U.S. v. Horn, CRIM A. 00-946-PWG.
| Decision Date | 31 January 2002 |
| Docket Number | No. CRIM A. 00-946-PWG.,CRIM A. 00-946-PWG. |
| Parties | UNITED STATES, v. Eric D. HORN. |
| Court | U.S. District Court — District of Maryland |
Eric D. Horn, APG, MD, pro se.
At approximately 10:35 p.m. on June 28, 2000, Sergeant Eric D. Horn attempted to enter the Harford Road gate of the Army facility located at Aberdeen Proving Ground, Maryland. Officer Daniel L. Jarrell stopped Horn's vehicle for an identification check. As a result of his observations of Horn, Jarrell suspected that Horn was driving under the influence of alcohol, and he was detained and questioned. Three standard field sobriety tests ("SFSTs") were administered: the "walk and turn" test, the "one leg stand" test and the "horizontal gaze nystagmus" test.1 As a result of his performance on these tests, Horn was charged with driving while intoxicated under Md.Code Ann., Transp. II § 21-902 ,2 as assimilated by 18 U.S.C. §§ 7, 13, the Assimilative Crimes Act, a Class A misdemeanor.
Horn has filed a motion in limine to exclude the evidence of his performance on the field sobriety tests, asserting that it is inadmissible under newly revised Fed.R.Evid. 702 and the Daubert/Kumho Tire decisions.3 The Government has filed an opposition, and Horn has filed a reply. In addition, a two day evidentiary hearing was held, pursuant to Fed.R.Evid. 104(a), on November 19 and 20, 2001, and additional testimonial and documentary evidence was received, which is discussed in detail below. At the conclusion of this hearing, the following ruling was made from the bench, the Court also announcing its intention subsequently to issue a written opinion on this case of first impression:4
(1) The results of properly conducted SFSTs may be considered to determine whether probable cause exists to charge a driver with driving while intoxicated ("DWI") or under the influence of alcohol ("DUI");5
(2) The results of the SFSTs, either individually or collectively, are not admissible for the purpose of proving the specific blood alcohol content ("BAC") of a driver charged with DWI/DUI;6
(3) There is a well-recognized, but by no means exclusive, causal connection between the ingestion of alcohol and the detectable presence of exaggerated horizontal gaze nystagmus in a person's eyes,7 which may be judicially noticed by the Court pursuant to Fed.R.Evid. 201, proved by expert testimony or otherwise;
(4) A police officer trained and qualified to perform SFSTs may testify with respect to his or her observations of a subject's performance of these tests, if properly administered, to include the observation of nystagmus, and these observations are admissible as circumstantial evidence that the defendant was driving while intoxicated or under the influence. In so doing, however, the officer may not use value-added descriptive language to characterize the subject's performance of the SFSTs, such as saying that the subject "failed the test" or "exhibited" a certain number of "standardized clues" during the test;
(5) If the Government introduces evidence that a defendant exhibited nystagmus when the officer performed the horizontal gaze nystagmus test, the defendant may bring out either during cross examination of the prosecution witnesses or by asking the Court to take judicial notice of the fact that there are many causes of nystagmus other than alcohol ingestion; and
(6) If otherwise admissible under Fed. R.Evid. 701, a police officer may give lay opinion testimony that a defendant was driving while intoxicated or under the influence of alcohol. In doing so, however, the officer may not bolster the lay opinion testimony by reference to any scientific technical or specialized information learned from law enforcement or traffic safety instruction, but must confine his or her testimony to helpful firsthand observations of the defendant.
The issues addressed in this case likely will recur, given the large number of Class A and B misdemeanors prosecuted in this district under the Assimilative Crimes Act. Moreover, the admissibility of SFSTs implicates recent changes to the federal rules of evidence, as well as a large body of state cases on this topic, primarily decided under a different evidentiary standard than that governing the admissibility of the results of SFSTs in federal court.8 Accordingly, this opinion will discuss the basis for the above rulings in more detail below.
Fed. R. of Evid. 104(a) requires the Court to make preliminary determinations regarding the admissibility of evidence, the qualifications of witnesses and the existence of privileges, and Rule 104(a) now permits the Court to make definitive pretrial evidentiary rulings in limine. During Rule 104(a) hearings the rules of evidence, except those dealing with privileges, are inapplicable, permitting the Court greater latitude to consider affidavits such as those filed by Horn and the Government. Fed. Rules of Evid. 104(a), 1101(d)(1).
Whether the results of SFSTs are admissible depends first on the purpose for which they are offered. Fed. Rule of Evid. 105. Second, the SFSTS must be relevant and not excessively prejudicial for the purposes offered. Fed. Rules of Evid. 401, 403. Third, if the SFSTs are introduced by the testimony of a sponsoring witness who is testifying as to scientific, technical or specialized matters, the admissibility of the SFSTS is dependent on whether the witness's testimony meets the requirements of newly revised Fed. Rule of Evid. 702 and the Daubert/Kumho Tire standards. Finally, Fed. Rule of Evid. 102 emphasizes that interpretations of the rules of evidence should be made with an eye towards promptly, fairly, efficiently and inexpensively adjudicating cases.
In this case, the results of SFSTs potentially could be offered for the following purposes: (1) to establish probable cause to arrest and charge a defendant with DWI/DUI, (2) as direct evidence of the specific BAC of a defendant who performed the SFSTs or (3) as circumstantial proof that a defendant was driving while intoxicated or under the influence of alcohol. Horn has acknowledged that the tests may be used to determine probable cause, as the overwhelming majority of cases have held,9 and the Government acknowledges that they are not admissible to prove the defendant's specific BAC, a conclusion almost universally reached by state courts, including Maryland.10 Accordingly, the task at hand is to determine to what extent the results of SFSTs are admissible as circumstantial proof that a driver has consumed alcohol and was driving while intoxicated or under its influence. Because the results of the SFSTs invariably are introduced by the testimony of an arresting police officer, and, as will be seen, may involve application of scientific, technical or other specialized information, the requirements of Rule 702, as recently revised, are of paramount importance.
Rule 702 permits testimony in the form of an opinion or otherwise regarding scientific, technical or specialized matters from a qualified expert, provided the testimony is based on (a) sufficient facts or data, (b) is the result of methods or principles that are reliable and (c) is the result of reliable application of the methods or principles to the facts of the particular case. These three requirements, added in December 2000, are complimentary to, but not identical with, the four non-exclusive evaluative factors identified by the Supreme Court in the Daubert/Kumho Tire cases: (a) whether the opinions offered are testable; (b) whether the methods or principles used to reach the opinions have been subject to peer review evaluation; (c) whether a known error rate can be identified with respect to the methods or principles underlying the opinion, and, finally, (d) whether the opinion rests on methodology that is generally accepted within the relevant scientific or technical community.11
As further will be seen, almost the entire universe of published case law regarding the admissibility of SFST evidence comes from the state courts, as would be expected, given the fact that there is no uniform federal traffic code, and DWI/DUI cases in federal court usually come about as a result of assimilating state drunk driving laws under 18 U.S.C. §§ 7 and 13. This is significant because the vast majority of the state cases that have analyzed this issue have done so under the Frye12 standard for admitting scientific or technical evidence: whether the methods or principles have gained general acceptance within the relevant scientific or technical community.13 While this test has continued vitality as one of the four Daubert/Kumho Tire factors, a federal court must do more in determining the admissibility of scientific, technical or specialized evidence than focus on general acceptance.
The starting point for this analysis is the SFSTs themselves, followed by a discussion of the evidence produced by the parties in this case regarding their reliability and then a consideration of the state cases that have focused on this issue.
The three SFSTs that are the subject of this case were developed on behalf of the National Highway Traffic Safety Administration ("NHTSA") beginning in the 1970's. They are discussed in detail by a series of NHTSA publications, including:
* a student manual for DWI detection and standardized field sobriety testing;
* a June 1977 final report prepared for NHTSA by Marcelline Burns, Ph.D.14 and Herbert Moskowitz, Ph.D. of the Southern California Research Institute ("SCRI")titled "Psychophysical Tests for DWI Arrests" (the "1977 Report");
* a March 1981 final report prepared for NHTSA by Dr. Burns and the SCRI titled "Development and Field Test of Psychophysical Tests for DWI Arrest" (the "1981 Final Report");
* a September 1983 NHTSA Technical Report, authored by Theodore E. Anderson, Robert M. Schweitz a...
To continue reading
Request your trial
-
Williams v. State
...that because a court has accepted it before, it shall be accepted again. Id. at 37 n.16, 236 A.3d 630 ; see United States v. Horn , 185 F. Supp. 2d 530, 554 (D. Md. 2002) ("The princip[al] shortcoming of Frye was that it excused the court from even having to try to understand the evidence a......
-
State v. Dilliner
...intoxicated. The great weight of authority among courts is that HGN evidence is scientific evidence. See generally, United States v. Horn, 185 F.Supp.2d 530 (D.Md.2002).7 The persuasive force of HGN evidence rests almost entirely upon an assertion of scientific legitimacy rather than a basi......
-
Rochkind v. Stevenson
...by juries and trial judges alike." Motorola, 147 A.3d at 757. In this regard, the analysis by the Honorable Paul W. Grimm in United States v. Horn is enlightening. There, Judge Grimm explained:Under Daubert, the parties and the trial court are forced to reckon with the factors that really d......
-
Rochkind v. Stevenson
...more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted. 185 F. Supp. 2d 530, 553 (D. Md. 2002) (emphasis added). "The principle shortcoming of Frye ," Judge Grimm continued, "was that it excused the court from even having ......
-
Presenting Your Expert at Trial and Arbitration
...factors can prevent its admissibility even though the technique has been generally accepted. For example, in United States v. Horn , 185 F. Supp. 2d 530 (D. Md. 2002) the court held that the regularly used standard field sobriety tests that police officers use to establish a driver’s intoxi......
-
Commonly Used Experts
...for years relied upon standard field sobriety tests that establish the level of intoxication, the court in United States v. Horn , 185 F. Supp. 2d 530 (D. Md. 2002) found that the methodology underlying the test did not satisfy the requirements of Daubert. A detailed analysis of the factual......
-
Presenting Your Expert at Trial and Arbitration
...factors can prevent its admissibility even though the technique has been generally accepted. For example, in United States v. Horn , 185 F. Supp. 2d 530 (D. Md. 2002) the court held that the regularly used standard field sobriety tests that police officers use to establish a driver’s intoxi......
-
Commonly Used Experts
...for years relied upon standard field sobriety tests that establish the level of intoxication, the court in United States v. Horn , 185 F. Supp. 2d 530 (D. Md. 2002) found that the methodology underlying the test did not satisfy the requirements of Daubert. A detailed analysis of the factual......