*1 A047194, Dist., Div. Five. A047912. First Nov. 1990.] [Nos. PEOPLE, THE Plaintiff and Respondent, OJEDA, Defendant and Appellant. PEDRO CORTEZ [Opinion partial publication.*] certified for Court, 976.1, 976(b) through parts II IV are Pursuant to California Rules of rules published. not ordered *2 Counsel Paoli, by the for Defendant Appeal,
Leo under Court appointment Appellant. General, B. Chief Iglehart, Richard Attorney
John K. Van de Kamp, General, Attorney Attorney Sugiyama, John H. Assistant Assistant Beatus, General, Attorneys W. and Morris Grove Christopher General, Plaintiff and Respondent.
Opinion convicted, in a LOW, Ojeda Pedro was No. 2746 Cortez P. J.In alcohol, trial, driving and of felony under within seven higher, prior alcohol level of .10 or with three violations Code, 23152, Ojeda In years (a), 23175). subds. No. (Veh. (b), § *3 deadly a with a by weapon (Pen. convicted of assault Code, 243.4, battery (Pen. and no contest to sexual (a)(1)), pleaded by allowing arresting He the trial erred the officer (a)). contends court test, a and testify gaze as to the results of horizontal nystagmus violations after prior its case on allowing prosecution reopen We affirm. jury. submission to which involuntary eyeball, movement of the
Nystagmus rapid horizontal, vertical, Ann. Medi may rotatory. (The be or Sloane-Dorland inability eyes An of the to maintain visual cal-Legal Diet. p. words, they (in jerking fixation as are turned from side to side (State or HGN. Mur bouncing) gaze nystagmus, is known as horizontal believe phy investigators 451 N.W.2d Some alcohol (Iowa and of HGN and causes frequency amplitude intoxication increases to occur at a from the forward direction. angle HGN smaller deviation 1332- (See State Bresson Ohio St.3d N.E.2d defendant’s vehicle at Deputies Ringen stopped Sheriff’s Houlihan erratically. him There was a they strong about 12:15 a.m. after saw eyes Deputy smell alcohol on breath and his were bloodshot. defendant’s tests, sobriety administered five field four of which defendant failed: Ringen forward on the of one hand stand- counting fingers (failed); and backward one- (passed); (failed); balance on both feet heel-to-toe balance ing together On the basis of “eye-gaze nystagmus” (failed).1 balance legged (failed); Ringen impaired concluded defendant was performance Deputy 1:30 a.m. intoxication. A blood taken at sample defendant’s .10. contained an alcohol level of that he received hours’ Ringen approximately testified had of the test. He
training nystagmus administration interpretation every time he driver or he believes stops pedestrian administers experi- found through under the of alcohol and has drugs, test is under determining ence that the is an effective method of someone by hav leg. Deputy Ringen Defendant has one he took account artificial testified that into ing good leg. balance defendant on his hold test he directs administer the of alcohol. To the influence eyes. her with his or follow a stationary pen and to her head his or if, smoothly track the eyes pen subject’s to see if the then watches deputy side. from side to move contrary, they “bounce” on the as to the results Ringen by Deputy objected Defendant scientific expertise that it ground required could that Deputy The court agreed did not have. which the deputy nystag- the basis of the alcohol on level of blood testify to particular basis, ruled test, but its attempt explain physiological and could not mus and that he in defendant phenomenon he could observed to be under known people observed the same frequently phenomenon has influence of alcohol. *4 eye move- the test: defendant’s The then testified to the results of deputy further in bouncing and there was jerky, ment as he followed the was pen reactions, on relying these and eye the at the extremes of movement. From that defend- formed the opinion his and the “training experience,” deputy ant under the influence of alcohol. was admitted because the testimony
Defendant the was argues improperly blood-alcohol lay who not an on give opinion was witness deputy in the enjoy general acceptance level and because the HGN test does not HGN in the latter is the claim that community. argument scientific Implicit “ the ‘gen- is a “new scientific which must therefore meet test of technique,” ” Kelly belongs.’ (People eral field which it acceptance particular 24, 144, omitted; 1240], italics (1976) 17 Cal.3d Frye v. United States Cir. 293 F. (D.C. 1923) App.D.C. “new Attorney 34 A.L.R. The General counters that HGN is not a that, is, Kelly/Frye “general and if it it meets the technique” standard. acceptance” by the Kelly/Frye par-
This case does not the discussed present problem testimony the on object deputy’s grounds ties. Defendant did not to He ob- technique lacking general acceptance. HGN was novel scientific jected only personally qualified, on the that the was not grounds deputy is, with intoxication. did have the medical to correlate HGN expertise, the extent that the objection deputy’s The trial court overruled the to HGN, limited the depu- with and was based on his own opinion experience testimony based on ty testimony. The court did not decide whether to such meet, meet, to required scientific studies of HGN would or would line drawn deputy overstepped criterion. To the extent as “training” to an based on his ruling testifying the court’s by defendant’s the claim of error was waived well as his own experience, Code, only question pre- that time. The object (Evid. failure § draw ruling deputy of allowing sented is the correctness the court’s own upon experience an as to defendant’s intoxication based HGN test. knowledge, “A as an if he has expert special person skill, him an expert sufficient to experience, training, qualify education Code, 720, testimony (Evid. to which his relates.” subject § words, and is not subject,” in other “is relative (a).) Expertise, Wit- (1 or certification. rigid according classification to formal education testified, kin, (3d p. 454.) Cal. Evidence ed. effect, of His as an on HGN as an indicator of the influence alcohol. expert He had ad- testimony opinion. met the minimum requirements expert intoxi- every stopped being ministered the test to person suspicion cated, His it was a reliable indicator alcohol intoxication. had found certainly thus based on his own was special experience, beyond common “sufficiently (Evid. (a).)
would the trier of fact.” assist The HGN as an effect of observation of in a its person interpretation toxi- necessarily physiology, do not require expertise intoxication effect can be observed cology, other scientific field. *5 mechanical, any At least without electronic or chemical kind. equipment case, no medical form it more simple presented requires tests, sobriety as the training than administration of the other field such one-legged balance. daily with hardly
It is officers who deal intoxicated surprising police intoxication, at effects of recognizing physical become persons and that learn to effects more subtle than those perceive somewhat A to the amateur. This does not make them scientists. scientific apparent rely study systematic experimentation, typi- of HGN would on would between HGN and cally some attempt quantification relationship from not generalization experience, alcohol. drew Deputy from experimentation, attempt quantify relationship did not observed.
We are in accord with courts of other states which have held those than familiar sobri inherently HGN is more “scientific” the more field not ety admissibility tests. horizontal principal obstacle “[T]he name.” be its gaze nystagmus pretentiously (State test, “The do the gaze nystagmus 451 N.W.2d at Murphy, p. supra, tests, sobriety only used field obser commonly requires personal not objective vation of it. It is in nature and does administering the officer
409 80 30 Ohio Nagel (1986) App.3d (State require expert interpretation.” contra, Ore.App. (1987) State v. Reed 286]; [732 N.E.2d P.2d Ariz. 269 Court State v. 68]; Superior 60 A.L.R.4th Supp. Cal.App.3d v. Loomis solely on Defendant relies had a the defendant testified that 767], There the officer than 20 of less point from the center reaction at a deviation between level was that his blood-alcohol and concluded therefrom percent, held the .15 .16. at (Id., appellate department p. be based possibly conclusion could because improper part “[t]hat .” We that with 5-6.)2 agree . . . (Id., pp. the officer’s own perceptions to make a officer is not police out a of scientific showing expertise level. Rin HGN and blood alcohol numerical correlation between however, blood alcohol as to defendant’s did not state gen, level, value. know the exact numerical much less purport intoxication, indicator of alcohol
We not hold that HGN is a reliable do standards, or that nonscientists that the HGN test meets of blood alcohol. Nor do to correlate HGN with a level particular sobriety test an with a field experience we decide extent of personal We on intoxication. officer must have order to use to form based on his may testify, that an only experience hold officer with sufficient HGN and alcohol or her own with the between relationship intoxication, was not under the to an was or influence.
II-IV
V 1989, 11, affirmed. In entered is In No. A047194 the judgment September 22, 1989, is modified as entered November judgment No. A047912 in credit his term No. days against follows: defendant is allowed 276 22, 1989, is and that term served. The of November judgment is deemed affirmed. otherwise J.,
King, concurred. 2 Kelly/Frye criterion of shown to meet the The Loomis court also held HGN had not been 6-7.) community. (Id., pp. explained above we do general acceptance in the As question not reach that here. ante, page See 404. footnote
410 result, majority’s HANING, J. disagree in but I concur an opinion, in the of testify, that the officer was form conclusion “An is an test. (HGN) opinion the horizontal gaze nystagmus about infer- of law of ence facts One of the fundamental theories from observed. rule, evidence, ordinarily must is that witnesses opinion expressed court. jury facts, inferences or conclusions testify leaving [Cita- course, are, Witkin, 1986) 447.) ed. There (3d Cal. Evidence (1 § tions.]” when those situations such as those witnesses expert exceptions, too subtle to enable lay witnesses “are too by complex facts observed manner. accurately convey any court or them them to 453, 459 Authority (Manney Housing (1947) Cal.App.2d v. [Citations.]” etc. Dist. County v. Flood Control 69]; P.2d Chatman Alameda [180 Code, Evid. 257]; Cal.Rptr. Cal.App.3d § only if have testify as experts special Witnesses skill, or education sufficient training, qualify knowledge, experience, (Evid. relates. them an to which their Code, 720, may was intoxi lay testify A witness that (a).) person § but experts, that is not restricted to cated because this is the sort it may expressed laypersons. is of common be knowledge sufficient 154]; Ravey 702-703 (People Cal.App.2d also, 639, 643, 69]; fn. 3 see Garcia (1972) Cal.App.3d However, Code, not render an (a).) lay Evid. witness is on a scientific that a was intoxicated based person Witkin, Evidence, §471.) test. Cal. cit. (1 op. supra, In a physiological instance the officer testified to observations of this are irrelevant eye movement. Those observations phenomenon—appellant’s they are indicative that case unless it is established on the record that only of alcohol. The being examined is under person reliable indicator of being evidence in this record that the HGN is a alcohol from the officer himself. submit under the influence of came sufficiently common that it the HGN is not within phenomenon (See, readily e.g., as an indicator of intoxication. accepted understood Evid. of the effects alcohol explanation Consequently, only eye expert. movement should given not, not, did as to the level of The officer could *7 .008 .001 percent, Is .10 .08 necessary produce percent, percent, HGN. anyWill amount of (lesser some or amount? percent, greater) other substance, as tobacco anyWill such ingested HGN? produce commonly drinking used alcoholic (both persons caffeine of which drugs HGN? it be produced prescription Can beverages) produce so, muster; Does the HGN fatigue? Kelly/Frye1 this record does pass does, not establish that it and the officer is not to establish that short, fact. In there is no evidence in the record to establish that the officer render an about the of alcohol relationship inges- tion and HGN. the admission of that was error. Consequently,
I am puzzled by majority’s statement that do not hold that “[w]e HGN is a reliable indicator of alcohol intoxication that the HGN test [or] ,” meets standards . . . yet they conclude that the un- trained officer is qualified to render a scientific opinion contrary. This analysis simply eludes me. find the v. rationale of Loomis Cal.App.3d Supp. Cal.Rptr. more persuasive. 767]
In summary, I conclude that
the trial court erred in admitting the
officer’sHGN opinion, but that the error was harmless in
light
blood-
alcohol evidence and other evidence of
under the influence. The
HGN opinion was unnecessary to the
case.
People’s
1 People Kelly
Cal.Rptr.
1240]; Frye
Cal.3d
549 P.2d
United
(D.C.
States
Cir.