State v. Hullinger

• Decision Date: 10 July 2002
• Docket Number: No. 22132.,22132.
• Citation: 649 N.W.2d 253,2002 SD 83
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Timothy HULLINGER, Defendant and Appellee.
• Court: South Dakota Supreme Court

649 N.W.2d 253

2002 SD 83

STATE of South Dakota, Plaintiff and Appellant, v. Timothy HULLINGER, Defendant and Appellee.

No. 22132.

Supreme Court of South Dakota.

Considered on Briefs April 22, 2002.

Decided July 10, 2002.

Mark Barnett, Attorney General, Gary R. Campbell, Assistant Attorney General, Thomas P. Maher, Stanley County States Attorney, Fort Pierre, South Dakota, Attorneys for plaintiff and appellant.

Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Pursuant to SDCL 23A-32-5, the State petitioned for an interlocutory appeal from a magistrate court order suppressing evidence of a horizontal gaze nystagmus (HGN) test. We granted the petition. The State raises first impression issues regarding admission of the HGN test in prosecutions for driving under the influence in this state. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] On March 18, 2001, Stanley County deputy sheriff David Ludwig observed a red Camaro driving slowly out of Fort Pierre. Ludwig noticed its driver touch the curb and cross the center line several times. At the Bad River bridge, the Camaro traveled in the oncoming lane, then jerked back to the proper lane and crossed the fog line. Ludwig activated his emergency lights and the driver increased his speed as he traveled southward on Highway 83. He continued approximately 1 to 1-1/2 miles before pulling to the roadside and stopping.

[¶ 3.] The driver of the vehicle, Timothy Hullinger, provided his driver's license and registration at Ludwig's request. Ludwig noted Hullinger's eyes were bloodshot and watery and the odor of alcohol emitted from his vehicle. When Hullinger spoke, Ludwig noted his speech was slurred. Ludwig explained he stopped Hullinger for erratic driving and asked him to have a seat in the patrol vehicle and then to perform some field sobriety tests. Ludwig noted that Hullinger staggered as he walked.

[¶ 4.] Hullinger correctly recited the alphabet but Ludwig again noted his slurred speech. Ludwig next administered the horizontal gaze nystagmus (HGN) test which required Hullinger to keep his eyes on an object, in this case a pen, while Ludwig slowly moved it through space. Ludwig noted Hullinger could not smoothly follow this object. His eyes showed nystagmus at maximum deviation and an onset of nystagmus prior to 45 degrees. Hullinger was then asked to count backwards from 1988 to 1969. He was able to recite these years correctly, but slurred speech was again noted.

[¶ 5.] All of these tests were performed inside the patrol vehicle. When Ludwig asked Hullinger to perform some outside field sobriety tests, Hullinger stated that he had a problem with one of his legs and asked why he needed to perform more tests. Ludwig then administered a breathalyzer (PBT) which registered over.10 percent blood alcohol content (BAC). He arrested Hullinger for driving under the influence. Hullinger refused to provide a blood sample and was transported to jail where his driver's license was confiscated and he was issued a 30-day temporary driving permit.

[¶ 6.] The State charged Hullinger with driving under the influence in violation of SDCL 32-23-1(2) and careless driving in violation of SDCL 32-24-8. It later amended its complaint to add a charge of reckless driving in violation of SDCL 32-24-1. Following the initial charges, Hullinger filed a motion to exclude evidence of the HGN test, claiming that Deputy Ludwig was not an expert and should be precluded from testifying about his opinions or conclusions with regard to his administration of this test.

[¶ 7.] The court ruled that no witness would be permitted to testify about Hullinger's performance on the HGN test until the State presented sufficient foundational evidence to justify introduction of such testimony. At the pretrial hearing, the State presented three witnesses: 1) Monte Farnsworth, training director for the Office of Highway Safety at the Division of Criminal Investigation Law Enforcement Training Academy; 2) Deputy Ludwig; and 3) Dr. Larry Menning, optometrist and expert witness. Farnsworth testified that he is a standardized field sobriety test instructor who has instructed approximately 700 police officers in administering the HGN test and analyzing its results. He further testified on these test methods, their standardization and reliability. Ludwig testified regarding his administering the test to Hullinger, its results, and his training and experience in administering the test. Dr. Menning testified regarding the effects of alcohol on the central nervous system, recognized studies regarding the HGN test and its scoring criteria, and correlation of HGN test results and blood alcohol concentration. In addition, the State introduced copies of these HGN test studies into evidence. Hullinger had no objection to their admission.

[¶ 8.] Following the hearing, the court entered an order excluding evidence of the HGN test at trial on grounds that it was irrelevant and that its probative value was substantially outweighed by the danger of unfair prejudice to the defendant or that it would confuse the issues or mislead the jury. In large part, the court based its conclusion on the fact that Hullinger was charged with driving under the influence in violation of SDCL 32-23-1(2) and not charged with having a BAC of .10 percent or greater in violation of SDCL 32-23-1(1). The State claims the suppression order was an abuse of the trial court's discretion and specifically raises three issues:

1. Whether the magistrate court was clearly erroneous in finding that a positive HGN test indicates the presence of .10 percent alcohol in Hullinger's blood but does not indicate whether he is under the influence of alcohol.

2. Whether evidence of a properly administered HGN test, the results of which indicate the presence of nystagmus, is relevant to whether a person is under the influence of alcohol.

3. Whether the magistrate court was clearly erroneous in finding the probative value of a positive HGN test is substantially outweighed by unfair prejudice, confusion of the issues, and misleading the jury.

ANALYSIS AND DECISION

[¶ 9.] Our standard of review for a trial court's grant or denial of a motion to suppress is abuse of discretion. State v. Anderson, 1996 SD 59, ¶ 8, 548 N.W.2d 40, 42. An abuse of discretion is discretion "exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Gesinger, 1997 SD 6, ¶ 8, 559 N.W.2d 549, 550. Further, it is well settled that,

A trial court's findings of fact from a suppression hearing must be upheld unless they are clearly erroneous. This Court's function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. In making this determination, we review the evidence in a light most favorable to the trial court's decision.

State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637 (internal citations omitted).

[¶ 10.] Many state courts have recently addressed the issue of admissibility of HGN evidence in driving under the influence cases. The Indiana Court of Appeals recently provided this explanation of HGN and its field testing procedures:

`Nystagmus is an involuntary jerking of the eyeball. [The involuntariness differentiates it from other field sobriety tests.] The jerking may be aggravated by central nervous system depressants such as alcohol or barbiturates. [citation omitted]. Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they are turned to the side. In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver's eye level. 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. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver's blood alcohol content (BAC) exceeds the legal limit of .10 percent.' ... [A]s long ago as 1977 the National Highway Traffic Safety Administration, U.S. Department of Transportation, concluded that HGN along with walk-and-turn and one-leg stand tests were the most effective roadside testing to detect impaired drivers. Psychophysical Tests for DWI Arrest, No. DOT-HS-802-424 (June 1977).

Cooper v. State, 761 N.E.2d 900, 902-03 (Ind.Ct.App.2002).

[¶ 11.] We previously decided an appeal in which an HGN test was administered as part of field sobriety testing, however its admissibility was not in issue. State v. Meek, 444 N.W.2d 48, 50 (S.D. 1989). In Meek, an interlocutory appeal by the State, we ruled that the verbal and dexterity field sobriety test results should not have been suppressed against the defendant's claim of his Fifth Amendment right against self-incrimination. Unlike the present case, the trial court in Meek did not suppress testimony concerning the gaze nystagmus test or the officer's observations concerning Meek's physical characteristics. Meek did not appeal this ruling. As the State notes, the issues raised in the present appeal are first impression issues in South Dakota.

[¶ 12.] The overwhelming majority of jurisdictions having addressed the issue permit the admission of evidence of HGN testing in criminal trials involving charges of driving while intoxicated. Klentz v. State, 2002 WL 534156 (TexCtApp, Apr. 11, 2002); Decker v. State, 2002 WL 531136 (Alaska Ct.App., Apr.10, 2002); State v. Krause,...