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Attacking HGN
Standardization problems – Tests
are referred to as “Standardized
Field Sobriety Tests” for a reason.
This means that specific rules for administering,
scoring, and interpretation have been specified
and researched. If research findings are
used to support the validity of the tests,
since a test that is modified is no longer
the same test – this makes standardization
crucial. The National Highway Transportation
Safety Administration (NHTSA) states, “If
any one of the standardized field sobriety
test elements is changed, the validity
is compromised. ( National Highway Traffic
Safety ADM., U. S. Dept. Of Transp., HS
178.R2/00, DWI Detection and Standardized
Field Sobriety Testing, Student Manual
(2000) at VIII-3
In Emerson v. State, 880 S. W. 2d 759
(Tex. Crim. App. 1994) the court held that
if not properly administered, the Standardized
Field Sobriety Tests are not admissible.
Also see McRae v. State, 152 S. W. 3d 738,
743-744 (Tex. App. – Houston [1 st
Dist.] 2004) ( HGN Test
Appellant contends that the trial court erred by allowing the arresting officer
to testify that appellant had six clues, the maximum number possible, on the
HGN test because, by the officer's own admission, he administered the test
to appellant incorrectly. HN4HGN evidence is reliable, admissible scientific
evidence under rule 702 when performed by a police officer who is certified
by the National Highway Transportation Safety Administration (NHTSA) n1 and
who applies the technique properly. Emerson v. State, 880 S.W.2d 759, 768 (Tex.
Crim. App. 1994) (concluding that HGN evidence met the criteria in Kelly, 824
S.W.2d at 572). The HGN technique is applied properly when the officer follows
the standardized procedures outlined in the DWI Detection Manual published
by NHTSA. See id. In determining whether a person's performance of the HGN
test suggests intoxication, an officer must look for the following clues in
each eye: (1) the lack of smooth pursuit, (2) distinct nystagmus at maximum
deviation, and (3) the onset of nystagmus prior to 45 degrees. Compton v. State,
120 S.W.3d 375, 377 [**6] (Tex. App.--Texarkana 2003, pet. ref'd) (citing
NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP'T OF TRANSP., DWI DETECTION AND
STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL at VIII-6). Slight variations
in the administration of the HGN test do not render the evidence inadmissible
or unreliable, but may affect the weight to give the testimony. Compton, 120
S.W.3d at 378.
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n1 The arresting officer was trained by NHTSA, is certified to perform the
HGN test, and relied on that training and materials in performing the HGN test
on appellant. Appellant has not challenged the officer's qualifications.
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The undisputed testimony establishes that the arresting officer did not administer
the HGN technique properly to appellant. Although the officer testified that
he administered all three parts of the HGN test to appellant, he admitted at
appellant's Administrative License Revocation (ALR) hearing that he testified
that he had administered only two out of the three required parts of the HGN
because he [**7] did not conduct the onset-of-nystagmus portion of the
test. The officer also admitted making several other misstatements concerning
the HGN test. n2 When confronted [*744] with the procedural errors
made in administering the HGN test that did not comply with the NHTSA guidelines,
the officer was asked whether there was a "valid HGN test" on appellant.
The officer replied that there was none.
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n2 The officer's ALR testimony and trial testimony differ concerning the number
of seconds it took to conduct the smooth pursuit and maximum deviation portions
of the HGN test. We recognize that slight deviations in the timing of the HGN
test have been determined not to affect the HGN technique or the admissibility
of the HGN evidence. Compton v. State, 120 S.W.3d 375, 378 (Tex. App.--Texarkana
2003, pet. ref'd). The officer also admitted that he made only one pass of
each eye rather than two passes of each eye during the HGN test and further
testified that this failure to make two passes of each eye was a violation
of the guidelines in the NHTSA manual. Cf. Quinney v. State, 99 S.W.3d 853,
858 ( Tex. App.--Houston [14th Dist.] 2003, no pet.) (holding that NHTSA's
manual only requires one pass of each eye).
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Under these circumstances, which show that the officer acknowledged that the
HGN test administered to appellant was invalid, we cannot conclude that the
HGN technique was applied properly, as required by Emerson. See 880 S.W.2d
at 768. Likewise we cannot conclude that the error was merely a slight variation
in the administration of the HGN test. See Compton, 120 S.W.3d at 378. We therefore
conclude that the trial court abused its discretion by allowing the officer
to testify that appellant had six clues on the HGN test because the technique
applying the HGN was improperly administered and resulted in an invalid test.
See id.)
In Compton, see above, there were “slight
variations” in the timing which the
court concluded were not significant. (no
scientific testimony regarding the validity
of this type of assessment by the court)
The problem with Compton is that the court
ignores how important it is for the officer
to hold the eye at maximum deviation for
at least four seconds to ensure that the
jerking is sustained. Otherwise the movement
can possibly be attributed to eye strain.
As stated in its publication, Horizontal
Gaze Nystagmus: The Science & The Law,
the National Highway Transportation Safety
Administration states “Law Enforcement
officers will not confuse HGN with any
other type of nystagmus if the HGN test
is conducted correctly.” www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html (this
is a very good article to read so that
you can be ready for what the prosecution
is being taught to do in the courtroom)
In Plouff v. State, 192 S. W. 3d 213 (Tex.
App. – Houston [14 th Dist.] 2006),
The appellate court demonstrated the great
lengths it would go to affirm the use of
the field sobriety tests. This case was
tried by Troy McKinney and Troy Walden
was the defense expert. Walden testified
that the tests were not administered properly
based upon his viewing of the video tape.
Cop said he did them the correct way. Appellate
court stated that the court (this was litigated
on a Motion to Suppress) apparently believed
Officer and then went on to say any error
was harmless. Continued reference made
to fact that “slight variations” not
important.
To develop a good record there must be testimony as to why a slight variation
is not acceptable.
In McClain v. State, No. 05-03-01785-CR,
2005 Tex. App. Lexis 760, an unpublished
opinion, the Dallas court of appeals was
asked to determine whether the trial court
abused its discretion in allowing a police
officer to testify regarding field sobriety
tests as a lay person and not as an expert.
The defense offered James Booker, a toxicologist,
to explain why FSTs are unreliable “in
many situations” and that certified
field sobriety officers undergo “very
specific” training in order to learn
the “the nuances” of administering
FSTs and the “clues” that are
sought. For example, a “lay person” might
construe not actually touching toe to heel
during the “walk and turn” as
a “clue” when a certified officer
would know to allow a “grace” of
a half inch. Booker testified that because
of the “very specific” training
received, a certified officer is more credible
than a “lay person”. Court
let cop testify as a lay person. Cop testified
that defendant had so many “clues” and
indicated whether he thought the defendant “passed” or “failed”.
Argument by defendant was that allowing
him to testify like this turned him into “expert” and
gave his credibility a boost. Court responded
that error, if present was harmless.
What is necessary now is for the defense
bar to prepare a case, with a very detailed
developed record, to challenge the ability
of the trial courts to take judicial notice
of the reliability of HGN testing as well
as its application in the specific case
on trial. This takes time, money and experts.
To successfully challenge FSTs, particularly
HGN, you must present expert testimony
that the use of FSTs to determine “intoxication” is
not scientifically validated. At most,
the tests are circumstantial evidence that
one may have used alcohol or may be intoxicated.
They are not evidence of intoxication!
In 1994 the Court of Criminal Appeals took
judicial notice of the reliability of HGN
testing. They used predominately, information
provided by the NHSTA and NITA, organizations
that are hardly objective. In 2002, after
an extensive pretrial hearing wherein experts
were called to support the defendant’s
contention that the FSTs are not reliable
indicators of intoxication, the court,
Justice Grimm of the United States District
Court for the District of Maryland, held
the following:
- The results of properly conducted SFSTs
may be considered for probable cause
at trial;
- The results of SFSTs cannot be used
to prove a specific alcohol concentration;
- There is a well-recognized causal connection
between the ingestion of alcohol and
exaggerated HGN;
- A police officer trained and qualified
to perform SFSTs may testify to his observations,
if properly administered, but may not
use value-added descriptions to characterize
the subjects performance, such as saying
the subject “failed the test” or “exhibited” a
certain number of ‘standardized
clues” during the test;
- If the government introduces evidence
of nystagmus, the defendant may bring
out either during cross-examination or
by asking the court to take judicial
notice of the fact that there are many
causes of nystagmus other than alcohol
ingestion; and
- If otherwise admissible, the police
officer may give lay opinion testimony
that the Defendant was Driving Under
the Influence, but he may not bolster
the testimony by reference to any scientific,
technical or specialized information
learned from law enforcement or traffic
safety instruction. United States v.
Horn, 185 F. Supp. 2d 530 (D. Md. 2002)
The court looked at all available information
regarding SFSTs, including studies that
were not available when the Emerson court
took judicial notice in Texas.
The pretrial hearing should include a
challenge to the “judicial notice” aspect
as well as to the proper performance of
the tests.
I would suggest counsel get a copy of
the studies performed that challenged the
reliability of the SFSTs along with critiques
of the methodology of the reliability tests
and attach to a motion to suppress so that
a trial court can read them ahead of time
and maybe take judicial notice of the studies.
I would also suggest calling an expert
on how things are “validated”.
Maybe a statistician to testify that validation
studies don’t work unless the tests
are performed exactly as prescribed every
time. If not, then the validation studies
are not applicable.
Additional References
http://forensic-evidence.com/site/Biol_Evid/HGN.html HGN
by Laine Means
http://www.california-drunkdriving.org/horizontal_gaze.html An
excellent resource for someone who is going
to cross-examine on HGN (Actually a list
of questions asked in a drunk driving case.)
Mimi Coffey’s Article in Voice for
the Defense, November 2004, pp16-20 DWI-Modern
Day Salem Witch Hunts
http://www.dcba.org/brief/marissue/2002/art40302.htm Very
well reasoned brief regarding field sobriety
tests and admissibility – great analysis
of U.S. v. Horn, 185 F. Supp. 2d 530 (
great case for the Defense and there is
some reasoning there we need to continually
reurge)
Columns:DWI: Part One: Essential Cases
To Know In Handling Challenges To Scientific
Evidence by Leonard Stamm 27 Champion 48
August 2003
Columns:DWI: (Part 2) The Psyhometrics
and Science of the Standardized Field Sobriety
Tests by Steven Rubenzer 27 Champion 40
June 2003
http://www.hawaii.gov/jud/ica21259.htm Exhaustive
review of case law in all 50 states regarding
HGN
http://www.michbar.org/journal/article.cfm?articleID=882&volumeID=67 Do “Standardized” Field
Sobriety Tests Reliably Predict Intoxication?:
Knowledge for drunk driving litigation
by Patrick T. Barone and Jeffery S. Crampton
for the Michigan Bar magazine
Comment: Walking The Line of Admissibility:
Why Maryland Courts should reexamine the
Admissibility of Field Sobriety Tests,
Rick M. Grams 34 U. Balt. L. Rev. 365
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