State v. Witte
| Decision Date | 10 July 1992 |
| Docket Number | No. 66065,66065 |
| Citation | 251 Kan. 313,836 P.2d 1110 |
| Parties | , 61 USLW 2110 STATE of Kansas, Appellee, v. Edwin T. WITTE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The horizontal gaze nystagmus test is distinguished from other field sobriety tests in that science, rather than common knowledge, provides the legitimacy for horizontal gaze nystagmus testing.
2. Horizontal gaze nystagmus test results are scientific evidence. As such, the foundation requirements for admissibility enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), must be satisfied.
3. The Frye test requires that, before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. If a new scientific technique's validity generally has not been accepted as reliable or is only regarded as an experimental technique, then expert testimony based on its results should not be admitted into evidence.
4. The State has the burden of satisfying the Frye test by proving: (1) The reliability of the underlying scientific theory upon which the horizontal gaze nystagmus test is based (i.e., that the nystagmus of the eye is, in fact, an indicator of alcohol consumption to the degree that it influences or impairs the ability to drive); (2) the method used to test horizontal gaze nystagmus is a valid test to measure or perceive that phenomenon, particularly if the method actually conducted by the law enforcement officer administering the test.
Geary N. Gorup, of The Law Office of Geary N. Gorup, Wichita, argued the cause and was on the brief for appellant.
Jeffrey E. Goering, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.
This is a direct appeal by the defendant, Edwin T. Witte, from his conviction of driving while under the influence of alcohol, contrary to K.S.A. 8-1567(a)(1).
Although the defendant raises other issues, the primary and dispositive issue is whether the trial court erred in admitting evidence of the horizontal gaze nystagmus (HGN) test administered by a law enforcement officer and, if so, whether it was harmless error.
In the early morning hours of June 1, 1990, Deputy Ron Goodwyn was traveling his normal patrol route. Shortly before 2 a.m., after noticing a vehicle swerving back and forth, he stopped the vehicle. The deputy informed Witte, the driver of the vehicle, that he had been stopped because of his erratic driving, including crossing the center line and hitting the curb.
Goodwyn testified that Witte said if he had problems driving, it was due to the condition of the car. Witte testified this was the first time he had driven the car. He stated the steering was loose and the car pulled to the left. Sheldon Birmingham, the car's owner and a passenger in the car, testified the car did not hit the curb and he did not notice the car weaving. Birmingham also stated there was "a little play in the steering wheel" and people who had driven his car complained about the loose steering.
Deputy Goodwyn testified he detected a strong odor of alcohol and noticed that Witte's eyes were bloodshot and watery. Witte admitted he had drunk two beers.
The deputy had Witte perform field sobriety tests, namely, the HGN, the walk and turn, and the one-leg stand. According to Goodwyn, Witte failed the field sobriety tests. Witte testified that after he completed the three tests, Goodwyn told him he had passed. Witte also stated that Goodwyn said he would run a check on Witte's driver's license and, if there were no problems, Witte would be free to go. Birmingham testified that when Witte returned Deputy Goodwyn ran a check of Witte's driver's license, which was suspended. Goodwyn arrested the defendant and transported him to the Sedgwick County Jail. Witte then was given a breath test, which registered a .103 alcohol concentration at 3:22 a.m. The defendant was charged with driving with an alcohol concentration in his blood or breath of .10 or more, contrary to K.S.A. 8-1567(a)(1) and (2); one count of driving with a suspended driver's license, contrary to K.S.A. 8-262(a)(1); one count of lane straddling, contrary to K.S.A. 8-1522(a); and one count of driving left of center, contrary to K.S.A. 8-1514(a).
to the car, Witte confirmed he had passed the tests. [251 Kan. 315] Birmingham stated the deputy then came by the car and told them they were free to go after he checked their licenses.
Witte pled guilty to driving with a suspended driver's license. The State dismissed the lane-straddling charge on the basis that it merged with the charge of driving left of center. After a jury trial on October 8-11, 1990, the jury acquitted Witte of the charge of driving left of center and convicted him of driving with a concentration of alcohol in his breath of .10 or more, contrary to K.S.A. 8-1567(a)(1).
Witte received a controlling sentence of one year and total fines of $600.
The defendant filed a timely notice of appeal. The case was transferred to this court, pursuant to K.S.A. 20-3018(c).
In Kansas, it is illegal for an individual with a blood or breath alcohol concentration (BAC) of .10 or higher to operate or attempt to operate a vehicle. K.S.A. 8-1567(a)(1). The National Highway Traffic Safety Administration (NHTSA) has researched and recommended a battery of field sobriety tests to assist in this determination. The NHTSA claims the HGN test is an accurate and effective field sobriety test to determine whether a driver's alcohol concentration is above .10. National Highway Traffic Safety Administration, DOT-HS-806-512, Improved Sobriety Testing (January 1984) (found at 2 Nichols, Drinking/Driving Litigation § 26 app. A [1991] (hereinafter 1984 NHTSA Study); National Highway Traffic Safety Administration, DOT-HS-806-475, Field Evaluation of a Behavioral Test Battery for DWI (September 1983) (found at 2 Nichols, Drinking/Driving Litigation § 26 app. B [1991] (hereinafter 1983 NHTSA Study); National Highway Traffic Safety Administration, DOT-HS-805-864, Development and Field Test of Psychophysical Tests for DWI Arrest (March 1981) (found at 2 Nichols, Drinking/Driving Litigation § 26 app. C [1991] (hereinafter 1981 NHTSA Study); Wichita-Sedgwick County Standardized Field-Sobriety Procedure, Officers Manual (1987); see Carper & McCamey, Gaze Nystagmus: Scientific Proof of DUI?, 77 Ill.B.J. 146 (1988); Seelmeyer, Nystagmus, A Valid DUI Test, Law and Order 29 (July 1985); Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jr. Proof of Facts 3d 439 § 1 (1989).
Nystagmus is "an involuntary rapid movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed." Dorland's Illustrated Medical Dictionary 1068 (25th ed. 1974); see 3 Schmidt's Attorneys' Dictionary of Medicine N-102 (1991); Stedman's Medical Dictionary 1074 (25th ed. 1990). HGN is
"The theory behind the gaze nystagmus test is that there is a strong correlation between the amount of alcohol a person consumes and the angle of onset of the nystagmus." Carper & McCamey, 77 Ill.B.J. at 147; see Whitmore, Roadside Sobriety Tests: A Police Officers' Guide to Making Drunk Driving Arrests Stand Up in Court § 5:05 (1987).
No special equipment is needed to administer the HGN test. The driver is instructed "Check the suspect's right eye by moving the object to the suspect's right. Have the suspect follow the object until the eyes cannot move further to the side. Make this movement in about two seconds, and observe: 1) whether the suspect was about to follow the object smoothly or whether the motion was jerky; and 2) how distinct the nystagmus is at the maximum deviation.
to keep his head stationary and follow an object, such as a pen, a penlight, or the officer's finger, with his eyes. The object is held at the driver's eye level and positioned about 12 to 15 inches away from the driver's eyes. The NHTSA then instructs officers:
....
This procedure is repeated for the left eye.
There are three possible signs of intoxication for each eye:
"Smooth Pursuit--an intoxicated person often cannot follow a slowly moving object smoothly with his eyes." 2 Nichols, Drinking/Driving Litigation § 26:01, p. 159 (1992 Supp.).
A score of six points is possible, three for each eye. According to the NHTSA, if a driver scores four or more points, the driver's BAC is above .10. 1984 NHTSA Study at 4. For a detailed discussion of the administration and scoring of the HGN test, see 1984 NHTSA Study at 3-4; Tenney, The Horizontal Gaze Nystagmus Test and The Admissibility of Scientific Evidence, 27 N.H.B.J. 179, 181 (1...
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