State v. Garrett
| Docket Number | 17795. |
| Decision Date | 09 May 1991 |
| Citation | 119 Idaho 878,811 P.2d 488 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Michael J. GARRETT, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Wilson & Carnahan, Boise, for defendant-appellant. Robert R. Chastain, argued.
Jim Jones, Atty. Gen., and Myrna A.I. Stahman, argued, Deputy Atty. Gen., Boise, for plaintiff-respondent.
The defendant-appellant Michael J. Garrett challenges the district court's admission into evidence of the results of a horizontal gaze nystagmus test (or HGN test) administered to Garrett by the police officer who had stopped him for driving while under the influence of alcohol or drugs (DUI). Garrett also appeals the use of two prior DUI convictions to enhance his present conviction to the status of a felony. We affirm the district court.
In the early morning of March 11, 1988, Garrett was stopped by police officer Gary Fost for driving straight through an intersection from a "right turn only" lane, and not heeding a "do not enter" sign. Fost administered seven field sobriety tests to determine whether Garrett was driving under the influence of alcohol or drugs. On the basis of Garrett's performance in these tests, Garrett was arrested for DUI.
In addition to the HGN test, which was administered first, there were six other field sobriety tests administered to Garrett. After the HGN test, the police officer administered the walk and turn test, the one leg stand test, the alphabet recitation test, the counting test, the fingertip count test, and the phrase test. The first three of these tests (HGN, walk and turn, one leg stand) constitute the basic battery of field sobriety tests. The other four tests administered to Garrett are administered at the option of the police officer. According to Officer Fost's testimony at trial, Garrett failed each test, with the exception of the alphabet recitation test. Garrett did recite the alphabet in the proper order, but according to Officer Fost, Garrett's speech was slurred.
At the station house, Garrett refused to submit to a breath test. At trial, Garrett pleaded not guilty, and Garrett's defense strategy was to refute Officer Fost's credentials and expertise concerning the HGN test. He also challenged the State's use of two prior DUI convictions to enhance the March 1988 charged violation to a felony. The trial court denied Garrett's motion in limine concerning the HGN test results, and denied Garrett's motion to dismiss the felony charge against him.
The trial proceedings were bifurcated. A jury, allowed to consider the HGN test results, found Garrett guilty of DUI. The court, without a jury,1 then determined that Garrett's two prior convictions justified the felony charge. This appeal followed.
Garrett argues that HGN test results are scientific evidence, requiring a determination of their reliability and acceptance in the scientific community. Garrett refers to the Frye test for novel scientific evidence, Frye v. United States, 293 P. 1013 (D.C. Cir.1923), and to an Arizona case which determined that the HGN test satisfies Frye. State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986). Garrett distinguishes the Arizona case from his circumstance by pointing out that many specialists were called in to testify about HGN test reliability in Arizona, whereas here only the arresting officer testified to the reliability of the HGN test. The State agrees that the HGN test results are scientific evidence, contending also that those results were properly admitted in accordance with the rule promulgated by this Court, I.R.E. 702.2 The State relies heavily upon the Arizona case cited by Garrett, State v. Superior Court, to show the reliability of the test, and also cites to a Montana case which recently considered the question and upheld the reliability of HGN test results. State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988).
This presentation of the reliability issue is considered in two parts. Even though a police officer may be qualified as an expert in administering the HGN test, the question whether the HGN test itself is reliable cannot be answered by this inquiry. See State v. Reed, 83 Or.App. 451, 732 P.2d 66 (1987); State v. Barker, 366 S.E.2d 642 (W.Va.1988). Therefore, we must first consider whether the HGN test is reliable and has been accepted by the scientific community. If our answer to the first part of this inquiry is in the affirmative, then we must also determine what HGN test results may be used for, and whether the police officer was competent to testify under the applicable rules of evidence as to the administration of the HGN test and its results.
A. THE HGN TEST HAS BEEN ACCEPTED AS RELIABLE.
This Court has not heretofore been presented with having to decide whether HGN tests are reliable enough for their results to be admissible at trial. However, other state courts have considered this question, and we may properly look to their opinions for guidance.3 Because the reliability of a test based on a scientifically tested phenomenon should not vary from jurisdiction to jurisdiction, we examine what other jurisdictions have done when HGN test results are offered as evidence in DUI cases.
Unlike the scientific procedure of DNA "fingerprinting" discussed in State v. Horsley, 117 Idaho 920, 792 P.2d 945 (1990), in which the reliability of that test was directly related to the procedures and protocols involved because of the possibility of test sample contamination and confusion, the HGN test is a test for an on the scene, readily observable phenomenon. This phenomenon was recently described in State v. Murphy, 451 N.W.2d 154 (Iowa 1990):
At the outset we note that the principal obstacle to the admissibility of the horizontal gaze nystagmus test may be its pretentiously scientific name. Though cumbersome, the test's title is quite descriptive. "Nystagmus" is a term used to describe an involuntary jerking of the eyeball, a condition that may be aggravated by the effect of chemical depressants on the central nervous system. State v. Superior Court, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986) (). An inability of the eyes to maintain visual fixation as they are turned from side to side is known as "horizontal gaze nystagmus." Id.
Murphy, 451 N.W.2d at 156. The test only requires the objective observations of the person administering the test. No further interpretation of results or procedures is required. If the subject's eyes do exhibit nystagmus, that is an indication that the subject may be under the influence of alcohol. Nevertheless, the HGN test is a different type of test from such sobriety tests as balancing on one leg or walking in a straight line because it relies upon science for its legitimacy rather than upon a fact based in common knowledge.
In State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986), the Arizona Supreme Court conducted an in-depth analysis of HGN testing. Resisting the defendant's motion to exclude the results of an HGN test, the State presented testimony from: (1) Dr. Marcelline Burns, a research psychologist who studied the effect of alcohol on behavior; (2) an officer of the Los Angeles Police Department who was a consultant to the National Highway and Traffic Safety Administration (NHTSA) on field sobriety testing; (3) and two officers from the Arizona Department of Public Safety, one of whom at the time conducted the HGN test training program for the State of Arizona. In addition to this testimony, the State submitted articles from scientific publications and research reports done on behalf of the NHTSA, and the court conducted its own research.
The court ruled that the HGN test satisfies the Frye standard. We have been furnished with no publications or other authority which refutes the reasoned decision of the Arizona court. We therefore hold that the HGN test does satisfy the Frye standard, because the test is based on a generally accepted theory: Persons who are intoxicated (as well as some other non-intoxicated members of the population) exhibit nystagmus. The courts of other jurisdictions, including Alaska, Arizona, Iowa, Louisiana, Montana, Ohio, and Texas have also decided that the HGN test satisfies Frye.
We note, however, that the HGN test results are not admissible for all purposes. HGN test results may not be used at trial to establish the defendant's blood alcohol level in the absence of the chemical analysis of the defendant's blood, breath, or urine. The reason for this limitation is three-fold. First, factors other than alcohol in the bloodstream can cause nystagmus. Nystagmus may be congenital, or due to a variety of factors that affect the brain. Second, laymen jurors are often awed by any procedure referred to as a "scientific" one, and are more easily persuaded to find for the State when scientific evidence in favor of the State is presented. Third, as the Arizona court explained:
Our holding does not mean that evidence of nystagmus is admissible to prove BAC [blood alcohol content] of .10 percent or more in the absence of a laboratory chemical analysis of blood, breath or urine. Such a use of HGN test results would raise a number of due process problems different from those associated with the chemical testing of bodily fluids. The arresting officer's 'reading' of the HGN test cannot be verified or duplicated by an independent party. [Citations omitted.] The test's recognized margin of error provides problems as to criminal convictions which require proof of guilt beyond a reasonable doubt. The circumstances under which the test is administered at roadside may affect the reliability of the test results. Nystagmus may be caused by conditions other than alcohol intoxication. And finally, the far more accurate chemical testing devices are readily available.
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"Utterly ineffective": do courts have a role in improving the quality of forensic expert testimony?
...to be less frequent. (105.) See Horn, 185 F. Supp. 2d at 556; State v. Superior Court, 718 P.2d 171,181 (Ariz. 1986); State v. Garrett, 811 P.2d 488, 491 (Idaho 1991) ("HGN test results may not be used at trial to establish the defendant's blood alcohol level in the absence of the chemical ......