State v. Hullinger

2002 SD 83 Dakota, Plaintiff of South

STATE Appellant,

Timothy HULLINGER, Defendant Appellee.

No. 22132.

Supreme Dakota. Court April

Considered on Briefs 2002. July

Decided lane, oncoming

the Camaro traveled jerked then back to the lane and fog Ludwig crossed the line. activated his emergency lights and the driver increased speed his as he traveled southward on Highway approximately 83. He continued pulling 1 to miles before to the road- 1-1/2 stopping. side and vehicle, [¶ 3.] driver of Timo- thy Hullinger, provided his driver’s license registration Ludwig’s request. Ludwig Hullinger’s eyes noted were blood- watery shot and and the odor of alcohol Hullinger emitted from his vehicle. When spoke, speech Ludwig noted his Ludwig exрlained stopped slurred. he Hullinger for erratic and asked patrol him to have a seat vehicle and General, Barnett, Attorney Gary Mark perform then to some field tests. General, Campbell, Attorney R. Assistant Ludwig Hullinger staggered noted that Maher, Stanley County Thomas P. States he walked. Pierre, Dakota, At- Attorney, Fort South torneys plaintiff appellant. for Hullinger correctly al- recited the phabet Ludwig again noted his slurred Adam, May, Brent A. Gerdes Wilbur speech. Ludwig next administered the Pierre, Dakota, Attor- Thompson, & (HGN) horizontal gaze nystagmus neys appellee. for defendant required Hullinger keep eyes which his object, in pen, on an this case a while GILBERTSON, Chief Justice. Ludwig slowly through space. moved it 23A-32-5, Pursuant to SDCL Ludwig Hullinger noted could not smooth- petitioned interlocutory the State for ly object. eyes follow this His showed appeal sup- magistrate from a court order nystagmus at maximum deviation and an gaze of a horizontal pressing nystagmus prior degrees. onset of to 45 (HGN) granted test. We Hullinger was then asked to count back- petition. impression raises first wards from 1988 to 1969. He was able to admission of the HGN issues years correctly, recite these but slurred test in for under the prosecutions speech again noted. in this state. We reverse and influence remand. performed All of these were patrol

inside the Ludwig vehicle. When FACTS AND PROCEDURE Hullinger perform asked outside some tests, Stanley Hullinger March field [¶ 2.] On stated County deputy Ludwig problem sheriff David ob- he had a with one of legs driving slowly why perform served a red out of asked he Camaro needed to more Fort Ludwig Ludwig Pierre. noticed its driver tests. then (PBT) touch breathalyzer registered the curb and cross the center line over (BAC). several bridge, times. At the Bad River .10 blood alcohol content under suits and blood alcohol concentration. Hullinger He arrested addition, copies introduced Hullinger pro- refused to the influence. these test studies into evidence. sample transported and was vide a blood objection had no to their admis- license was con- jail where his driver’s sion. 30-day tem- fiscated and he was issued permit.

porary driving Following hearing, the court excluding entered an order evidence of the charged Hullinger with at trial on that it grounds HGN test was in under the influence violation of probative irrelevant and -that its value was 32-23-1(2) and careless SDCL substantially outweighed'by danger SDCL 32-24-8. It later violation of prejudice unfair to the defendant or that it complaint charge to add a amended its would confuse the issues or mislead the driving in 32- reckless violation SDCL jury. large part, the court based its Following charges, the initial Hul- 24-1. conclusion on the fact that linger filed a motion to exclude evidence charged with under the influence test, claiming Deputy Lud- 32-23-1(2) in violation of and not SDCL expert pre- was not an and should be wig percent charged having with a BAC of .10 testifying opinions about his cluded from 32-23-1(1). greater or violation of SDCL regard to his adminis- or conclusions suppression claims the order tration of this test. the trial abuse of court’s discretion ruled that no witness The court specifically three raises issues: tеstify Hul- permitted would be about magistrate 1. Whether the court was performance on the test un- linger’s clearly finding erroneous in that a presented til the sufficient founda- positive HGN test indicates the justify tional evidence to introduction of presence of .10 alcohol pretrial testimony. hearing, such At the Hullinger’s blood but does not indi- 1) presented the State three witnesses: cate whether he is under the influ- Farnsworth, Monte director for ence alcohol. Highway Safety at the Divi- the Office of 2. ad- Whethеr evidence of Investigation sion of Law En- Criminal ministered HGN the results of 2) Deputy Training Academy; forcement presence nys- which indicate the 3) Ludwig; Larry Menning, op- Dr. tagmus, is relevant to whether a expert tometrist and witness. Farnsworth person is under the influence of alco- testified that he is a standardized field hol. sobriety test instructor who has instructed

approximately police officers in admin- magistrate 3. court was Whether istering analyzing the HGN test and its clearly finding pro- erroneous in results. He further testified these positive bative value of a HGN test methods, their standardization and relia- by unfair substantially outweighed issues, ad- bility. Ludwig regarding testified prejudice, confusion of the ministering Hullinger, the test its re- misleading jury.

sults, experience in and his AND ANALYSIS DECISION

administering Menning the test. Dr. testi- of review regarding fied the effects of alcohol on the Our standard system, grant for a trial court’s or denial of a recognized central nervous studies scoring suppress motion to is abuse of discretion. HGN test and its ¶ 8, Anderson, criteria, 1996 SD and correlation of HGN test re- State v. peated eye. By An abusе of discretion is with the other observ- 42.

N.W.2d (1) purpose ing inability eye of each to track an end discretion “exercised (2) smoothly, pronounced movement clearly against reason justified by, and at maximum nystagmus deviation and Gesinger, 1997 SD and evidence.” State Further, angle at an it onset that, degrees than 45 in relation to the less well settled point, the center officer can estimate fact from a findings A trial court’s whether the driver’s blood con- alcohol suppression hearing upheld must be un- (BAC) legal tent exceeds the limit of .10 clearly less are erroneous. This percent.’ ago ... long as 1977 the [A]s clearly function under the erro- Court’s Traffic Highway Safety National Admin- standard is to determine whether neous istration, Department Transpor- U.S. the decision of the lower court lacks the tation, along concluded that HGN evidence, support of substantial evolves one-leg walk-and-turn and stand tests applicable from an erroneous view of the testing were the most effective roadside whethеr, considering law or entire impaired Psychophy- to detect drivers. record, a we are left with definite ‍​‌​​​​​‌‌​‌​‌‌​​‌‌‌‌​​​‌​​​‌‌‌‌​​​‌​​​‌​​‌​​​​​​‍and Arrest, sical Tests for DWI No. DOT- firm conviction that a mistake has been (June 1977). HS-802-424 determination, making made. In this light we review the in a State, 900, most Cooper v. 761 N.E.2d 902-03 favorable to the trial court’s decision. (Ind.Ct.App.2002). Belmontes, v. 2000 615

State SD previously ap We decided an (internal 634, N.W.2d 637 citations omit- peal which an HGN test was adminis ted). part sobriety testing, tered as of field how admissibility ever its issue. Many recently state courts hаve (S.D. Meek, 48, State v. 444 N.W.2d 50 admissibility addressed issue 1989). Meek, interlocutory appeal an HGN evidence in under the influ- State, by the we ruled that the verbal and Appeals ence cases. The Indiana Court of dexterity field test results should recently provided explanation this of HGN suppressed against not have been the de testing procedures: and its field fendant’s claim of his Fifth Amendment ‘Nystagmus involuntary jerking is an right against self-incrimination. Unlike eyeball. involuntariness differ- [The case, present the trial court in Meek entiates it from other field suppress testimony did not concerning the jerking may aggravated be tests.] gaze nystagmus test or the officer’s obser by system depressants central nervous concerning physical vations Meek’s charac barbiturates, such as alcohol or [citation appeal ruling. teristics. Meek did not this gaze nystagmus Horizontal omitted]. notes, As the State the issues raised in the inability eyes to maintain visu- present appeal impression are first issues al fixation as are turned to the side. in South Dakota. In the HGN test the driver is asked eye cover one overwhelming majority focus other on object (usually pen) by jurisdictions having held the officer addressed the issue eye permit the driver’s level. As the officer the admission of evidence of HGN object gradually moves the involving charges out of the in criminal trials ear, driver’s field of vision toward his he while intoxicated. Klentz v. State, eyeball watches the driver’s (TexCtApp, Apr. detect 2002 WL 534156 State, 11, 2002); involuntary jerking. The test is re- Decker v. 2002 WL

257 Forrest, (Alaska 2002); 129, State v. Or.App. 174 Apr.10, 25 P.3d Ct.Aрp., 531136 State, Krause, (2001); White v. 174, v. Ark.App. 392 73 State 309 Mont. Decker, (2001); v. 264, v. State Van (2002); 42 584 State 2002 WL S.W.3d 493 2002); Kirk, (2001) 215, (OhioCt.App., Apr. 306 Mont. 32 P.3d 735 499416 Director, DOT, (erroneous ND Henderson v. 640 introduction of HGN without v. v. (N.D.2002); harmless); Fletcher Sha Shaw foundation was 714 State, han, (Del.Super.Ct., (Fla.Dist.Ct.App. Mar. 783 So.2d 1097 2002 WL 499883 Pjura, Doriguzzi, v. 06, 2002); 2001); Conn.App. N.J.Super. 334 68 (2000) (HGN (2002); Cooper, 760 A.2d 336 is scientific 789 A.2d State, v. 900; Kirkland that must meet standard of ad N.E.2d Ga. (2002) (officer’s Smith v. App. missibility); P.3d 931 S.E.2d (if (Wyo.2000) what 6 testimony as to his evidence establishes person’s points test indicate about tests were admissible); Peo qualified person, the foundation is suffi

level of intоxication Herring, in an ple Ill.App.3d cient for admission administrative Baue, (2002) (re hearing);1 Ill.Dec. 762 N.E.2d 1186 258 Neb. Frye hearing); (citing 607 N.W.2d 191 cases in

versed and remanded Pittman, Village Plover v. jurisdictions having approved other ‍​‌​​​​​‌‌​‌​‌‌​​‌‌‌‌​​​‌​​​‌‌‌‌​​​‌​​​‌​​‌​​​​​​‍state 638 N.W.2d Bebb, (Wisc. 2001); Ct.App. use of HGN under the influence cases); 1, Baity, State v. (Hawai’i.Ct.App., Aug.22, 953735 140 Wash.2d 991 2001 WL Vanderlofske, v. 648, (2000); Duffy, People v. 2001); P.2d 1151 State 146 N.H. 778 (N.H.2001) 182, re 186 Misc.2d 717 450 (reliability hearing A.2d 415 N.Y.S.2d (N.Y.Co.Ct.2000) (administration Tyler, v. admission); State proce quired before 1009, of Wash.App. generally 2001 WL 789730 dures and results HGN test 107 Jul.13, 2001); Karamychev accepted community op within scientific (Wash.Ct.App., Cоlumbia, 772 A.2d 806 (D.C. v. Dist. as reliable indicator of intoxi tometrists 2001) cation, if (arresting qualified officer was thus results are admissible officer properly who test was testify expert regarding as an the results scoring trained and administration and of HGN test he administered to defendant Bradley, State v. accepted sobriety); to determine the test was accordance (court v. Tor State procedures); (Mo.Ct.App.2001) techniques act 57 S.W.3d 335 res, (N.M.1999) 20, 127 N.M. 976 P.2d 20 allowing ed its discretion in officer within (results HGN); testify expert concerning of HGN constitute sеienti- as State, 145, (1995); Md.App. 60 106 664 A.2d 1. The Smith court observed: State, (Tex.Crim.App.), context, Emerson v. 880 S.W.2d 759 significant In the criminal num denied, 931, t. 513 U.S. 115 ber of courts have held that admission of cer S.Ct. tests, 323, (1994); including gaze People the horizontal L.Ed.2d 284 130 appropriate long 538, is as a Buening, Ill.App.3d Ill.Dec. v. 229 170 techniques used foundation as 10the 542, denied, (1992), appeal N.E.2d 1222 592 training, experience, and the officer's 634, 806, 602 N.E.2d 146 Ill.2d 176 Ill.Dec. ability to administer the test has been laid. (1992); City v. 460 State ex rel. Hamilton 225, 191, Ito, v. 90 State Hawaii 514, Mesa, City Ariz. 799 Court 165 State, (1999); 201 Ballard v. 955 P.2d 931 (1990); Murphy, v. 451 P.2d 855 State 1998); State, (Alaska Ct.App. Zimmerman v. 1990); (Iowa State v. Arm N.W.2d 154 1997); (Del.Super.Ct. v. 693 A.2d 311 State strong, (La.Ct.App.), de 561 So.2d 883 writ (Me. 1997); Taylor, 694 A.2d 907 Hawkins v. nied, (La.1990); 568 So.2d 1077 State v. Ga.App. 223 476 S.E.2d 803 Clark, (1988). 762 P.2d 853 234 Mont. (1996); People Berger, Mich.App. v. 217 P.3d at 11 (1996); 551 N.W.2d 421 v. Schultz that must meet the standard and Daubert fic evidence tests admission scienti- reliability in fic evidence.3 evidentiary articulated Daubert); Murphy, v. 953 S.W.2d State Hullinger argues that the State (Tenn.1997) (HGN evidence must be “ham-strung” by testimony of its through expert testimony); offered witness, expert Menning. Dr. This ‍​‌​​​​​‌‌​‌​‌‌​​‌‌‌‌​​​‌​​​‌‌‌‌​​​‌​​​‌​​‌​​​​​​‍wit- Berger, Mich.App. v. N.W.2d ness testified that HGN shows a correla- (1996) (only required foundation is that BAC, opinion tion to further gave no test was conducted and officer proof person on its that a was “under the it); qualified City to administer Salt Lake influence” of alcohol. The trial court made (Utah Garcia, Ct.App. v. 912 P.2d 997 finding this of fact # 5: Joehnk, 1996); People Cal.App.4th upon testimony Based of the State’s Cal.Rptr.2d (Cal.Ct.App.1995); expert, correctly the HGN when (Minn. Klawitter, 518 N.W.2d 577 administered, presence indicates the 1994); Sullivan, 310 S.C. .10 of alcohol in the test sub- (S.C.1993) (testimony relating ject’s S.E.2d 766 blood but does not indicate wheth- person to HGN test was when used in admissible er is under the influence of conjunction with other field alcohol.

to establish evidence of driving under the misrepresenta- Our review shows this is a influence); Gleason, State v. 123 Idaho testimony. tion of the gave The witness (1992); Superior 844 P.2d 691 person no whether the would be Court, 269, </proga@dd>718 149 Ariz. under the influence as he did not feel (1986) (one P.2d 171 of the first cases to qualified do so. He did not state that a test). hold HGN satisfied This is not result, positive i.e. one which listing. permit a conclusive Most courts the defendant fails four of points, the six the admission of HGN test evidence does not indicate whether a un- arresting officers who adеquate have been der the influence. This mistake of fact ly trained in conducting the test and can the trial court became the basis for its particular show that the test in the case at conclusion. court believed the differ- bar was conducted substantial accor ence significant Hullinger was because was dance with that training. The Nebraska charged driving with under the influence Supreme recently 32-23-1(2) Court observed that this in violation of SDCL and not majority pronounced was the rule and it with with a percent BAC of .10 or Baue, sound. 32-23-1(1). 607 at 205.2 N.W.2d These greater in violation of SDCL courts have found that use of The court stated it began analysis its gained has acceptance in the general evidentiary scien issues with this difference tific community Frye and satisfies both the in mind. (S.D. 1994) factually Hullinger’s

2. Baue is departed similar to case 484 from the former in that States, Baue failed the PBT and HGN but Frye rule of v. United 293 F. 1013 passed alphabet counting backwards (D.C.Cir.1923). "The Daubert standard re test, as well as two additional outside field quires the trial court to ensure that an ex take, did not the one- pert’s testimony both ‘rests on a reliable foun legged stand and the walk-and-turn tests. dation and is relevant to the task at hand. 607 N.W.2d at 196. scientifically Pertinent evidence based on val ” principles satisfy id will those demands.' Dakota, 3. adopted we the Daubert 131, ¶ 21, Loftus, 1997 SD 573 Inc., test from Daubert v. Merrell Dow Pharm. 167, N.W.2d 579, 509 U.S. 113 S.Ct. 125 L.Ed.2d Hofer, 469 in State v. 512 N.W.2d

259 great is an indicator of .10 or differences be- fled Regarding the physical subdivisions, er and which demonstrates recently we ob- BAC tween these abnormalities, relevant evidence to de served: was whether a defendant termine 32-23-1(1) the mere- state Under SDCL “Any evidence tend under the influence. prove that a ly must an accused with the commis ing to connect control of a vehicle physical in actual or probative.” of a crime is relevant and sion concen- blood-alcohol prohibited with a ¶ 116, 10, Bunger, v. 2001 SD State percent. 0.10 Under SDCL tration of Anderson, (citing N.W.2d State 32-23-1(2), is whether query 671). 45, 97, N.W.2d 2000 SD an alco- ‘under the influence of person is trial, oppor would havе the At a defendant recognized beverage.’ We have holic present re tunity to cross-examine and to only all well phrase covers ‘not that this evidence, any, if of other reasons for buttal conditions easily recognized known apart from physical those abnormalities intoxication, any ab- degrees trial court ingestion.5 alcohol condition physical mental or normal # clearly finding erroneous in its of ‍​‌​​​​​‌‌​‌​‌‌​​‌‌‌‌​​​‌​​​‌‌‌‌​​​‌​​​‌​​‌​​​​​​‍fact indulging any which is the result of testimony. on the witness’ More based liquor and which dеgree in alcoholic over, test results exclusion that clearness of deprive tends to him of between the two he based on distinction of himself which intellect and control statutory “evolves from an er v. Mas- subdivisions possess.’ otherwise would teller, applicable view of the law.” Bel 198 N.W.2d roneous 86 S.D. montes, (1972); Vandergrift, supra. supra; 3-10-3. Intoxi- See SDPJI disorder which temporary cation is a court, findings The trial physical symp- itself manifests Deputy Ludwig # and # found that Frankel, Lawyers Charles J. toms. 3B qualifi not have sufficient did 17.14(b)(1983). § Cycloрedia, Medical test or cations to administer the HGN (2), 82-23-1 Under SDCL focus The record shows analyze its results. this intoxi- produced by the condition hours of formal train Ludwig received six cation [.] Investiga ing at the Division Criminal ¶5, 7, 558 Vandergrift, 1997 SD the HGN test and addition tion added); (emphasis N.W.2d by two law enforcement al field (S.D.1977). Gerdes, enforcement He has been a law officers. administered the per officer since 1995 and has Hullinger refused to [¶ 15.] fifty along times provide approximately test outside field tests or HGN form draw, however, sobriety tеsts. PBT with other standard field registered a blood tests, at fifty that of those Certainly positive a He testified percent over .10 BAC.4 result, persons passed and were not Menning thirty Dr. testi- least test HGN statute, weight by of alcohol in the blood By percent BAC based on a Percent .10 blood, analysis or other upon milligrams chemical breath of alcohol shall be based gives presumption bodily rise to a substances per cubic centimeters of whole blood or 1.0 being SDCL 32-23- under the influence. deep lung breath. 2100 cubic centimeters of 7(3) provides: added). (emphasis was at that time ten hundredths If there weight percent by approximately of alcohol in the Menning or more that 5. Dr. testified blood, presumed it shall he that defendant's percent population has from was under the other causes. influence of defendant intoxicating liquor. testing years violation of SDCL 32-23-1. for five and trains them ac- arrested for that he has not observed cording Highway He also testified to National Traffic Safe- (NHTSA) registered who with anyone ty fail the test Administration standards. percent Ludwig .10 BAC. ex- Although Ludwig may less than not be “highly presence four of six plained experienced,” that skilled or there was no evi- of at least four points, presented or the failure training dence that his did not test, indicates a level parts comply six BAC with NHTSA standards or that his Here, greater. Hullinger or of .10 Hullinger administration of the test on part of the test and scored six failed each in accordance with those standards. points jurisdictions out of six. Some state court that have issue, above, examined this as noted have findings The trial court’s concluded that HGN evidence is admissi- Ludwig did not have sufficient or ble if the officer has adequately been administering in experience the test trained to administer the test the test erroneous, comport does not clearly was administered in accordance with that for admission of HGN test standard Zivcic, training. State v. 229 Wis.2d majority juris- court results in the state (Ct.App.1999); 598 N.W.2d 565 State v. and, ours, dictions in a rural state such as (Me.1997) (use Taylor, A.2d limit- problematic аpplication. in its would be ed to support probable evidence to cause # Finding specifically of fact states that: to arrest without a warrant or as circum- upon Deputy Ludwig’s testimony Based intoxication); stantial evidence of Schultz ability judicial and the Court’s take MdApp. 664 A.2d 60 experience of the relative of ar- notice (1995); City Fargo v. McLaughlin, 512 Hughes Stanley in resting officers (N.D.1994); Murphy, Dakota, Counties the Court (Iowa 1990). minority 451 N.W.2d 154 A Ludwig Deputy high- finds that was not jurisdictions require additional founda- ly experienced skilled administer- tional the correlation ing analyzing the results of the between results and alcohol im- HGN test. Helms, pairment. 348 N.C. area, rural there are not (N.C.1998) (reversible 504 S.E.2d 293 er- likely 20-year to be an abundance of veter- foundation); ror without Mmphy, an have officers who administered the test (test “scientific, 953 S.W.2d 200 technical 1,000 Ludwig times. testified he received specialized or other knowledge” and must six hours of witness). through expert be offered This analysis Academy at the DCI and received additional foundational pre- evidence was training with additional field two law en- expert sented to the trial court He forcement officers.6 further testified suppression witness at the hearing. he that since 1995 has conducted the test The trial court abused its fifty times. He testified that in excluding he understood the discretion this relevant evi indicated test before he began Hullinger performed prosecution and that dence for driving the under correctly. test The director of the influence in violation training at of SDCL 32-23- Farnsworth, 1(2). Academy, the DCI testified reverse proceed We and remand for training that he ings opinion. has been officers HGN consistent with this HGN Compare troopers with officer in Nebraska Nebraska state receive 24 hours of Baue, sobriety training, as testified to in 607 N.W.2d at 202 field test of which 12 hours (state patrol testing.) director of testified that are devoted to HGN test, finger-to-nose obtain as a reli- and the modified nationally recognized is testing from intoxication legitimacy if it can be their effects of sobriety test and field able рropositions adminis- knowl- properly test was on of common that the based shown officer, evidence v. O’Key, trained such 321 Or. by edge.” tered (1995) (internal jury for a to consider citation omit- be admitted P.2d should ted). of the other along knowledge being at with evidence The common “that trial sobriety coordination, administered field tests accepted excessive alcohol can cause balance, problems.” this state. mental agility and Doriguzzi, N.J.Super. KONENKAMP, and SABERS [¶ 20.] (N.J.Super.Ct.App.Div.2000) A.2d Justices, concur. (holding test and must HGN is scientific standards). be- meet The correlation AMUNDSON, Justice, concurs [¶ 21.] amount of con- tween the alcohol a specially. angle and the of the onset of the sumes ZINTER, Justice, disqualified. knowl- nystagmus is mere common AMUNDSON, spe- (concurring Justice Although no is edge. special equipment cially). to administer the HGN and required procedure holding object an a cer- the con- conference judging from the eye tain distance recog- cludes, nationally “HGN eye responses does not angles certain and if sobriety field test a reliable nized as technical, underlying principle the sound properly it that the test was can be shown consumption nystag- correlating alcohol ‍​‌​​​​​‌‌​‌​‌‌​​‌‌‌‌​​​‌​​​‌‌‌‌​​​‌​​​‌​​‌​​​​​​‍officer, such evi- by a trained mus is technical. jury to for a should be admitted dence of the along at trial consider Furthermore, there is still dis- adminis- accepted sobriety field tests other the appropriate angle about agreement I that disagree in this state.” do not tered nystagmus, accuracy of thе onset of evidentiary hoops have once nystagmus, and other causes of cleared, admitted tests can be been HGN rhythm the body’s the effect of circadian evidence, impor- I it do believe into Witte, 1119-20. nystagmus. 836 P.2d at ad- are tant to ensure court noted: One mitted. of the arresting ‘reading’ officer’s courts HGN tests Most treat dupli- test cannot verified be evidence, than common rather scientific party.... independent cated of a knowledge, require presentation recognized of error margin The test’s admission, and before proper foundation criminal con- provides problems as to Witte, the same. we do See State should victions!,] proof guilt require (1992). 251 Kan. The cir- beyond a reasonable doubt. are all field tests Although not test is ad- under which the cumstances evidence, treated as scientific may affect ministered roadside relationship between “The should be. Nystag- of the results. reliability of alcohol on the central nervous effects other by conditions may mus be caused system, nystagmus phenomenon, than alcohol intoxication.... realm of is not the HGN test within (Fla. So.2d knowledge average person. Faires common Therefore, not a clear tests, there is App.1998). such as field Other board, test, the the acceptance of test across one-leg-stand the walk-and-turn opinion Clearly, which the conference indi- party seeking is what “the to admit the results of the HGN test [should cates. required to be] establish the foundation for I we ensure believe should ” admission of scientific evidence.... Com testify about HGN test witnesses who v. Apollo, Super. monwealth 412 Pa. qualified. are The Daubert test properly 603 A.2d (holding trial proponent to “the should be used ensure court not by pre did abuse its discretion must offering expert testimony show that evidence). cluding admission HGN Un theory or expert’s qualifies method arresting less the officers or other individ technical, scientific, specialized knowl- uals who possess administer the HGN test edge 19-15-2[.]” under SDCL appropriate training, knowledge and Guthrie, SD 627 N.W.2d experience, they should be not allowed to also Or. O’Key, 415-16. See 899 testify about administration the test. (treating P.2d 663 as scientific evi- And, a unless witness is educated test). applying dence and the Daubert Cf. HGN, on the science he should not Witte, (noting that the testify physiology about the test. jurisdictions majority apply still the Finally, discrepancies because of the con citing foundation numerous cases cerning accuracy I do not tests). utilizing Frye analyze to One prove believe HGN tests should be used to court that the stated HGN test particular a blood alcohol content. See O’Key, (stating 899 P.2d at 681 HGN tests premises well beyond rests on scientific are not to prove admissible has a knowledge, training, [the officer’s] or ed- more); blood alcohol content of .08 or understanding ucation. Without some (Fla.Dist. Williams v. 710 So.2d in- processes alcohol Ct.App.1998) (holding HGN alone cannot gestion produces nystagmus, strong how be used prove blood alcohol content of is, possible how other correlation .08%). masked, what margin causes be might been shown in statistical has sur- reasons, error For the foregoing I vey, factors, host and a of other relevant would hold blanket acceptance of HGN causation, testimony by [the officer’s] not- the officer administering the withstanding ability recognize goes too far. The officer’s testimony should symptom, was unfounded. be limited to his observations as pursuant made giving when the test to his (citation omitted). Thus, Id. at 1115-16 training. officers who do not have a scientific back- ground adequately explain nystagmus testify

causation should be allowed to causation; rather,

to its should have

their testimony limited to observations

only.

Case Details

Case Name: State v. Hullinger

Court Name: South Dakota Supreme Court

Date Published: Jul 10, 2002

Citation: 649 N.W.2d 253

Docket Number: None

Court Abbreviation: S.D.