State v. Gleason, 19388

• Citation: 844 P.2d 691,123 Idaho 62
• Decision Date: 22 December 1992
• Docket Number: No. 19388,19388
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Danny R. GLEASON, Defendant-Appellant. Coeur D'Alene, October 1992 Term
• Court: United States State Supreme Court of Idaho

Page 691

844 P.2d 691

123 Idaho 62

STATE of Idaho, Plaintiff-Respondent, v. Danny R. GLEASON, Defendant-Appellant.

No. 19388.

Supreme Court of Idaho,

Coeur D'Alene, October 1992 Term.

Dec. 22, 1992.

[123 Idaho 63] Frederick G. Loats, Coeur d'Alene, for defendant-appellant.

Larry EchoHawk, Atty. Gen. and Michael J. Kane, Chief, Criminal Div., argued, Boise, for plaintiff-respondent.

McDEVITT, Justice.

STATEMENT OF THE CASE

Defendant was arrested and charged by a Uniform Traffic Citation with having "operated a motor vehicle while under the influence of alcohol and/or with a Blood Alcohol Content of .10% or above" in violation of I.C. § 18-8004, on August 29, 1988. Defendant pled "not guilty" and a trial was held before a jury on June 15, 1989.

In the early morning hours of August 29, 1988, Officer Alex Carrington noticed a white Thunderbird travelling south on Highway 41 that appeared to be weaving in its lane. Officer Carrington followed the vehicle for approximately eleven miles and radioed for help from the county. Officer Carrington testified that he could see the car clearly the entire time he followed it and that there were no other cars on the road. He also testified that he observed the car meander back and forth several times between the curb and center line. Shortly after receiving the radio call, Deputy Wolfinger of the County Sheriff's Office At trial, the court allowed a tape recording of the subsequent interchange between the defendant Gleason, driver of the white Thunderbird, and Deputy Wolfinger, up to the moment of defendant Gleason's arrest for driving under the influence. Deputy Wolfinger's testimony and arrest report also recited the same sequence of events. When Deputy Wolfinger first contacted Gleason, he noticed a moderate odor of alcohol on Gleason's breath and that Gleason's eyes were watery and bloodshot. Moreover, the deputy noticed a plastic cup on the transmission hump containing a liquid later verified as alcohol. Deputy Wolfinger requested Gleason to step from the vehicle and perform a series of field sobriety tests. Deputy Wolfinger has an Associate of Science Degree in Law Enforcement, has received training by experienced field officers, and has attended two training seminars on improving recognition of intoxicated persons and administration of the tests. In addition, Wolfinger has performed the field sobriety tests over 200 times in the past five years. Every DUI arrest he has made based upon these tests was verified by an Intoximeter 3000 Blood Alcohol Content ("BAC") test.

[123 Idaho 64] pulled in between the white Thunderbird and Officer Carrington's marked police car. Deputy Wolfinger followed the car onto a main thoroughfare, observing the vehicle drift and jerk back at least three times, at which point he activated his lights and pulled the vehicle to the side of the road.

Deputy Wolfinger performed five tests on Gleason: the horizontal gaze nystagmus ("HGN") test, one-foot balance test, alphabet test, finger counting test, and hand-slap dexterity test. Gleason performed very poorly on each test. Gleason exhibited the onset of nystagmus prior to 45 degrees and could not maintain maximum deviation, he could not stand on one foot for more than 10 seconds, he could only recite the alphabet to "O", he could not touch and count his own fingers in the proper order, even after several explanations and demonstrations by the deputy, and he could not keep the simple hand-slapping rhythm. Based on Gleason's performance, Deputy Wolfinger was of the opinion that Gleason was under the influence of alcohol, and arrested and charged Gleason accordingly.

Appellant Gleason objected at trial to the admission of evidence concerning the HGN test based on lack of foundation. After a brief debate out of the presence of the jury, the trial court found that the foundation for the admissibility of the HGN test was satisfied by Deputy Wolfinger's testimony of past testing experience and independent verification of his accuracy. The court allowed Deputy Wolfinger to testify that he administered the test, to give his opinion based on his observations in administering the test, and to state that nystagmus, or eye-jerking, prior to 45 degrees is a "strong indicator that he's under the influence of alcohol." The court struck the word "strong". On cross, appellant delved even further into the controversial quagmire of the HGN test, and failed to object when he evoked the response from Deputy Wolfinger that nystagmus prior to 45 degrees "is a good indicator of alcohol content above a .10 percent."

In addition to Deputy Wolfinger's testimony, the State offered the testimonies of Officer Carrington and Chaplain Greg Linnebach, who was in the marked sheriff's car with Wolfinger. The two testified that, based on their own training and experience in the administration of field sobriety tests and their personal observations of Gleason's erratic driving pattern and uncoordinated mannerisms, they each formed the opinion that Gleason was intoxicated. Specifically, Gleason swerved in his lane several times and had somewhat slurred speech, the smell of alcohol was strong on his breath, and his movements seemed slow and deliberate. The prosecution presented evidence to show that defendant was driving under the influence, but failed to present any evidence that defendant had a BAC over .10 percent. Therefore, upon motion of the defendant, the court struck the second part of the pleadings relating to BAC levels.

Gleason had two friends testify that, subsequent to drinking with Gleason at a bar in Rathdrum, they pursued Gleason for a few miles on I-90 and never saw anything At the close of defendant's case, the court instructed the jury on the term "under the influence" as follows:

"out-of-the-ordinary" with his driving and that he was not intoxicated. One of the friends, a former police officer, stated that he would not have let Gleason drive if he had thought he was under the influence of alcohol.

You are instructed that to constitute the crime of driving while under the influence of alcohol, it is not necessary to show how much or the type of alcoholic beverages that were consumed. It is necessary to show that the driver had consumed sufficient alcoholic beverages to influence or affect his judgment or ability to drive a motor vehicle.

The jury found defendant guilty of driving under the influence and judgment and sentence were entered June 29, 1989. The defendant thereafter appealed to the district court. The district court affirmed the judgment and sentence, by written memorandum filed May 30, 1991. The issues on appeal are

I. Whether the trial court erred in admitting testimony concerning the horizontal gaze nystagmus test performed on appellant.

II. Whether the jury was properly instructed on the elements of the crime of driving under the influence.

STANDARD OF REVIEW

With respect to the admission of evidence, the trial court has broad discretion and its judgment in the fact finding role will only be disturbed on appeal when there has been a clear abuse of discretion. State v. Crea, 119 Idaho 352, 806 P.2d 445 (1991); State v. Giles, 115 Idaho 984, 772 P.2d 191 (1989). On the issue of the jury instruction, we review the same to determine whether it charges the jury with all matters necessary for their information with respect to the nature and elements of the crime charged. State v. Beason, 95 Idaho 267, 275, 506 P.2d 1340, 1348 (1973). The question of whether the jury was properly instructed is a question of law over which we exercise free review. State v. Roll, 118 Idaho 936, 938, 801 P.2d 1287, 1289 (Ct.App.1990).

I. ADMISSIBILITY OF THE HGN-RELATED TESTIMONY

In State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991), this Court recognized the admissibility of HGN-related testimony. State v. Garrett is a plurality opinion. It is authoritative on the issue of the scientific reliability of HGN test evidence, however it is not authority for the appropriate test against which such scientific reliability is to be measured. In Garrett, Justice Bistline developed a foundational test for the prosecution to satisfy in order to admit HGN evidence. First the prosecution must establish that the HGN test is independently reliable under the Frye standard (generally accepted theory in the scientific community that persons who are intoxicated exhibit nystagmus), and second that the officer is competent and reliable enough to introduce HGN evidence and testify that nystagmus may be an indication of intoxication. Garrett, 119 Idaho at 882, 811 P.2d at 492. Chief Justice Bakes concurred, while Justice McDevitt concurred in the result only. Justice Boyle specially concurred, rejecting the use of the Frye standard as the measure of scientific reliability. Id. at 883, 811 P.2d 488. Justice Johnson penned a dissent in which he objected to the use of the Frye standard, advocating a standard of independent reliability, and found the trial court's use of HGN test results as indicative of a particular BAC level, to be prejudicial error. Id. at 884, 811 P.2d 488. This Court reaffirms that the appropriate test for measuring the scientific reliability of evidence is I.R.E. 702. ¹ Garrett allows the use of HGN test evidence only in conjunction with evidence from other field sobriety tests, and permits the arresting officer to testify only that nystagmus may be an indicator of intoxication, not that it is conclusive evidence. Garrett limits the scope of the admissibility of HGN-related evidence, forbidding its use to establish or infer any particular correlative BAC level, because nystagmus does stem from causes other than the ingestion of alcohol.

The trial court in this case did not venture beyond the permissive bounds of Garrett when it allowed Deputy Wolfinger to testify that based on Gleason's performance on the HGN and other tests, Deputy Wolfinger was of the opinion that Gleason was intoxicated. It is true...