*1
petition
21, 1992,
appellant’s
On
for reconsideration filed October
reconsideration
(115
(1992))
allowed;
102,
vacated;
decision
Or
STATE OF Appellant, O’KEY, ALBERT R.
Respondent. CA A70279) (TM90-5122; P2d 904 Attorney Virginia Crookham, Charles General, S. L. Linder, General, Fussner, Solicitor and Jonathan H. Assis- Attorney petition. General, Salem, tant *2 Presiding Judge, Warren, Before and Edmonds and Judges. Muniz,* De
EDMONDS, J. dissenting.
Warren, J.,P.
* Muniz, J., J., vice Joseph, De C. retired.
EDMONDS, J. petitioned for review of our decision
The state has opinion trial order without court’s exclud- that affirmed ing Gaze the results of a Horizontal from evidence (HGN) O’Key, Nystagmus Or test. State v. (1992). petition as one for reconsidera-
P2d We treat the 9.15(1), and allow it. tion, ORAP charged driving the influ- with under Defendant was trial, he moved to ORS 813.010. Before ence of intoxicants. exclude performance test. The of the HGN evidence of his prove that he trial to offer the evidence at state intended to that his blood of intoxicants was under the influence and/or greater percent. court The trial was than .08 alcohol level granted ruling “the value of motion, outweighed of the HGN test subjec- prejudice error and unfair because tivity appeals pursuant test.]” [the ORS The state 138.060(3). procedure test as a describes the HGN
The state *3 Driving Under the requests a police which a officer “in such point, follow a fixed suspect to Influence of Intoxicants his head still. keeping with his while eyes of a tip pen, as the slowly position front point from moves The officer things: side, three Whether looking for subject to the angle at an eyeball (nystagmus) of there is oscillation smoothly or the motion eye follows degrees; whether 40 at maximum devia- is nystagmus whether there jerkily; and side). (when The test is to the looking fully is eye tion side, resulting six-part in a subject’s other on the repeated in four or bounce’ ‘eyeball or presence test. The subject impaired is that the the test indicates parts more by alcohol.” tes scientific extensive evaluated
The trial court weighed concerning the factors timony test, evidence Brown, 297 Or by Supreme in State v. Court enunciated 404, (1984), under conclusion at its and arrived P2d 751 687 testimony expert be relevant must Under 403.1 OEC 1 provides: 403 OEC is value relevant, if its excluded “Although prejudice, confusion outweighed by of unfair
substantially
provide
under OEC 401 and
assistance to the trier of fact
requirements
under OEC 702.3 If the
of OEC 401 and OEC
subject
only
met,
702 are
then the
if
exclusion
provisions
Regarding
it falls within the
of OEC 403.
applicable,
standard of review that is
the court in Brown said:
“Oregon Evidence Code Rule 403 codifies the common-
law discretionary power
judge
of the trial
in balancing proba-
tive value of evidence against
But,
its prejudicial effect.
this
‘balancing’
so-called
always
rule does not
call for the exercise
by
of discretion
the trial court. Notwithstanding the usual
discretion,
deference to trial court
we
appellate
as an
court
retain our role to determine the admissibility of scientific
evidence under the Oregon Evidence Code.”
The state the HGN test is based on scientifically principles prop- valid and, when administered erly, accurately impaired by indicates whether a driver is According alcohol. state, to the the test is the most accurate of approved all of the standardized field tests that impairment. indicate alcohol nystagmus It also contends that if the present degrees at an of 40 at maximum eyes, accurately deviation in both then the test shows that the greater. blood alcohol concentration will be .10 It according argument, follows, to the that evidence of the HGN test results is admissible to establish that defendant’s blood legal alcohol concentration was over limit fixed ORS 813.010(l)(a), being probative as well as of the standard 813.010(l)(b).4 prescribed by ORS issues, misleading jury, delay considerations of undue or needless
presentation of cumulative evidence.” provides: OEC 401 “ having any tendency ‘Relevant evidence’ means evidence make the any consequence existence of fact that is of to the determination of the action probable probable or less than would be without the evidence.” provides: *4 scientific, specialized knowledge “If technical or other will assist the trier of issue, qualified the fact to understand evidence or to determine a fact a witness skill, expert by experience, training may testify knowledge, as an or education opinion thereto in the form of an or otherwise.” 813.010(1) provides: ORS driving person the influence “A commits the offense of while under of person person: if the a vehicle while the intoxicants drives following the court said that the factors guidelines reaching are to as be considered for a decision about value of under the and OEC 702:
“(1) field; general acceptance The in the technique’s stature; The expert’s qualifications “(2) “(3) The use which has been made the technique; for “(4) error; The rate of “(5) literature; of specialized existence “(6) invention; novelty of the “ (7) subjec- which technique The extent to the relies on the of interpretation expert.”
tive
Regarding the use that has been made of the tech- nique, the state offered evidence that the HGN test is used primarily as a field sobriety test for alcohol impairment and is less commonly used to determine a specific blood alcohol level. It is used in combination with other field sobriety tests to make a probable cause determination as to whether is person under the influence. As to the potential rate error, that, shows when used by a correctly qualified officer and when employed along with other field sobriety tests, a nystagmus is at present 40 degrees indicates a blood alcohol level of over .10 percent, with an of 80 accuracy percent. However, defendant disputes accuracy results, because numerous other possible factors could cause nystagmus. shows that Testimony about three percent of the population suffers from non-alcohol caused nystagmus that, within that there are group, 50 to 100 causes of the phenomenon. Non-alcohol induced nystagmus typically is asymmetrical and officers are trained to look for that aspect. The state also out points that persons suffering from known causes of non-alcohol induced nystagmus, such as with people tumors, brain sclerosis, brain multiple damage stroke victims are less to be likely encountered a car. Part driving that officers training them to ask before undergo requires administering the test whether the person has a head injury, ill is or is medication. taking
Defendant concedes that there is substantial spe- cialized literature about the HGN phenomenon, and that the for it and the testing use of the test in with combination other field tests is no “novel.” longer Finally, the state argues or absence of is no more presence nystagmus than the observation of other indicia subjective of intoxica- tion such as bloodshot or slurred swaying, staggering, eyes The officer must make three observations: Do the speech. or do move from eyes jerk smoothly mid-point they end-point; continuing jerking bouncing is there when the eyes end-point; eyes display jerking are held at the do degrees. at a fixed argues that, when
Defendant the factors listed in supra, State used to evaluate HGN test points case, this results in to the the results are not admissible. He depending varies on the accurately individual, that in order to measure the 40 angle, protractor necessarily required used, device rapidly pen and that if the slightly moves the too or if officer pursuit line,” above the “smooth results are *6 He also on evidence that the results are inaccurate. relies myopia as and that inaccurate to those who suffer from acute fatigue can alcohol, of medication and the cumulative effect eye influence movement. 401 or evidence is relevant under OEC
Whether helpful purpose depends for on the which is under OEC being foregoing, question no on the there is offered. Based test make the that evidence ofthe results of defendant’s HGN of of he was under the influence existence of the fact that alcoholic likely beverages and would assist the trier more nystagmus making Also, a could fact in that determination. analysis or breath and a of blood corroborate chemical accuracy of of an trier fact in the evaluation assist the of intoxilyzer analysis or blood result.5 value of that
The trial court concluded preju- outweighed of unfair the evidence was gave error its dice, and as reasons subjectivity noted, HGN test. we have of the As and the helpful to under OEC 401 test the is relevant evidence result requires us to 702. OEC 403 trier of fact under OEC may overly degree of fact to which trier evaluate the implication impacted purported prejudiced of a validity reliability evidence and whether admission abrogate its role of fact to will cause the trier result of think that HGN test not all the facts. We do to evaluate impact. about all with As that kind of have results analysis of defendant’s a chemical could corroborate Proof of by weight .08 that defendant has or blood shows breath corroborative, impairment but blood, just physical are other forms of alcohol in his content. prima evidence alcohol not facie the test was tests, the evidence about how field sobriety to it is to cross- responses subject and defendant’s performed examination. is that errors occur may
The dissent’s concern in the field when there is no because the test is administered used to measure the accuracy to insure the way tests the officer to sobriety require Other field nystagmus. movements or patterns speech demonstrate physical them under the officer’s direc perform the driver require subject the manner of administration tions. Because excluded. examination, Any cross- those test results not A to the to be to the evidence. weight given deficiencies go test result is one of similar here. HGN analysis applies into test results that be admitted many field trial, it is for the of fact evidence trier during We whether the officer used the proper angle. determine pro the evidence is not so its prejudicial conclude trial court erred when it bative value is outweighed. observations of the officer as to excluded from and the tes defendant’s reactions to the HGN test officer’s meant to him. timony about what the results allowed; vacated; reversed Reconsideration decision and remanded. J.,
WARREN, dissenting. P. *7 before us is the of admissibility The issue only and at trial. In his of facts findings HGN test as evidence law, judge proba- of the trial concluded that conclusions of is outweighed by tive value of the evidence for error and because of the potential unfair prejudice be of may that the test the test. He opined subjectivity fact in to the trier of value and helpful probative substantial the influence was under whether a defendant determining (BAC) was blood alcohol content whether the intoxicants and error, for a serious potential He found least .08 percent. at I agree. in field. test is administered however, when the and test is reliable the HGN argues The state not accurate the test argues Defendant accurate. BAC, and a prove specific to be used to enough the danger is outweighed of the evidence value probative unfair prejudice.
62
(1987),
App
Reed,
451,
83
P2d
State v.
Or
732
66
we held that the HGN test is scientific evidence based on a
principle
that,
and
novel scientific
order for
results of
as a field
test,
the HGN test to be admissible
the state
reliability
lay
accep
for the
must
foundation
scientific
Scott,
tance of the test. In
121 Or
P2d
State
854
(1993),
holding, rejecting
we reaffirmed that
the state’s
991
argument
801.272,
that, under ORS 813.135 and ORS
legislature approved admitting the results of the HGN test
evidentiary
an
into evidence without
foundation.
analysis
Supreme
an
The
Court articulated
admissibility
Or
of scientific evidence State v.
(1984). Typically, scientific evidence is
404,
Under the Evidence help 4011and if it will admissible if it is relevant under OEC disputed deciding 702.2 To issue. OEC the trier of fact helpfulness identify and the value evaluate seven evidence, Court in Brown enumerated of scientific guidelines: factors as
“(1) field; general acceptance in the technique’s The “(2) stature; expert’s qualifications The “(3) technique; made of the use which has been “(4) error; rate of The potential “(5) literature; specialized The existence “(6) invention; and novelty provides: OEC “ any tendency having make the means evidence ‘Relevant evidence’ action consequence the determination any fact that is of existence of evidence.” without probable than it would be probable less provides: knowledge the trier of will assist scientific, specialized or other technical “If issue, qualified a witness a fact to determine the evidence or to understand fact testify training skill, experience, or education by knowledge, expert as an *8 opinion or otherwise.” of an in the form thereto “(7) subjec- on the relies technique to which The extent 417. 297 Or at expert.” of the interpretation
tive may additional factors referred to The court appro- following factor list, I consider Of that considered. incorporate it priate test and of the HGN extent to which the evaluation my analysis: the basic data “The into verifiable jury[.]”
by n Or at 417 5. the court helpful probative value and is has Even if evidence unduly may if it is be excluded fact, it still the trier of exclusionary repetitive, prejudicial, some other or falls under Regardless provision provided at 438. 403.3 297 Or judge discretionary power trial balanc- of the normal ing prejudicial against its value of evidence power appellate to determine courts retain effect, the admissibility the OEC. evidence under of scientific admissibility of on the received evidence
The court January hearing 24, 1991. an on the test at omnibus parties stipulated testimony consider the court could also hearing before received at an earlier of witnesses January hearing, judge 24, At the in a different case. the same arresting along professor optometry, with the Yolton, a Dr. ophthalmolo- state, Wolf, and Dr. officer,4testified for the Testimony gist, hear- from an earlier for defendant. testified psychologist, ing Burns, a research Dr. that of Dr. included Sergeant consulting pathologist, Brady, the Los Studdard of Hayes Angeles Department and Lieutenant Police Oregon State Police. steady a loss of
Yolton testified eyes target. by In alcohol-induced on a fixation slowly eyes jerk nystagmus, nystagmus, drift also called jerk back. in one direction administering are in OAR the HGN test
The rules for According chapter a trained officer rules, those 257. provides: OEC 403 probative value is relevant, if its be excluded “Although prejudice, confusion of the substantially outweighed of unfair delay or needless jury, of undue issues, misleading considerations evidence.” presentation of cumulative 1991, January arresting only officer’s stipulated that parties hearing. considered, testimony at an earlier his not would be test, authorized to conduct the HGN with conjunction tests, *9 if certain other field order to determine the driver is driving intoxicating liquor while under the influence of with a blood alcohol of than content .08 greater percent, violation of ORS a finger, pencil 813.010. officer holds face, in front of the about 15 penlight vertically person’s nose, inches from the and conducts three any following (1) deemed the stimulus to procedures appropriate: moving (as side, for to drifting smooth checking pursuit opposed (2) back); at maxi- jerking checking nystagmus (3) eye;5 mum deviation of each for the onset checking of at 40 in each OAR nystagmus approximately degrees eye. 257-25-020(l)(a).6 I con- the factors enumerated
Reviewing that all and that Burns experts well-qualified clude is for HGN research. The test is nationally recognized testing law enforcement authorities as a field generally accepted the test lawby test.7 Studdard stated that is sobriety accepted determine whether enforcement to agencies person of intoxicants but not as a to deter- way under the influence that he would use it with other field mine BAC. Brady agreed determine whether a was sobriety person impaired tests to a BAC. alcohol, but not to determine specific as differ on the use of the HGN test Jurisdictions a trained in criminal Some allow evidence trial. jurisdictions establishing without officer about HGN test results testify to of reliability accuracy foundation for the evidentiary Edman, See, NW2d State v. 452 e.g., the scientific principles. (Iowa Clark, P2d 853 v. 222, Mont 762 State 1990); 234 169 285 80, 3d 506 NE2d v. Nagel, 30 Ohio State (1988); (1986). probable used to establish Arizona, may the test In 5 exaggeration of nystagmus significant type is a explained that this of Yolton target the side. person’s moves to focus as nystagmus at the end of a that occurs jerk side. The to the and then back eyes toward the center will drift back seconds, nystagmus, normally few but alcohol-induced phenomenon for a occurs will be period, and the movements an extended will continue over the condition easy distinguish. larger and are 6 check for the proivde shall that the officer since been amended The rule has eye.” degrees “prior in each to 45 onsent of 7 Safety uses Burns, Association Highway Traffic According the National adopted the field has nationally, one-half of the states and about this test battery HGN test. includes the test
65
accuracy
cause for arrest and to corroborate or attack the
of
independent
tests, but not
blood
chemical
alcohol content
as
analysis.8
in the
of a
v.
absence
chemical
State
(1986);
Superior
Ariz 269, 276, 279,
149
suggests percent that if the alcohol level is .10 jerk nystagmus approx- more, will occur at or the onset imately degree a 40 from deviation the nose. misdiag- are a number of causes
There experts A number of testified that nonalcohol induced nosis. damage nystagmus jerk caused disease or brain occurs although gen- percent population, three to four (one eye only), erally nonsymmetrical whereas alcohol- eyes. nystagmus Yolton testified is the same both induced drugs, depressants convulsants, can such and that other change angle sleep of onset HGN, and loss can cause degrees. if officer moves five He testified that about also slightly rapidly above moves the stimulus the stimulus too pursuit Yolton distorted. line, the results will be the smooth authority because test, critical of the to who was referred one distinguish alcohol-induced between test did not evidentiary that, although HGN satisfied the The court found (DC 1923), States, was Frye F Cir the test v. United forth set standard satisfy margin including that would not problems, of error fraught process with due duplicate inability officer’s beyond a proof a crime reasonable doubt “reading” of the test. nystagmus and disease-caused and because he did nystagmus trained in properly not believe that officers would be police nystagmus the test. Wolf testified that can be administering that, there are because produced by fatigue anxiety HGN, very so causes of the test has little value many possible than an that someone is substantiating impression other under the influence of alcohol. lights testified that car strobe would
Brady police can affect the test results. Wolf also testified from setting by lights lights in the field strobe be caused traffic on a busy highway. that it is to use a impractical protrac-
Yolton testified that, to obtain field to measure 40 but degrees tor it is results, degrees, within or minus several plus precise that, without one. Wolf testified necessary to use probably not a scientific test. Hayes the HGN test is protractor, using of 45 an of onset of the nystagmus degrees testified that angle of onset BAC and that correlates with a .05 Burns testified percent. a BAC of .10 suggests of 40 degrees the most demonstrably HGN test was that, although tests, the sobriety of all the field subjective accurate and least any using did not advocate subjective, and she highly test is addition, nature of the test test alone. sobriety one field judge jury in the field does not allow administered was of concern major That issue the results. verify Court, Ariz at 279. supra, court in State v. Superior field HGN test as a the use of the In summary, tests is sobriety field with other conjunction test in commonly The test is and well established. well-documented road. driver off the to take a cause probable used to establish *11 OEC 401 relevant under it is The evidence shows 702 to prove fact under OEC the trier of would helpful whether, the balanc- under The issue is impairment. alcohol enough reliable test is accurate 403, the test of OEC ing outweighed it is not impairment alcohol predicting when the issues or confusion prejudice of unfair danger 813.010. of ORS a violation prove it is used horizontal are causes there I am concerned disease, fatigue alcohol, including than other gaze troubled, I more am false positives. that produce anxiety, without calibrated instruments however, that use of the test accuracy measured creates a serious to insure potential only subjectivity. A five difference of for error and degrees, degrees angle, create a between 40 and 45 can expected major result, .10 BAC versus in the difference by police also can be distorted the field .05 BAC.The result lights, lights traffic movement on the not on the the car and other strobe by moving quickly highway the stimulus too way verify pursuit addition, there is no line. smooth test results. subjectivity
Considering potential for error and proof performing of a field, in the I conclude that as the test helpfulness probative value and 813.010, ORS violation of outweighed by greatly of unfair of the HGN test jury’s prejudice over- and confusion and the test. the scientific nature of reliance on Respectfully, I dissent.