State v. Venessa Sarkisian-Kennedy, 227 A.3d 1007

Background

Officers stopped Venessa Sarkisian-Kennedy on Jan. 26, 2018, initially for suspected driving on a suspended license; during contact officers developed suspicion of DUI.
At the station Officer Samuel Morris administered field‑sobriety tests including horizontal gaze nystagmus (HGN); Morris believed defendant was moderately to severely impaired and based much of that opinion on the HGN.
Defendant declined a preliminary breath test (PBT) and refused the later evidentiary breath test; she pleaded guilty to driving on a suspended license and admitted a prior DUI (element of DUI‑2).
Trial court allowed limited HGN testimony (admissible only to assess the reasonableness of requesting an evidentiary test, not to prove impairment) without expert foundation, and admitted testimony that defendant refused the PBT as consciousness of guilt.
Jury convicted defendant of DUI‑2 and criminal refusal. On appeal defendant challenged (1) admission of HGN evidence absent expert foundation and (2) admission of PBT‑refusal evidence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Sarkisian‑Kennedy)	Held
Admissibility of HGN evidence absent expert testimony	HGN may be treated like other field sobriety tests and admitted without expert when offered to show reasonableness of an officer’s request for an evidentiary test; courts may rely on other jurisdictions’ analyses.	HGN is scientific; V.R.E. 702 requires expert foundation (Daubert analysis) before admitting HGN results.	HGN is scientific and not settled as reliable across jurisdictions; inadmissible without expert foundation. Trial court abused discretion in admitting HGN testimony. Reversed refusal conviction (because HGN substantially supported reasonable grounds), but HGN error was harmless as to DUI‑2 given the limiting instruction.
Adequacy of the limiting instruction restricting HGN usage to the refusal issue	The court’s limiting instruction cured any prejudice; juries are presumed to follow instructions.	The limiting instruction was ineffective because HGN went to the heart of DUI and the jury was not told why it could consider HGN for one count but not the other.	Limiting instruction was clear, prompt, and adequate; presumption that jury followed it stands, so admission of HGN was harmless as to DUI‑2. (Robinson, J., would have reversed DUI‑2.)
Admissibility of evidence that defendant refused the PBT	Testimony that defendant refused the PBT is admissible as evidence of consciousness of guilt and is distinct from numerical PBT results barred by statute.	23 V.S.A. § 1203(f) bars use of PBT “results” in court and that should include refusal; admission penalizes the statutory right and required a tighter chain‑of‑inference analysis.	Assuming arguendo the PBT‑refusal evidence was admitted in error, the error was harmless beyond a reasonable doubt given the strength of other admissible evidence (officers smelled alcohol, other field‑sobriety clues, refusal of evidentiary breath test). DUI‑2 affirmed; PBT‑refusal ruling not decisive to outcome.

Key Cases Cited

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (federal gatekeeper standard for scientific expert testimony)
USGen New Eng., Inc. v. Town of Rockingham, 862 A.2d 269 (Vt. 2004) (Vermont applies Daubert factors)
State v. Kinney, 762 A.2d 833 (Vt. 2000) (trial courts may rely on other appellate decisions only when those analyses are complete and persuasive)
State v. Forty, 989 A.2d 509 (Vt. 2009) (trial courts must not abdicate evidentiary gatekeeper role)
State v. Gray, 552 A.2d 1190 (Vt. 1989) (officer may request field sobriety tests based on articulable facts)
State v. Rifkin, 438 A.2d 1122 (Vt. 1981) (lay witnesses may opine on sobriety from personal observation)
State v. Murphy, 953 S.W.2d 200 (Tenn. 1997) (HGN differs from other field sobriety tests; jurors need scientific basis explained)