State v. Bresson
| Decision Date | 30 May 1990 |
| Docket Number | No. 89-611,89-611 |
| Citation | 51 Ohio St.3d 123,554 N.E.2d 1330 |
| Parties | The STATE of Ohio, Appellant, v. BRESSON, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A properly qualified officer may testify at trial regarding a driver's performance on the horizontal gaze nystagmus test as it pertains to the issues of probable cause to arrest and whether the driver was operating a vehicle while under the influence of alcohol. See R.C. 4511.19(A)(1). However, such testimony may not be admitted to show what the exact alcohol concentration level of the driver was for purposes of demonstrating a violation of R.C. 4511.19(A)(2), (3), or (4).
In the early morning hours of October 9, 1987, State Trooper Steven Click was driving southbound on State Route 315 south of Interstate Route 270, in Franklin County, Ohio. Trooper Click observed in front of him a car driven by Philip J. Bresson, defendant-appellee, which was going in excess of sixty-five miles per hour in a fifty-five-mile-per-hour speed zone. While following appellee's car, Trooper Click noticed that appellee's car twice crossed the center line dividing the traffic lanes.
After stopping appellee's car, Trooper Click approached the driver's side and asked to see appellee's driver's license. As Trooper Click talked to appellee, he noticed that appellee's breath had a moderate odor of alcohol and that appellee's eyes were red and somewhat glassy. Trooper Click asked appellee to exit his car so that field sobriety tests could be performed.
The first test that Trooper Click conducted was the horizontal gaze nystagmus ("HGN") test which was administered to appellee after he entered the patrol car. 1 Trooper Click testified that a person who exhibits all six points on this test has a very good chance of testing over 0.10 percent, i.e., ten hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath on a chemical test. Appellee exhibited all six points on the HGN test.
The other field sobriety tests that Trooper Click administered to appellee were the "one-leg stand" test, "walk-and-turn" test, "finger-to-nose" test, and recitation of the alphabet. After appellee had finished the field tests, Trooper Click informed appellee that he was under arrest for operating a motor vehicle while under the influence of alcohol, whereupon appellee was taken to the Worthington Police Department.
Appellee was given a breath test at the Worthington police station. Trooper Click testified that appellee tested .107 grams per two hundred ten liters of breath on the BAC Verifier. Appellee was charged with violations of R.C. 4511.19(A)(1) and 4511.19(A)(3), 2 and with failure to drive within marked lanes. Appellee entered a plea of not guilty and requested a jury trial.
At trial Trooper Click testified as to how the HGN test is administered, what training he had received in preparation for administering the test, and the results of appellee's performance on the test. This testimony was admitted over objection of defense counsel. The jury returned a verdict of guilty on both charges. The court also found appellee guilty of the minor misdemeanor of failing to drive in marked lanes.
The appellate court reversed appellee's conviction stemming from the violation of R.C. 4511.19(A)(1). The court held that the trial court erred when it admitted evidence regarding the HGN test without requiring expert testimony to establish the validity of the HGN test and the scientific principles underlying the test.
The appellate court, upon a motion by the plaintiff-appellant state, determined that its decision was in conflict with decisions from other courts of appeals in the state, specifically, State v. Nagel (1986), 30 Ohio App.3d 80, 30 OBR 136, 506 N.E.2d 285; State v. Brug (Aug. 7, 1987), Lucas App. No. L-86-280, unreported, 1987 WL 15300; State v. Hintz (Apr. 5, 1985), Lucas App. No. L-84-377, unreported, 1985 WL 7090; and State v. Earley (Mar. 10, 1986), Clinton App. No. CA85-08-016, unreported, 1986 WL 2998. The court of appeals certified the following question for review by this court: "Whether a court may admit evidence of a defendant's performance on a horizontal gaze nystagmus test in the absence of expert testimony establishing the scientific foundation of the test." The appellate court certified the record of the case to this court for review and final determination.
Ronald J. O'Brien, City Atty., James J. Fais, City Prosecutor, and Thomas K. Lindsey, Columbus, for appellant.
Carl T. Wolfrom, Columbus, for appellee.
Isaac, Brant, Ledman & Becker and David H. Meade, Columbus, urging reversal for amicus curiae, Mothers Against Drunk Driving.
The HGN test is used by an increasing number of law enforcement agencies across the country as an additional means to determine probable cause as to whether a person is operating a vehicle under the influence of alcohol. See, generally, 1 Erwin, Defense of Drunk Driving Cases (3d Ed.1989), Section 8.26; Annotation (1988), 60 A.L.R.4th 1129, 1131; Goding & Dobie, Gaze Nystagmus and Blood Alcohol (July 1986), 96 Laryngoscope 713; see, also, Belton, Lateral Nystagmus: A Specific Diagnostic Sign of Ethyl Alcohol Intoxication (1987), 100 New Zealand Med.J. 534. "Nystagmus" has been defined as a "rhythmic to-and-fro oscillation of the eyes[,]" or as an involuntary jerking of the eyeball. Walsh, Neuro-Opthalmology: Clinical Signs and Symptoms (1978) 239; The Merck Manual of Diagnosis and Therapy (15 Ed.1987) 1359; Dorland's Illustrated Medical Dictionary (26 Ed.1981) 910. "Horizontal gaze nystagmus" refers to a jerking of the eyes as they gaze, or look, to one side. See Erwin, supra, at 8-51. It has been shown that there is a correlation between blood-alcohol concentration ("BAC") and nystagmus. See Goding & Dobie, supra; Belton, supra; Wilkinson, Kime & Purnell, Alcohol and Human Eye Movement (1974), 97 Brain 785; Development and Field Test of Psychophysical Tests for DWI Arrest (Mar. 1981), U.S. Department of Transportation, National Highway Traffic Safety Administration; Good & Augsburger, Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing (1986), 63 Am.J.Optometry & Physiological Optics 467. 3
According to a test manual devised by the United States Department of Transportation for use by law enforcement agencies, the HGN test is the single most accurate field test to use in determining whether a person is alcohol impaired. U.S. Department of Transportation, National Highway Safety Administration, Improved Sobriety Testing (1984) 4. 4 Although many people will have some nystagmus as their eyes move to an extreme side, as people become intoxicated, the jerking becomes not only more frequent and pronounced but it also occurs at an earlier angle. See Erwin, supra, at 8-51.
The HGN test is relatively easy to administer. The driver taking the HGN test usually is asked to focus on a "stimulus" (such as a pen) held in an officer's hand at the driver's eye level approximately six to eight inches away. The officer will then move the stimulus gradually out of the driver's field of vision toward the driver's ear. Because it has been shown that the onset of the angle of nystagmus at less than forty-five degrees indicates the presence of alcohol, the officer watches each eye to determine whether nystagmus occurs at an angle less than forty-five degrees. See State v. Superior Court (1986), 149 Ariz. 269, 271, 718 P.2d 171, 173; Development and Field Test of Psychophysical Tests for DWI Arrests, supra. Each eye is tested separately, although the suspect performs the HGN test binocularly. See Good & Augsburger, supra, at 469.
According to the test manual devised by the United States Department of Transportation, an officer administering the HGN test observes the driver's eyes to detect the following three signs of intoxication:
"(3) If the suspect is intoxicated, he cannot follow a slowly moving object smoothly with his eyes." Improved Sobriety Testing, supra, at 3.
A person may receive up to six points on the HGN test. Specifically, each eye is tested to determine (1) whether the angle of onset of nystagmus is less than forty-five degrees; (2) whether nystagmus, when the eye is moved as far as possible to one extreme, is moderate or distinct; and (3) whether the eye can follow a moving object smoothly. A score of four or more points indicates a BAC level above .10 percent. Using these criteria, an officer should be able to correctly determine seventy-seven percent of the time whether a person taking the test is under the influence of alcohol or sober. When the HGN test is used in conjunction with the walk-and-turn field sobriety test, an officer's ability to detect whether a driver is under the influence of alcohol is improved. See Improved Sobriety Testing, supra, at 4.
In the instant case, appellee had objected to Trooper Click's testimony regarding the HGN test. The trial court overruled this objection, stating that the test had been accepted by the courts.
The court of appeals found that admission of Trooper Click's testimony about the HGN test was improper because *...
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