Ballard v. State

• Decision Date: 03 April 1998
• Docket Number: No. A-5679,A-5679
• Citation: 955 P.2d 931
• Parties: David G. BALLARD, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 931

955 P.2d 931

David G. BALLARD, Appellant, v. STATE of Alaska, Appellee.

No. A-5679.

Court of Appeals of Alaska.

April 3, 1998.

Paul E. Malin, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for Appellant.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before BRYNER, C.J., MANNHEIMER, J., and WOLVERTON, District Court Judge. ^*

MANNHEIMER, Judge.

This appeal requires us to decide whether the horizontal gaze nystagmus test, or "HGN" test, satisfies the standard for admissibility of scientific evidence established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and reaffirmed as the governing standard in Alaska in Contreras v. State, 718 P.2d 129, 134-36 (Alaska 1986).

In the HGN test, the subject is asked to cover one eye and then use the remaining eye to track the lateral progress of an object (usually a pen) as the officer moves the object at eye-level across the subject's field of vision. As the moving object travels toward the outside of the subject's vision, the officer watches the subject's eye for "nystagmus"--an involuntary jerking movement of the eyeball. If the person's eyeball exhibits nystagmus, and especially if the nystagmus occurs before the moving object has traveled 45 degrees from the center of the person's vision, this is taken as an indication that the person is intoxicated. See the description of the HGN test contained in State v. Grier, 791 P.2d 627, 629 (Alaska App.1990).

As we explain in more detail below, we conclude that the horizontal gaze nystagmus test is premised on generally accepted scientific theory. Although there is genuine dispute as to whether a person's precise level of intoxication or precise blood-alcohol level can be ascertained by his or her performance on the HGN test, there is no dispute that alcohol consumption causes observable nystagmus. We conclude that, if a person demonstrates nystagmus during the HGN test, this is a reasonable indication that the person may have consumed alcohol and is potentially intoxicated. Therefore, with certain qualifications explained below, we hold that evidence of a person's performance on the HGN test is admissible under the Frye-Contreras rule.

How This Case Arose

In the early morning of March 1, 1994, Alaska State Trooper Lee Robert Oly was patrolling the Glenn Highway, accompanied by his supervisor, Trooper Oscar Siegfried. ¹ Oly observed an oncoming Toyota pull off to the other side of the highway. Intending to check on the welfare of the Toyota's driver, Oly turned his patrol car around and pulled up behind the stopped Toyota. Ballard, who was driving the Toyota, got out of his vehicle. Ballard had to steady himself against the Toyota, and he staggered as he walked toward Oly. When Ballard stopped walking, he continued to have difficulty maintaining his balance; he swayed from side to side. Oly smelled the odor of alcoholic beverages on Ballard's breath, and he saw that Ballard appeared to have difficulty focusing his eyes (which were bloodshot). Based on these observations, Oly decided to administer field sobriety tests to Ballard.

Ballard performed several field sobriety tests; one of these was the horizontal gaze nystagmus test. After Ballard failed all of the field sobriety tests, Oly arrested him and charged him with driving while intoxicated.

Ballard's Pre-Trial Objection to the HGN Evidence and the Testimony Presented at the Frye Hearing

Before trial, Ballard asked the district court to exclude all evidence of his performance on the HGN test, contending that the HGN test did not meet the Frye standard for admissibility. District Court Judge Natalie K. Finn conducted an extensive hearing into the scientific foundations of the HGN test, as well as its reliability and validity. ²

At this hearing, the State presented an instructional videotape produced by the National Highway Transportation Safety Administration (NHTSA), demonstrating its recommended procedure for administering a three-part HGN test. The State also called Trooper Tim Schoenberg, who demonstrated the three parts of the test in the courtroom: asking the subject to track a moving object, asking him to focus on the object at the limits of his peripheral vision, and asking him to focus on the object at an angle of 45 degrees from the center of his field of vision. Schoenberg not only described how the HGN test is to be administered, but he also described how the HGN test is taught to officers.

Trooper Oly, the officer who arrested Ballard, then testified concerning his own training in the three-part HGN test. Oly told the court that his training included administering the HGN test to nineteen test subjects. Like Schoenberg, Oly demonstrated the three portions of the HGN test on a volunteer in the courtroom.

(One of Ballard's expert witnesses, Dr. Ronald Nowaczyk, later critiqued Oly's performance. Nowaczyk noted that Oly had performed the three portions of the HGN test on one of the subject's eyes, then had performed the three portions of the test on the subject's other eye; the NHTSA recommends performing each portion of the test on each eye before moving to the next portion of the test. However, Dr. Nowaczyk did not suggest that this variation would affect the test results.)

The State's third witness was Marcelline Burns, a research psychologist who was one of the scientists who conducted two seminal studies of the HGN test under the auspices of the National Highway Traffic Safety Administration. These two studies, conducted between 1975 and 1981, were admitted as exhibits at the Frye hearing.

Burns testified that, within the scientific community, it was well-accepted that alcohol intoxication causes nystagmus. Nystagmus is not, however, an unerring indicator of alcohol intoxication; it can also be caused by other drugs, by brain trauma, or by certain diseases. Moreover, approximately half of the population will exhibit an eyeball tremor when fixing their eyes on an object at the limit of their peripheral vision. For this reason, of the three parts of the HGN test conducted on Ballard, checking for nystagmus at maximum deviation of the eyes was the least informative. Burns conceded that only "distinct nystagmus" during this portion of the test would be a meaningful indicator of intoxication.

Although Burns declared that the HGN test is a "highly sensitive" measure of whether a person is intoxicated, she also stated that the HGN test was never designed to be used alone, but rather in conjunction with other field sobriety tests such as the walk-and-turn test and the one-leg-stand test. Burns added, however, that among such a battery of tests, the HGN test has distinctive value because nystagmus is an involuntary response. An alcoholic can learn to control or compensate for the effects of intoxication on balance, physical agility, and verbal acuity, but it is all but impossible to disguise nystagmus.

Burns told the district court that, for purposes of assessing the reliability and validity of the HGN test, the relevant community of researchers and practitioners consisted of scientists concerned with alcohol and drug research, scientists concerned with traffic safety, and law enforcement professionals. Among this community, Burns testified, the battery of three field sobriety tests that includes walk-and-turn, one-leg-stand, and HGN is generally accepted as an accurate indicator of a person's intoxication.

Ballard presented two expert witnesses at the hearing. The first was Dr. Craig Smith, a neuro-ophthalmologist. Smith conceded that the scientific community generally accepts the fact that alcohol intoxication affects people's ability to move their eyes, and that intoxication will cause nystagmus. However, Smith pointed out that nystagmus is also caused by diseases of the brain, by damage to or disease of the eye muscles, and by various medications and drugs. According to Smith, nystagmus can also appear naturally in about two to five percent of the population.

Smith conceded that alcohol-produced nystagmus is observable by police officers in the field, but he strenuously questioned whether precise observations of nystagmus could be made outside of a controlled laboratory setting. In particular, Smith asserted that it is "impossible" for a police officer conducting a traffic stop to detect whether a driver's eyes are smoothly pursuing a moving object. Smith pointed out that the lighting at the scene of a traffic stop can be inadequate to observe the subject's eyes. He also pointed out that, if the driver is balancing unsteadily, the driver's eyes may not move smoothly when tracking an object because the driver's head is itself moving. Smith also pointed out the possibilities that the officer may not move the target object smoothly, or that the driver is myopic and therefore not able to see the object clearly. Smith told the court that he had ridden along with police officers some ten to twelve times, and he had observed that the HGN test was very difficult to perform during a roadside traffic stop.

Smith also testified that, even when nystagmus is visible, it is quite difficult to determine whether the angle of onset is less than 45 degrees unless one is armed with a protractor. Smith, like Burns, testified that the occurrence of nystagmus at maximum deviation is not a good indicator of intoxication because some 50 to 60 percent of the normal population displays such nystagmus. However, on cross-examination by the court, Smith admitted that the nystagmus manifested by half the population at the edges of their vision was a "tiny" nystagmus, readily distinguishable from the "distinct" nystagmus that occurs in people who have blood-alcohol levels exceeding .10 percent.

Ballard's second expert witness was Dr. Ronald Nowaczyk, a psychology professor who specializes in behavioral...