Yell v. State
| Citation | 856 P.2d 996 |
| Decision Date | 16 July 1993 |
| Docket Number | No. M-92-631,M-92-631 |
| Parties | Otto Leon YELL, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant was tried by a jury in the District Court of Texas County for the offense of Driving Under the Influence, in violation of 47 O.S.1991, § 11-902, Case No. CRM-91-201. He was found guilty of the crime charged and sentenced to one year imprisonment in the county jail, and fined $1,000. He was also found guilty of the offense of Driving to the Left of Center of Roadway. For this charge, he was sentenced to 10 days imprisonment in the county jail and fined $100.00. From this judgment and sentence, appellant appealed to this Court.
Pursuant to 22 O.S.Supp.1990, Ch. 18, App., Rules of the Court of Criminal Appeals, Rule 11.2, the appeal was automatically assigned to the Accelerated Docket of this Court. Oral argument was held on June 10, 1993, at which time the issues raised were presented to the Court. Because this case concerned issues of first impression in this jurisdiction, the matter was taken under advisement. Although appellant raised eight propositions of error on appeal, we will discuss only those which warrant relief. Those issues are as follows:
I) The Horizontal Gaze Nystagmus test is not generally recognized by the relevant scientific community.
II) Even if the Horizontal Gaze Nystagmus test is found to be a scientific principle that is generally recognized by the relevant scientific community, it is not admissible in a criminal case to quantify blood alcohol content, and it was reversible error to allow the officer to testify to the degree of intoxication or blood alcohol level based upon such tests.
The events which gave rise to this case occurred at approximately 1:39 a.m. on August 9, 1991, about two miles east of Guymon on Highway 54, when Officer Gregory James observed a pickup straddling both eastbound lanes on the four lane highway. He stopped the pickup which was driven by appellant. When appellant exited his vehicle the officer observed that he was having a difficult time walking as he was swaying and staggering and using the side of his pickup to keep his balance. When Officer James got close to appellant, he noticed appellant had red, bloodshot eyes and smelled of alcoholic beverage. Officer James administered the Horizontal Gaze Nystagmus (HGN) test, the walk and turn test, and the one leg stand test to the appellant. Based upon these tests, the officer testified that he believed the appellant to have had a blood alcohol level of above .10. Appellant agreed to take a breathalyzer test but refused to take a blood test. Because no qualified person was available to administer a breathalyzer test, no chemical test was administered.
Damon Johnson, a jailer for Texas County testified that he was present when appellant was booked into the jail. He stated that he observed appellant to have slow, slurred speech and the odor of alcohol on his breath. He also noted that appellant was unsteady and fell back against the wall while changing out of his pants at the jail.
It has long been the rule in Oklahoma that, "[b]efore scientific evidence is admissible, there must be proof that the reliability of the tests used has gained general acceptance and recognition in the concerned scientific community." Plunkett v. State, 719 P.2d 834, 840 (Okl.Cr.1986). See also Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Thus, the party seeking to admit such evidence must lay a proper foundation before the results of a scientific test may be admitted into evidence.
A review of the record in the present case reveals that there was absolutely no evidence that the reliability of the HGN test has gained acceptance in the concerned...
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