State v. Barker, 17942

• Decision Date: 23 February 1988
• Docket Number: No. 17942,17942
• Citation: 366 S.E.2d 642,179 W.Va. 194
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Robert M. BARKER.

Page 642

366 S.E.2d 642

179 W.Va. 194

STATE of West Virginia v. Robert M. BARKER.

No. 17942.

Supreme Court of Appeals of West Virginia.

Feb. 23, 1988.

Syllabus by the Court

1. "In order for a scientific test to be initially admissible, there must be general acceptance of the scientific principle which underlies the test." Syl. pt. 7, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980).

2. Estimates of blood alcohol content based on the Horizontal Gaze Nystagmus test are inadmissible as evidence in a criminal trial.

Richard M. Richmond, Asst. Pros. Atty., Parkersburg, for state.

Ernest M. Douglass, Parkersburg, for Robert Barker.

BROTHERTON, Justice:

Robert M. Barker appeals his conviction by a Wood County jury of Third Offense Driving Under the Influence of Alcohol, W.Va.Code § 17C-5-2(i) (Supp.1987). Barker argues that the lower court erred in admitting (1) evidence of his prior convictions for driving under the influence; (2) the results of a Horizontal Gaze Nystagmus Test; and (3) evidence that Barker refused to take a breathalyzer test. ¹ For the reasons set forth below, we find the results of the Horizontal Gaze Nystagmus test should have been excluded, and we reverse the judgment of the Circuit Court of Wood County and remand for further proceedings.

On April 12, 1986, Officer Michael E. Davis of the Parkersburg, West Virginia Police Department responded to a report of two disorderly drunks in a dark Ford Pinto. Immediately after Officer Davis began following the Pinto, the appellant, who was driving, pulled off to the side of the road. Officer Davis pulled in behind him and turned on his flashing blue lights. Barker exited the vehicle and began to walk away. Officer Davis caught up with Barker and accompanied him back to his police cruiser. Officer Davis observed that Barker was swaying from side to side as he walked and that he smelled of alcohol. After Barker failed a series of three field sobriety tests, the finger-to-nose test, the recitation-of-the-alphabet test, and the Horizontal Gaze Nystagmus test, Officer Davis arrested Barker for driving under the influence of alcohol. ²

When they arrived at the police station, Officer Davis asked Barker to take a breathalyzer test and informed him of the statutory penalty for refusing to do so. ³ Barker refused to take the breath test unless his lawyer was present. Officer Davis explained that the breath sample must be taken within two hours of his arrest. Because approximately one and one-half hours had already passed since his arrest, it would be impossible for his attorney to be present before the two-hour period had expired. Barker still refused the breath test and was then arraigned before the magistrate and incarcerated.

On April 22, 1986, the magistrate court issued a warrant charging Barker with Third Offense Driving Under the Influence, citing two prior DUI convictions. On June 14, 1986, the Grand Jury of Wood County issued an indictment charging Barker with Third Offense Driving Under the Influence of Alcohol in violation of W.Va.Code § 17C-5-2(i) (Supp.1987). On October 30, 1986, a Wood County jury found Barker guilty of Third Offense Driving Under the Influence of Alcohol. Barker was sentenced to a prison term of not less than one or more than three years.

I.

Barker argues that the lower court erred in permitting Officer Davis to testify as to the results of the Horizontal Gaze Nystagmus (HGN) test. The HGN test is based on the principle that consumption of alcohol causes nystagmus. Nystagmus is the rhythmic oscillation of the eyes in a horizontal, vertical or rotary direction. The Merck Manual of Diagnosis and Therapy 1980 (14th ed. 1982). ⁴ Nystagmus can be congenital or can be caused by a variety of conditions affecting the brain, including ingestion of drugs such as alcohol or barbiturates. Id. The HGN test allows a police officer to estimate the level of alcohol in the blood by observing the occurrence of nystagmus in a person suspected of driving under the influence of alcohol.

To administer the HGN test, a police officer asks the driver to cover one eye and focus the other on an object, usually a pen, held by the officer at the driver's eye level. See, e.g., State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 173 (1986) (describing administration of HGN test). "As the officer moves the object gradually out of the driver's field of vision toward his ear, he watches the driver's eyeball to detect involuntary jerking" or nystagmus. Id. The officer then repeats the test with the other eye. Onset of nystagmus at an angle of 40? or less in relation to the center point yields a blood alcohol estimate of .10% or greater. See id. at 174 n. 1; 1 R. Erwin, Defense of Drunk Driving Cases § 8.15A (3d ed. 1987).

Over defense counsel's objection, the trial court qualified Officer Davis as an expert in the area of the HGN test. Officer Davis' training in the administration of the HGN test consisted of a one-day, eight-hour training session conducted by the West Virginia State Police in 1984. Officer Davis testified that he had administered the HGN test approximately one hundred times and that comparisons of his estimates of blood alcohol levels based on the HGN test with levels shown on a breathalyzer had revealed only minimal variance. Testifying as an expert, Officer Davis told the jury that based on the results of the HGN test he estimated Barker's blood alcohol level at .20%.

In general, "[i]n order for a scientific test to be initially admissible, there must be general acceptance of the scientific principle which underlies the test." Syl. pt. 7, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980). ⁵ There are some scientific tests, such as ballistics tests, fingerprint identification, and blood tests, which are so generally accepted in the scientific community that a trial court may take judicial notice of their reliability. 165 W.Va. 618, 270 S.E.2d at 676. However, "where the reliability of the scientific test cannot be judicially noticed, its reliability must be demonstrated before the expert can testify concerning the test." 165 W.Va. 618, 270 S.E.2d at 677.

In the present case, the State offered no evidence to demonstrate the reliability of either the HGN test or the scientific principle upon which the HGN test is based, i.e., that alcohol consumption causes nystagmus. The only testimony regarding the HGN test came from Officer Davis. Officer Davis told the jury that the HGN test "consists of the measurement of the horizontal movement of the eye as it is affected by alcohol," and described how he performed the test. ⁶ He also described the reaction of a sober person's eye to the test, and how that reaction is affected by consumption of alcohol. He did not, however, address the scientific reliability of the test. We, therefore, find that the lower court erred in admitting Officer Davis' testimony concerning the HGN test. ⁷

One of the dangers inherent in expert testimony in regard to scientific tests is that the jury may not understand the exact nature of the test and the particular methodology of the test procedure, and may accord an undue significance to the expert testimony. State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659, 678 (1980). ⁸ It therefore seems reasonable to require, as we did in Clawson, some in camera disclosure of the methodology, scientific reliability, and results of the HGN test, as well as evidence of whether accepted test procedures were followed by qualified personnel in a particular case. See 165 W.Va. at 619-620, 270 S.E.2d at 677-78. A demonstration of reliability should include both testimony by expert witnesses and relevant articles and scholarly publications. See 165 W.Va. at 618, 270 S.E.2d at 677. ⁹ Because the State did not introduce evidence of the scientific reliability of the test in this case, we do not reach the question of whether the HGN test is sufficiently reliable to be admissible.

Even if the HGN test were found to be reliable, and its results admissible, we would be left with the question of whether estimates of blood alcohol content based on a driver's performance of the HGN test are admissible. The HGN test is a field sobriety test. A police officer's testimony as to a driver's performance on other field sobriety tests like finger-to-nose or walking the line, is admissible at trial as evidence that the driver was under the influence of alcohol. From the evidence presented, we are not convinced that the HGN test should be entitled to any more evidentiary value than other field sobriety tests. We note that unlike the blood, breath, and urine tests, the HGN test has not been recognized by our state legislature as a method for measuring blood alcohol content. See W.Va.Code § 17C-5-4 (1986). We, therefore, find that even if the reliability of the HGN test is demonstrated, an expert's testimony as to a driver's performance on the test is admissible only as evidence that the driver was under the influence. Estimates of blood alcohol content based on the HGN test are inadmissible. ¹⁰

II.

Barker also argues that the lower court erred in admitting evidence of his prior convictions for driving under the influence of alcohol. The record before us shows that on August 6, 1982, Barker pleaded guilty to driving under the influence and was fined and sentenced to a twenty-four-hour jail term. On August 22, 1983, Barker again pleaded guilty to first offense DUI as the result of a plea bargain reducing the offense charged from second offense DUI to first offense DUI. Barker was fined and sentenced to a jail term of three months.

Barker maintains that his pleas to the two prior offenses were not made voluntarily and intelligently because, even though he had counsel present, it was not made clear to him in 1983 that as a consequence of his plea to first offense DUI, his next DUI offense would constitute third offense DUI. In short, Barker argues that he cannot be convicted of third...