People v. Joehnk

• Court: California Court of Appeals
• Writing for the Court: BENKE
• Citation: People v. Joehnk, 35 Cal.App.4th 1488, 42 Cal.Rptr.2d 6 (Cal. App. 1995)
• Decision Date: 19 June 1995
• Docket Number: No. D022743,D022743
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alexander Rutan JOEHNK, Defendant and Appellant.

Page 6

42 Cal.Rptr.2d 6

35 Cal.App.4th 1488

The PEOPLE, Plaintiff and Respondent, v. Alexander Rutan JOEHNK, Defendant and Appellant.

No. D022743.

Court of Appeal, Fourth District, Division 1, California.

June 19, 1995.

Francis J. Bardsley, Public Defender, County of San Diego, Jeffrey E. Thoma, Deputy Public Defender, for defendant and appellant.

John W. Witt, City Atty., Susan M. Heath, Sr. Chief Deputy City Atty., and Annie Tomasik Sahhar, Deputy City Atty., for plaintiff and respondent.

BENKE, Acting Presiding Justice.

Defendant and Appellant Alexander Rutan Joehnk was convicted of driving under the influence of an alcoholic beverage (VEH.CODE, § 23152¹, subd. (a)), and of driving with a blood alcohol level of 0.08 or higher (§ 23152, subd. (b)). He appeals, arguing the trial court erred in allowing a police officer to use findings from horizontal gaze nystagmus (HGN) testing as a basis for his opinion that appellant was driving under the influence of alcohol. We conclude HGN testing admissible for that purpose and affirm.

FACTS

On August 24, 1993, appellant was stopped by San Diego Police Officer Christopher Brush for driving with a defective brake light. On contacting appellant the officer smelled alcohol on his breath, noticed his eyes were watery and bloodshot, his pupils dilated and slow to react to light, his speech slurred, his gait unsteady and his clothing dirty.

The officer performed an HGN test on appellant. The test requires the subject follow a horizontally moving object, such as a pen, held close to the eyes. The officer noticed appellant's eyes did not smoothly follow the object, there was a moderate onset of nystagmus, that is, a spasmodic motion of the eyeball at the extreme deviation of the subject's horizontal gaze and "bouncing" of the eyeball prior to it reaching a gaze angle of 45 degrees. Based on the officer's training, such findings, taken with other indications, suggested appellant was under the influence of alcohol.

The officer administered additional field sobriety tests. Appellant passed some, failed some and had mixed results on others. Based on all his observations, Officer Brush concluded appellant was driving under the influence of alcohol and placed him under arrest. A blood test indicated appellant's blood alcohol level was .11.

At trial, criminalist Jim Stam testified HGN testing is a reliable indicator of alcohol impairment, that while a blood alcohol level cannot be accurately estimated based on the test, its results, taken with other factors, can indicate a suspect was driving under the influence of alcohol.

DISCUSSION

Appellant argues the use of HGN testing is not generally accepted in the relevant scientific community as reliable and thus its results could not be used by Officer Brush as a basis for his opinion concerning appellant's intoxication. He further argues, assuming HGN testing is generally accepted in the relevant scientific community, a police officer is not qualified to testify concerning the results of the test. Additionally, appellant argues the test in this case was not properly administered and on that basis its results should not have been admitted. (See People v. Leahy (1994) 8 Cal.4th 587, 591, 594-610, 34 Cal.Rptr.2d 663, 882 P.2d 321 (Leahy ); People v. Kelly (1976) 17 Cal.3d 24, 30-32, 130 Cal.Rptr. 144, 549 P.2d 1240 (Kelly ).)

A. Horizontal Gaze Nystagmus and Intoxication

"Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. [Citation.] An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. [Citation.]" (People v. Ojeda (1990) 225 Cal.App.3d 404, 406, 275 Cal.Rptr. 472.) The theory supporting HGN testing is that intoxicated persons exhibit HGN and that a field test conducted by a police officer can identify the condition. (State v. Superior Court (1986) 149 Ariz. 269, 718 P.2d 171, 181 (Blake ); City of Fargo v. McLaughlin (N.D.1994) 512 N.W.2d 700, 706; see also dissenting opinion of Baxter, J., Leahy, supra, 8 Cal.4th at pp. 622-633, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

1. Test of Admissibility

In Leahy our Supreme Court concluded the results of an HGN test are admissible only if the technique and the scientific basis for it satisfy the requirements of Kelly, supra, 17 Cal.3d at page 30, 130 Cal.Rptr. 144, 549 P.2d 1240. (Leahy, supra, 8 Cal.4th at pp. 591-592, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

To satisfy Kelly, new forms of scientifically based evidence must satisfy a three-part test. "First, the party offering the evidence must show that the technique is ' "sufficiently established to have gained general acceptance in the particular field in which it belongs." ' [Citation.] Second, the proponent of the evidence must establish that 'the witness furnishing such testimony' is 'properly qualified as an expert to give {such} an opinion....' [Citation.] Third, the proponent must demonstrate that 'correct scientific procedures were used in the particular case.' [Citations.]" (People v. Diaz (1992) 3 Cal.4th 495, 526, 11 Cal.Rptr.2d 353, 834 P.2d 1171.)

"Review of a trial court's decision finding that a new scientific procedure has been ' " 'sufficiently established to have gained general acceptance in the particular field in which it belongs' " ' (italics omitted) and therefore that it is admissible in a criminal trial is a 'mixed question of law and fact subject to limited de novo review.' " [Citation.]

"The appellate court reviews 'the trial court's determination with deference to any and all supportable findings of "historical" fact or credibility, and then decide[s] as a matter of law, based on those assumptions' not ' "whether [the technique] is reliable as a matter of 'scientific fact,' but simply whether it is generally accepted as reliable by the relevant scientific community." [Citations.]' [Citation.]

"In conducting the review, the appellate court primarily relies on the record below [citations] but it may also consider out-of-state opinions and scientific literature bearing on the question whether the scientific technique at issue has gained acceptance in the scientific community. [Citations.]" (People v. Marlow (1995) 34 Cal.App.4th 460, 493, 41 Cal.Rptr.2d 5.)

2. HGN Evidence

In its motion seeking admission of HGN test results as a basis for Officer Brush's opinion, the prosecution offered both testimony and scientific and professional articles on the nature of HGN and HGN testing.

Dr. Marcelline Burns, a research psychologist, testified she was a founder of the Southern California Research Institute which studies the effects of alcohol and drugs on behavior and performance. In 1975 and again in 1978, Burns conducted tests for the National Highway Traffic Safety Administration (NHTSA) to establish a battery of sobriety tests that could be administered by police officers in the field.

Burns explained the term nystagmus and indicated its horizontal version could be induced by several conditions, including the ingestion of alcohol and other central nervous system depressants. A small number of persons have a congenital condition causing nystagmus. The phenomenon is medically recognized and nystagmus tests are used by physicians as a tool for determining whether a patient is intoxicated or has neurological problems.

Burns indicated the first studies of nystagmus as an indicator of intoxication were conducted in Finland in the early 1970's. Burns, in her studies for the NHTSA, was interested in developing a valid field test for determining intoxication. The studies found that by using three tests, one of which was HGN testing, trained officers were correct 81 percent of the time in identifying test subjects with a .10 blood alcohol level. Later, field studies by other researchers indicated HGN was a valid indicator of intoxication. In Burn's opinion, a correctly conducted HGN test is a highly reliable indicator of intoxication. Burns stated that of the three tests used in the field sobriety examination, that is, the walk and turn test, the one leg stand test and the HGN test, the HGN test is the most sensitive and least subject to the effects of alcohol tolerance.

Burns further testified she keeps current on scientific literature and opinion concerning HGN and its use in detecting intoxication in drivers. She stated the scientific community concerned with HGN as a test for intoxication was comprised of behavioral psychologists, highway safety experts, criminalists and medical doctors concerned with the recognition of alcohol intoxication. Burns stated in this community the HGN test was accepted as a reliable indicator of intoxication and she was unaware of any scientific literature stating it was not.

Burns testified the test is conducted by holding an object, such as a pen, 12 to 15 inches in front of and slightly above the subject's eyes. The object is moved in a horizontal plain from one side to the other. The officer administering the test first watches the smoothness of the subject's eyes in tracking the object. As the eyes reach their maximum lateral deviation, the observer watches the amount of jerking in the eyeball. Burns indicated about half the population shows jerking at this point of deviation naturally, possibly as the result merely of eye strain. Finally, the observer has the subject track the object back to center and then tract it again laterally. The observer's notes the degree of lateral deviation at which the eye first begins to show distinct jerking, i.e., horizontal nystagmus, and determines whether it begins before 45 degrees of deviation from center.

Burns further testified she had observed Officer Brush's technique in using the HGN test and determined he used it correctly.

James Stam, a supervising criminalist for the San Diego Police Department crime laboratory with a bachelors degree in criminology from...