdings of other courts that have examined the question. It is not a precondition to taking judicial notice at the appellate level to "reinvent the wheel" in every case. If a sufficient number of courts have examined the relevant evidence presented on the issue in other cases and have concluded from that evidence that the test is, or is not, generally accepted in the scientific community, there is no reason why we have to insist that the same evidence be presented again in the case before us. We can draw our own conclusions from the collection of holdings of our sister (or brother) courts, *168 including those that have found a sufficient basis for taking judicial notice. In People v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222 (5 Dist.), cert. denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992), the court discussed those cases that had held that HGN testing was merely "field testing" and those that had held that it was scientific. (The trial court had not allowed the

evidence on the grounds that its prejudicial effect outweighed its probative value). The appellate court resolved the issue for the prosecution by, in effect, taking judicial notice of the reliability of the test. After discussing several of the cases from other states, emphasizing Superior Court, supra, and noting the reports of the United States Department of Transportation as cited in Bresson, supra, the Illinois Court held: Such factors in conjunction with the reasoning in State v. Superior Court, lead us to believe the HGN test meets the standards of admissibility under Frye and HGN test results may be admitted as evidence of intoxication as long as a proper foundation for admitting such evidence has been laid. A proper foundation should consist of describing the officer's education and experience in administering the test and showing that the procedure was properly administered. Id., 170 Ill.Dec. at 548, 592 N.E.2d at 1227. The Buening court did note that it was not accepting HGN testing to qualify the exact amount of alcohol (BAC) in a defendant's blood in the absence of a chemical analysis of blood, breath, or urine. Thus, it held that the results are admissible in regard to the presence of alcohol, generally, when chemical tests do not exist, and, additionally, when chemical tests do exist, to corroborate or attack that chemical analysis. The appellate court for the Fourth District of Illinois, in People v. Hood, 265 Ill.App.3d 232, 202 Ill.Dec. 618, 638 N.E.2d 264 (4 Dist.1994), adopted the Buening holding in applying that state's implied consent statute and took judicial notice of the reliability of the HGN test, primarily basing its holding on Buening: *169 As the fifth district determined the HGN test was sufficiently reliable to met 62

the Frye standard ... in criminal proceedings, we are persuaded it is sufficiently reliable to be admitted in implied-consent proceedings; thus, where evidence involving the HGN test is sought to be admitted in implied-consent proceedings, the State **72 need not call an expert witness to attest to its reliability. Id., 202 Ill.Dec. at 628, 638 N.E.2d at 274. In State v. Armstrong, 561 So.2d 883, 887 (La.App. 2 Cir.1990), writ denied, 568 So.2d 1077 (La.1990), the court essentially took judicial notice of the reliability and acceptance of the HGN test by adopting the Superior Court holding: We choose to follow the reasoning in State v. Superior Court, County of Cochise, supra, that the HGN test meets the standards of admissibility in Frye and, with a proper foundation, may be admitted as evidence of intoxication. We also follow the reasoning of ... Superior Court ... and its progeny, in finding that a proper foundation for admitting the test has been laid when a showing has been made that the officer ... was trained in the procedure, was certified in its administration and that the procedure was properly administered. [Emphasis added.] The Court of Criminal Appeals of Alabama in Malone v. City of Silverhill, supra, 575 So.2d 101, essentially took judicial notice of the reliability of HGN tests when it opined: "The fact that nystagmus can be caused by the consumption of alcohol is also accepted by the medical profession." Id. at 102. It continued: Its [the HGN test's] use became so widespread that the United States Department of Transportation outlined the appropriate procedures for

administering the test, in its National Highway Traffic Safety Administration Bulletin DOT HS 806 512. Id. at 103. Then, it opined that the Arizona Court in State v. Superior Court, supra, had held, "after extensive research ... there had been sufficient scrutiny of the effects of alcohol on nystagmus to permit a conclusion as the reliability of the HGN *170 test." Id. at 103. The Alabama court then held that "we are satisfied that the holding of the Arizona Supreme Court is a correct one. We, therefore, adopt this standard as our own." Thereafter, the Supreme Court of Alabama reversed the Court of Criminal Appeals of Alabama in Ex parte Malone, supra, 575 So.2d 106. It appears to have rejected the intermediate appellate court's ultimate holding that the error was harmless and accepted that court's second position that the trial court erred in permitting the officer to testify as to HGN testing without having laid a Frye foundation in the case. It did not address the intermediate court's apparent judicial notice and adoption of the Superior Court holding. In any event, the adoption language of the intermediate court remains hanging in legal limbo and, apparently, is inoperative in view of the higher court's resolution. In State v. Bresson, supra, 554 N.E.2d 1330, the Ohio Supreme Court took judicial notice of the reliability of HGN testing. An intermediate appellate court had reversed a trial court opinion on the basis that the trial court had permitted evidence of HGN testing without there having been any foundation laid as to its reliability. The Bresson court noted that Ohio does not apply the Frye standard and acknowledged that no foundation had been laid at trial. It 63

then opined that most of Ohio's intermediate appellate courts had allowed such evidence based only on an officer's testimony, on the grounds that HGN testing was merely another field test. The court then noted a split among other jurisdictions as to whether the test was a scientific test. Without deciding whether it was or was not a scientific test, and with no foundation having been laid in the case before it, the Ohio court, relying on the decisions of the courts of other states, and on its own intermediate appellate court, opined, at 554 N.E.2d at 1334: We find that the HGN test has been shown to be a reliable indicator of BAC levels. Accordingly, results of this test are admissible so long as the proper foundation has been shown both as to the officer's training and ability to administer the test and as to the actual technique used by the officer in administering the test. *171 The Supreme Court of Montana, applying its rules of evidence and discounting Frye, adopted the holdings of the appellate courts of Texas, Arizona, and Illinois in its case of State v. Clark, supra, 762 P.2d at 856. It opined that the "better approach is to admit all relevant scientific evidence in the same **73 manner as other expert testimony and allow its weight to be attacked by cross-examination...." It ruled that the "pivotal question now becomes one of proper foundation." Id. In Emerson v. State, supra, 880 S.W.2d 759, the en banc court took judicial notice of the reliability of the theory underlying HGN testing and of its technique as to indicate the general presence of alcohol but not as it related to specific BAC. The court rejected the State's assertion that HGN test results should be admitted merely as opinion evidence, stating: "[T]he

HGN test ... is based on a scientific theory." The court then held: Judicial Notice ... In the instant case, however, the trial court made no such inquiry concerning the admissibility of the HGN evidence.... Therefore, we now inquire into the reliability of the HGN test pursuant to the doctrine of judicial notice. We are authorized to take judicial notice of any scientific fact which "is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." McCormick on Evidence at § 330. The concept of judicial notice extends to scientific techniques and principals. Once a scientific principle is sufficiently established, a court may take judicial notice of the validity of that principle.... .... ... By examining scientific articles outside the record of the instant case, we can determine what course of action to take with regards to the reliability of the HGN test. *172 Id. at 764-65 (citations and footnote omitted). The court noted that HGN testing had, under various studies, [FN12] been found to be 77% accurate standing by itself, and when used with other field tests, as high as 88% accurate. It then noted that other jurisdictions had found the test sufficiently reliable, citing Superior Court, supra; Bresson, supra; Murphy, supra, and Clark, supra, before holding, at 768-69:

FN12. Accuracy has been determined by comparing the HGN testing results with subsequent verification through chemical testing or through testing persons with a 64

known blood alcohol content. Most studies, though varying slightly, result, generally, in accuracy levels of just under 80% if the HGN test is the only test administered. If combined with the other two tests in the NHTSA Standardized tests (walk and turn and balance), most studies indicate a reliability factor of between 85% to 90%. The various studies and articles we have reviewed include: Edward B. Tenney The Horizontal Gaze Nystagmus Test and the Admissibility of Scientific Evidence, 27 New Hampshire Bar Journal, 179 (Spring 1986) (Tenney noted that results from some agencies indicate a considerably higher reliability: Arlington County Police Force (345 arrests) 84%, Maryland State Police (451 arrests) 92%, North Carolina State Police (434 arrests) 91%); Theodore E. Anderson et al. Field Evaluation of a Behavioral Test Battery for DWI " NHTSA Report DOT HS-806-475 (1983) (HGN tests performed on 1,506 drivers stopped for DWI during a three-month period. HGN deemed 82% accurate when used by itself in predicting BAC over .10.) After consulting the literature ... and considering case law from other jurisdictions ... we conclude that the theory underlying the HGN test is sufficiently reliable.... The scientific materials addressing the issue have reached the uniform conclusion that the consumption of alcohol has a cognizable effect on human eye movement. We believe that the accuracy of those sources cannot be reasonably questioned.

Technique We also conclude that the technique employed in the HGN test, as designed and promoted by NHTSA, is reliable.... In this jurisdiction, officers who administer the HGN test receive standardized training in its administration.... The test procedures ... require an officer to screen for factors other than alcohol ... such as other *173 drugs, neurological disorders, and brain damage, prior to administering the HGN test.... We take judicial notice of the reliability of both the theory ... and its technique. We are unable to conclude, however, that the HGN technique is a sufficiently reliable indicator of precise BAC [blood alcohol content]. [Citation and footnote omitted.] **74 See also Anderson v. State, 866 S.W.2d 685 (Tex.App.--Houston [1st Dist.] 1993); City of Fargo v. McLaughlin, 512 N.W.2d 700, 706 (N.D.1994) (the North Dakota Supreme Court took judicial notice that intoxicated individuals exhibit nystagmus). 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 (though we reverse in respect to the qualifications of the officer), 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. We do so considering the great weight of scientific support in the literature and in light of its 65

adoption in most other jurisdictions that have addressed the issue. 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-by- case 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 the 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 *174 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. As we have attempted to show, the great weight of scientific literature supports its reliability and the majority of jurisdictions around the country have declared HGN testing to be reliable. We take judicial notice that the results of HGN testing, if the test is properly given by a qualified officer, are admissible to indicate the presence of alcohol in a defendant. Officer Qualifications [3] Before we discuss case law from other jurisdictions that refers to officer qualifications to administer the HGN test and to present testimony relative thereto, and the training, qualifications, and certification programs available in Maryland, we shall briefly describe the

evidence presented at trial in respect to Officer Rossiter's qualifications. Officer Rossiter testified that he had been a Hagerstown police officer for just under five years and that he was a duly qualified and certified radar operator using properly calibrated and certified radar equipment. He additionally testified: A. I asked him to exit the vehicle to perform some field sobriety tests.... Q. Have you receive training in how to conduct field sobriety tests? A. Yes. Q. Where ...? A. Western Maryland Police Academy. Q. Five years ago? A. Yes, sir. Q.... [H]ave you had occasion to use field sobriety tests on other occasions? A. Yes, sir. .... A. Close to 100 [times]. *175 Q.... [W]hat is the purpose ... in giving somebody field sobriety tests? A. To check the subject's coordination and see if they can do two things at once.... .... A. See if the person is able to pay attention.... Q ... [W]hat [referring to the case sub judice ] was the first test that you gave ...? A.... [T]he horizontal gaze nystagmus. .... It tests the eyes, the muscles in the eyes as to how lax or smooth that the eyes can **75 follow an object as it's passed in front of them. Q. Would you demonstrate how that test is performed? MR. SALVATORE [appellant's trial counsel]. Your Honor, I'm going to object. That test has never been proven to be reliable in the State of Maryland. 66

THE COURT: Overruled. The weight to be given to the test will be for the jury. .... A.... The point of it is, with the alcohol, it's a depressant and relaxes the muscles.... MR. SALVATORE: Objection, unless he's qualified to say that. [Emphasis added.] THE COURT: I'll overrule the objection. You may proceed. Officer Rossiter then described the tests. Later, he was asked: Q. And was he able to pass the test? A. No, he did not. MR. SALVATORE: Objection as to passing or failing. THE COURT: Overruled. When the officer began to describe the six-point scoring system for the test, appellant's counsel again objected: "Objection.... He's reached a conclusion and hasn't given any of *176 the underlying basis for reaching that conclusion." The court overruled the objection. As the discussion of "points" continued, appellant again, unsuccessfully, objected as to a lack of foundation. Later, Rossiter's direct examination continued: Q. And who assigns the points? A.... [T]he Alcohol Influence Board.[ [FN13]]

Q. Do you receive instruction on how to score this test? A. I was instructed in the Western Maryland Police Academy how to do it. I'm not a certified instructor to do it. Q. But have you been taught how to perform the test? A. Yes. Appellant, in his brief, noted that he had objected to the officer's lack of qualifications, arguing: It must also be shown that the test was given in precisely the prescribed manner and that the tester was qualified to both administer the test and interpret the results. Officer Rossiter did none of these and should not have been permitted to testify regarding the Horizonal Gaze Nystagmus Test. Foreign Case Law The court in Emerson, supra, noted that Texas police officers must be certified in order to administer the test and must "complete an NHTSA-approved, Statesponsored training course...." 880 S.W.2d at 766. The Texas course consists of forty hours (twenty-four hours of classroom instruction and sixteen hours of field evaluation). During the sixteen-*177 hour field evaluation, the officer must complete and document thirty-five HGN test cases. Upon completion of the thirty-five HGN test cases, the results are submitted for the approval of the Texas Engineering Extension Service, Law Enforcement Training Division. If the results are satisfactory, the officer is then given a "proficiency certification" by the Texas Commission on Law Enforcement Officer Standards and Education. The Supreme Court of Iowa, in State v. Murphy, supra, 451 N.W.2d at 156, 67

FN13. The precise function of the Alcohol Influence Board, if it exists, is unclear. Q.... Somebody out there assigns how you're supposed to score the test? A. Right. MR. SALVATORE: Objection. It's leading. THE COURT: Overruled.

recognized that Iowa's rules of evidence did not require strict adherence to a Frye standard, only that the reliability of the evidence be established. It noted that reliability was a necessary prerequisite for admission " 'because unreliable evidence cannot assist a trier of fact.' " Id. at 15657. While joining the Ohio courts in holding that HGN testing is no more scientific than general field sobriety testing, the court emphasized the training**76 of the police officer there involved and his testimony. The officer was an eleven-year veteran who had participated in specialized training in the administration of the HGN test. He was also certified by the Iowa Law Enforcement Academy as an instructor. The court concluded "that testimony by a properly trained police officer with respect to the administration and results of the horizontal gaze nystagmus test is admissible without need for further scientific evidence." Id. at 158. In State v. City Court, 165 Ariz. 514, 519, 799 P.2d 855, 860 (1990), the Arizona Supreme Court noted that it had previously decided that the HGN test was generally accepted in the relevant scientific community and, in light of that, opined: The proper foundation for such testimony, ... includes a description of the officer's training, education, and experience in administering the test and a showing that the test was administered properly. The Court, in Clark, supra, opined: Deputy Irby testified he was certified through the Montana Law Enforcement Academy, completing the required number of training hours. Further, Deputy Irby testified he *178 administered the test in the proper manner. No other foundation need be shown.

762 P.2d at 857. The qualifications of the officer were directly challenged in State v. Garrett, 119 Idaho 878, 811 P.2d 488, 491 (1991), where the court first held that HGN testing satisfies the Frye standard, noting that courts in Alaska, Arizona, Iowa, Louisiana, Montana, Ohio, and Texas had accepted it. The Garrett court then held that the expertise of the testing officer was first an issue for the trial court to resolve, noting that the officers there had been sufficiently qualified: Fost [the officer] is attached to the Select Traffic Enforcement Team.... Fost is also an instructor in the use of field sobriety tests. Fost was trained by members of the Idaho State Police, and he also attended seminars conducted by Dr. Marcelline Burns of the Southern California Research Institute (SCRI). Dr. Burns worked with the NHTSA to develop reliable field sobriety tests, and was one of the designers of the test.... Even though the testimony elicited from Fost concerning the correlation between nystagmus and blood alcohol content was improper, the court nevertheless properly admitted Fost's expert testimony on the administration of the HGN test. Id., 811 P.2d at 492-93 (citation omitted). The Armstrong court held that a proper foundation had been laid for the introduction of the HGN test results in light of the officer's experience, training, and certification in respect to the test, and given that the evidence reflected that the test had been properly administered. See also State v. Regan, 601 So.2d 5 (La.App. 3d Cir.1992), writ denied, 610 So.2d 81516 (1993). In State v. Garris, 603 So.2d 277 (La.App. 2d Cir.), writ denied, 607 68

So.2d 564 (La.1992), the court concluded that a sufficient foundation had been laid in that there was evidence that the officer had received HGN training, both in the Air Force, as a narcotics patrolman, and as a state trooper, that he had conducted HGN tests under supervision during the training, and that the officer had conducted the test *179 properly. The court held that he had presented sufficient evidence of his qualifications, even though the officer never specifically stated that he was "certified." Id. at 281. In State v. Breitung, 623 So.2d 23 (La.App. 1 Cir.), writ denied, 626 So.2d 1168 (La.1993), the evidence indicated that the officer had been trained in administering the HGN test; he had attended a two-week course that included actual practice tests on subjects and had been certified. The officer had administered the test to numerous other suspects and there was evidence that the tests had been properly administered. The court held that a proper foundation had been laid. In Bresson, supra, the court noted that the trooper had testified that he had received five days of training regarding the HGN test and described the methods he used in testing and evaluating appellee's performance.... His testimony ... corresponds to the testing methods devised by the United States Department of Transportation. The court held: [T]he only requirement prior to admission is the officer's knowledge of the test, his **77 training, and his ability to interpret his observations. Id., 554 N.E.2d at 1334-36. In the case sub judice, the record is, at best, minimal in regard to the level of Officer Rossiter's training. He was asked if he had received training in the general

area of "field sobriety testing." He responded that he had trained at the Western Maryland Police Academy five years prior to testing appellant, but did not specify whether that training included testing for HGN. Again, he testified generally that he had performed field tests approximately 100 times but did not specify what experience he had had with HGN. Later, he responded that he "was instructed in the Western Maryland Police Academy how to do it. I am not a certified instructor to do it." We have no way of knowing from the record the extent of the officer's actual HGN training, whether it was proper, whether it was supervised by certified instructors, or even *180 whether Officer Rossiter was certified to administer the test. We hold, therefore, that a sufficient foundation as to the officer's qualifications to administer the test was not submitted below. His testimony should not have been allowed over the objection of appellant. In allowing this testimony, the trial court erred. [4] We also note that, while the officer discussed how the actual test was performed, other than noting that appellant did not wear contacts, the officer's testimony is silent as to whether he checked for tracking and different size pupils, etc., designed to reduce the chances that nystagmus from nonalcoholic causes might be confused with alcohol-related nystagmus. The trial court thus also erred in admitting the testimony in that there was insufficient evidence that the proper precautions were taken or the proper considerations were accounted for prior to the administration of the test itself. This is especially important given the many other possible causes of HGN contained in the mass of literature we have reviewed. 69

The cases and literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of nystagmus. They include: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, *181 PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use. See State v. Witte, supra; State v. Clark, supra; State v. Superior Court, supra; Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney's Textbook of Medicine § § 84.63 and 84.64 (1990), and other cases and treatises hereinbefore mentioned.

[5] No chemical test was administered to appellant in the case sub judice. Evidence was proffered by appellant as to injuries that may have affected his ability to perform certain of the other field tests, and there was also evidence that the odor of alcohol smelled by Officer Rossiter may have come from a source other than appellant. Accordingly, we are unable to say that the error was harmless. [FN14]

FN14. We note that, after it had returned to deliberate, the jury sent three questions to the court: 1. Was the Defendant asked to take a Breathalizer Test? 2. If the Defendant refused what is the action taken? 3. Or if he took the test what [were] the results[?] The questions were not answered and the jury was directed not to speculate.

**78 We reverse appellant's convictions on the charges of driving under the influence of alcohol and driving with alcohol in his blood in violation of a court ordered alcohol restriction on his driver's license. We affirm his other conviction for speeding, as it is not otherwise challenged on appeal. Because appellant's second issue as to the trial court's questions relates only to the matter of HGN testing and we are reversing his alcohol-related convictions, we shall not address that question. JUDGMENT OF CONVICTION FOR SPEEDING AFFIRMED; ALL OTHER JUDGMENTS OF CONVICTION *182 REVERSED; COSTS TO BE PAID 20% 70

BY APPELLANT AND WASHINGTON COUNTY, [FN15]

80% BY APPELLEE.

FN15. The NHTSA provides a manual (written in large part by 1st Sgt. Tower of the Maryland State Police) entitled "DWI Detection and Standardized Field Sobriety Testing Student Manual" that is apparently utilized by the Maryland State Police in its training programs. It contains much information in respect to training, administering the HGN test and protocols designed to assure that the presence of HGN is not caused by factors other than the presence of alcohol. Satisfactory completion of the program results in certification and the program is open to officers of other agencies. 664 A.2d 60, 106 Md.App. 145 END OF DOCUMENT

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