State v. L. Taylor
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:  1997 ME 81  
Docket:  CUM-95-706
Argued November 7, 1996
Decided April 18, 1997

Panel:  WATHEN, C.J., ROBERTS,  GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

STATE OF MAINE

v.

LESLIE J. TAYLOR

CLIFFORD, J.

	[¶1]  Leslie J. Taylor appeals both from the order entered in the
Superior Court (Cumberland County, Delahanty, J.) denying his motion to
suppress evidence and from the judgments entered against him following
jury verdicts of guilty on the charges of operating under the influence (Class
D) in violation of 29 M.R.S.A. § 1312-B (Supp. 1994),{1} and operating after
having been declared a habitual offender (Class D) in violation of 29 M.R.S.A.
2298 (Supp. 1994).{2}  Taylor contends on appeal that the Superior Court
committed error in denying his motion to suppress evidence obtained from
the vehicle stop and admitting in evidence expert testimony regarding the
Horizontal Gaze Nystagmus (HGN) test.  We affirm the judgments.  
	[¶2]  On September 3, 1994, at about 1:00 a.m., Officer Mark Green
was patrolling in Brunswick.  Officer Green saw Taylor's car from a distance
of about seventy-five feet and observed that the rear license plate was
unilluminated.  After stopping Taylor's car, Officer Green approached Taylor,
explained his reason for doing so, and asked Taylor for his license.  Taylor
apologized for the light being out and said that he was unaware that the light
was defective.  Officer Green noted that Taylor had an odor of alcohol on his
breath and that his speech was slow and thick.  Taylor told Officer Green
that he had consumed one beer about one and one-half hours earlier.
	[¶3]  Taylor performed four sobriety tests after exiting the car.  While
attempting to recite the alphabet, Taylor correctly stated the order of the
letters but paused twice during the recital.  When performing the walk-and-
turn test, Officer Green observed that Taylor did not count his steps out loud
as requested, stepped off-line once, incurred balance problems, and did not
turn as Officer Green had requested.  Taylor put his leg down, swayed, and
lost count while attempting to perform the one-leg stand.
	[¶4]  Officer Green also administered an HGN test, which detects the
presence of involuntary jerking of the eyes.  During each of the three phases
of the test, Officer Green observed jerking in both of Taylor's eyes.  Officer
Green testified that, as a result, Taylor had six "clues" of intoxication.  At
the conclusion of the sobriety tests, Officer Green placed Taylor under
arrest for driving under the influence of alcohol.  At the police station,
Taylor refused to take a breathalyzer test.  Officer Green never cited Taylor
for a broken plate light, and both Taylor and his girlfriend, who was in the
car with him, testified that the light was working when they checked it later
at the station.
	[¶5]  Taylor was indicted for operating a motor vehicle after his right
to operate had been revoked pursuant to the habitual offender law, 29
M.R.S.A. § 2298 (Supp. 1994), and for operating under the influence 29
M.R.S.A. § 1312-B (Supp. 1994).  After entering pleas of not guilty, Taylor
moved to suppress evidence alleging that it was the product of an illegal
stop.  After a hearing, the court denied the motion based on Officer Green's
testimony that he observed that the light was defective.  
	[¶6]  At the jury trial, Taylor moved in limine to exclude the HGN
results because no case law or scientific foundation proved its reliability. 
The State directed the court's attention to State v. Superior Court, 718 P.2d
171 (Ariz. 1986) (en banc), and the scientific evidence cited in that case, to
show the reliability of the HGN test.  The court denied Taylor's motion and
concluded that it would allow expert testimony at trial on the HGN test
subject to the laying of an adequate foundation.
	[¶7]  Officer Green testified that he had taken a three-day course
which included the horizontal gaze nystagmus testing procedure and was
taught by instructors at the Maine Criminal Justice Academy.  He testified
that the HGN test "deals with the eyes . . . [A]s a person's intoxication level
increases, there is a distinct involuntary jerkiness of the eyes which can be
detected.  And my training consisted of picking up that or detecting that
nystagmus out there in the field or on the road."  Officer Green reported
that the National Highway Traffic Safety Administration recognizes the test. 
Officer Green testified that, in his experience and training, four or more
"clues" correlates with a 77 percent probability that the subject will test
.10% blood alcohol by weight or higher.  He also testified that in his
experience in testing hundreds of people, only once or twice had someone
had six clues but a blood alcohol level of less than .10%.   
	[¶8]  Officer Green also testified that he knows how to administer the
test properly although he is unaware of the scientific basis for it.  The
person administering the test uses a pen to check for involuntary jerking of
each of the eyes, which results in "clues" of intoxication.  There are three
parts to the test, and the officer looks for as many as six clues.  First, the
officer checks for lack of smooth pursuit of the eyes by bringing a pen back
and forth in front of the subject's eyes.  Second, the officer checks for
maximum deviation of the eyes by bringing them out to the very extremes
that they can travel in the eye socket.  Finally, the officer brings the
subject's eyes out forty-five degrees to observe at what point any involuntary
jerking of the eyes begins.  All of the evidence relating to the HGN test was
admitted over Taylor's timely objections during the trial.  Before the charge
to the jury, the court granted in part a motion for a judgment of acquittal on
part of the indictment alleging that Taylor's blood alcohol level was over
.08%.{3}  The jury subsequently convicted Taylor on both counts.  This appeal
followed.   

I. 

	[¶9]  Taylor contends that the court erred in finding Officer Green had
an objective basis for stopping Taylor's vehicle.  He argues that Officer Green
was factually incorrect and that the license plate light was illuminated.  An
investigatory stop is valid when it is "supported by specific and articulable
facts which, taken as a whole and together with the rational inferences from
those facts, reasonably warrant the police intrusion."  State v. Hill, 606 A.2d
793, 795 (Me. 1992) (citations omitted).  Suspicion of a civil violation
provides adequate specific and articulable facts.  Id.  (failure to display rear
plate) State v. Carsetti, 536 A.2d 1121, 1122 (Me. 1988), habeas corpus
denied, 932 F.2d 1007 (1st Cir. 1991) (partially obstructed plate and
expired registration sticker); cf. State v. Pinkham, 565 A.2d 318, 319 (Me.
1989) (safety reasons alone may be sufficient to warrant an investigatory
stop).  Although Taylor testified that the light was illuminated when he
checked it after leaving the police station, Officer Green testified that he
observed from seventy-five feet away that the light was defective.{4}  Officer
Green's testimony about whether the light was illuminated while Taylor
operated his car is not directly controverted and supports an articulable and
reasonable suspicion that a traffic violation was occurring.{5}  The court chose
to accept Officer Green's testimony.  Because those factual findings are not
clearly erroneous, the stop in this case was constitutional.{6}

II.

	[¶10]  Taylor also contends that the court erred in allowing Officer
Green to testify regarding the results of the HGN test that the officer
administered to Taylor during the stop and that as a consequence, he was
improperly convicted of OUI.  We review evidentiary rulings for clear error
and an abuse of discretion.  See Kay v. Hanover Ins. Co., 677 A.2d 556, 559
(Me. 1996).  Although we agree with Taylor that the court erred in
admitting some of the HGN testimony, we conclude that the error in this
case was harmless.
	M.R. Evid. 702 provides that:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the
form of an opinion or otherwise.

We stated in State v. Williams, 388 A.2d 500 (Me. 1978), that

[t]he presiding Justice will be allowed a latitude, which the Frye
rule denies, to hold admissible in a particular case proffered
evidence involving newly ascertained, or applied, scientific
principles which have not achieved general acceptance in
whatever might be thought to be the applicable scientific
community, if a showing has been made which satisfies the
Justice that the proffered evidence is sufficiently reliable to be
held relevant.        

Id. at 504 (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)).  The
HGN test is an integral part of a police officer's administration of the field
sobriety test, and we take judicial notice of its reliability in making
determinations of probable cause for arrest and for purposes of establishing
criminal guilt in cases involving operating under the influence.  This Court
may properly take judicial notice on appeal.  M.R. Evid. 201(f).  "A judicially
noticed fact must be one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose
accuracy cannot be questioned." M.R. Evid. 201(b).{7}  
	[¶11]  We are convinced that the Horizontal Gaze Nystagmus test is
sufficiently reliable to be admitted as evidence in future cases.  Nystagmus "is
an involuntary jerking of the eyeball.  The jerking may be aggravated by
central nervous system depressants such as alcohol or barbiturates."  State v.
Superior Court, 718 P.2d 171, 173 (Ariz. 1986) (en banc).  "Horizontal gaze
nystagmus is the inability of the eyes to maintain visual fixation as they are
tuned to the side."  Id.  As one commentator explains,
 
[nystagmus] occurs naturally as one's eyes focus on all objects
within their field of vision.  In order to give the impression of
imagery in motion, the eyes focus on each and every object
individually and then track the sequence of objects at a high rate
of speed.  As a result, many people show horizontal nystagmus as
their eyes track objects to the extreme sides.  Alcohol slows down
the eyes' ability to rapidly track objects and causes the eyes to
oscillate, or "jerk," before they normally would in a sober person.         

Stephanie E. Busloff, Can Your Eyes be Used Against You?  The Use of the
Horizontal Gaze Nystagmus Test in the Courtroom, 84 J. Crim. Law &
Criminology 203, 203 (1993); see also John P. Ludington, Annotation,
Horizontal Gaze Nystagmus Test: Use in Impaired Driving Prosecution, 60
A.L.R.4th 1129 (1988 & Supp. 1996).{8}  Because the test examines involuntary
movements and not speech or physical impairment, the United States
Department of Transportation considers the test "the single most accurate
field test[.]"  See People v. Buening, 592 N.E.2d 1222, 1227 (Ill. Ct. App.
1992), cert. denied, 602 N.E.2d 460 (Ill. 1992) (citations omitted).  Although
the test does not require scientific explanation to the same extent as a
breathalyzer or a blood test, several courts have distinguished it from other
routine field sobriety tests such as the walk-and-turn and the one-leg stand. 
See Schultz v. State, 664 A.2d 60, 65-66 (Md. Ct. Spec. App. 1995) ("The
principle underlying the HGN test, i.e., that it is an accurate measure of the
intoxication of a suspect, is a scientific principle."); State v. Superior Court,
718 P.2d at 178 ("The HGN test is a different type of test from balancing on
one leg or walking a straight line because it rests almost entirely upon an
assertion of scientific legitimacy rather than a basis of common knowledge). 
We agree that the HGN test relies on scientific principles to a greater extent
than other common field sobriety tests such as the walk and turn, the one-leg
stand, or a recitation of the alphabet.  Therefore the HGN test's reliability
must be established before its results are admissible in evidence in a criminal
trial.  
	[¶12]  The seminal case regarding the admissibility of HGN test results
is State v. Superior Court, 718 P.2d 171 (Ariz. 1986) (en banc).  Several cases
subsequently have relied on Superior Court to judicially notice the reliability
of the test in their jurisdictions.  See Schultz v. State, 664 A.2d at 74; People
v. Berger, 551 N.W.2d 421, 424 (Mich. Ct. App. 1996); Emerson v. State, 880
S.W.2d 759, 768-69 (Tex. Crim. App. 1994) (en banc), cert. denied 513 U.S.
931 (1994); cf. People v. Buening, 592 N.E.2d at 1227; State v. Armstrong,
561 So.2d 883, 886-87 (La. Ct. App. 1990).  The scientific studies, law review
articles, and other literature on the subject of HGN testing, as well as the
case law, demonstrate that the HGN test is reliable if an officer properly
administers it.  We are persuaded by these authorities and conclude that the
results of the HGN test should be admissible if a proper foundation is laid for
their introduction in evidence.  A proper foundation shall consist of evidence
that the officer or administrator of the HGN test is trained in the procedure
and the test was properly administered.{9}   
	[¶13]  What the test may be admitted to prove, however, should be
limited.  We agree with Taylor that using HGN results to precisely quantify
blood alcohol content is improper.  Pursuant to 29 M.R.S.A. § 1312(8) (Supp.
1994), the Maine Legislature had provided that

8. Evidence.  The drug concentration or percentage by weight of
alcohol in the defendant's blood at the time alleged, as shown by
the chemical analysis of that person's blood, breath or urine, or
by results of a self-contained, breath alcohol testing apparatus
authorized . . . is admissible in evidence.{10}

The statute suggests that the proper way to test for an exact blood alcohol
level is by chemical analysis of blood, breath, or urine.  In distinguishing
those tests from the HGN test, the court in State v. Superior Court realized
that blood-alcohol levels tested under these methods "is to be determined
deductively from analysis of bodily fluids, not inductively from observation of
involuntary bodily movements." 718 P.2d at 181.  Because no one can verify
the officer's HGN test reading and because we are cognizant that there are
other possible causes of nystagmus,{11} the results of an HGN test are
admissible only as evidence supporting probable cause to arrest without a
warrant or as circumstantial evidence of intoxication.  The HGN test may not
be used by an officer to quantify a particular blood alcohol level in an
individual case.  See People v. Buening, 592 N.E.2d at 1227-28; Schultz v.
State, 664 A.2d at 73-74; Emerson v. State, 880 S.W.2d at 769.  
	[¶14]  Thus, the admission in this case of Officer Green's testimony
relating to particular blood alcohol levels was error.  Officer Green testified
that four clues of intoxication resulted in a 77 percent probability that the
subject has a blood alcohol level in excess of .10%.  He further testified that,
in his experience in testing over two hundred people, only a few of those
persons exhibiting six clues did not have a blood alcohol level of .10% or
above.  Although Officer Green did not exactly quantify Taylor's blood alcohol
level to any specific number, he improperly testified to evidence which
lacked scientific basis.  See, e.g., State v. Ruthardt, 680 A.2d 349, 362-63
(Del. Super. Ct. 1996) (noting that mere estimate by officer that blood alcohol
level exceeded .10% would be error).
	[¶15]  Given the amount of other evidence pointing to Taylor's
intoxication, however, we are persuaded that the error is harmless.  M.R.
Crim. P. 52(a).  An error is harmless "if it is highly probable that the error
did not affect the jury's verdict."  State v. Phillipo, 623 A.2d 1265, 1268 (Me.
1993) (citing State v. True, 438 A.2d 460, 467 (Me. 1981)).  Taylor admitted
consuming alcohol and had an odor of alcohol on his breath.  He performed
poorly on the walk-and-turn test, the one-leg stand test, and reciting the
alphabet.  His speech was slow and thick.  Taylor then refused to take a
breathalyzer test at the station.{12}  Moreover, the court entered a judgment of
acquittal on the charge of operating with a blood alcohol level of .08% or
greater.  Although the jury asked for the number of HGN clues to be read
back to them, the court had previously cautioned them in its instructions that
there was no evidence as to Taylor's specific blood alcohol level.  Given that
the jury had abundant circumstantial evidence of intoxication even without
the HGN test, it is highly probable that the HGN evidence did not affect the
jury's verdict.
	The entry is:
								Judgments affirmed. 
                                                                     
Attorneys for State:

Stephanie Anderson, District Attorney
Carlos Diaz, Asst. Dist. Atty. (orally)
142 Federal Street
Portland, ME 04101

Atttorney for defendant:

Anthony J. Sineni, III, Esq. (orally)
701 Congress Street
Portland, ME 04101

FOOTNOTES******************************** {1} 29 M.R.S.A. § 1312-B provided in part: 1. Offense. A person is guilty of a criminal violation under this section if he operates or attempts to operate a motor vehicle: A. While under the influence of intoxicating liquor or drugs or a combination of liquor and drugs; or B. While having 0.08% or more by weight of alcohol in his blood. 1-A. Pleading and proof. The alternatives defined in subsection 1, paragraphs A and B may be pleaded in the alternative. The State may, but shall not be required to, elect prior to submission to the fact finder. This section was repealed and replaced by 29-A M.R.S.A. § 2411 (1996) (effective Jan. 1, 1995). {2} 29 M.R.S.A. § 2298 was repealed and replaced by 29-A M.R.S.A. § 2557 (1996) (effective Jan. 1, 1995). {3} During its instructions to the jury, the court indicated that "there is no evidence of a blood alcohol test or as to what the defendant's blood alcohol level was at that time, and you should not speculate as to what it would have been if a test in fact had been taken." During jury deliberations and at the request of the jury, a section of testimony concerning how many clues of intoxication Taylor showed in the eye test was read back to the jury. {4} 29 M.R.S.A. § 1366 (Supp. 1994) provided in part that "[a] vehicle shall carry a lamp illuminating with white light its rear registration plate so that the characteristics on the plate shall be visible for a distance of at least 50 feet." (repealed and replaced by 29-A M.R.S.A. § 1909 (1996) (effective Jan. 1, 1995)). {5} Taylor's assertion that Officer Green had a duty to verify that the light was out before continuing with the Terry-stop is without merit. In State v. Hill, 606 A.2d 793 (Me. 1992), the officer stopped Hill's truck because of the officer's belief that Hill was not displaying a rear license plate. Prior to reaching the cab of the truck, however, the officer noticed an unilluminated license plate in the cab's rear window. We held that the officer's subsequent request for Hill's license and registration was valid. Here, Officer Green made his initial observations about Taylor's intoxication after the officer asked Taylor for his license. Thus, even if Officer Green failed to verify his suspicion, Hill forecloses any argument that his subsequent request for a license was improper. {6} Taylor also argues that the stop was unconstitutional because it was pretextual. Taylor did not raise this argument below, and accordingly, we review that contention for obvious error. State v. Sargent, 656 A.2d 1196, 1199 (Me. 1995) (citations omitted). There was no obvious error in the court's implicit finding that the stop was not pretextual. Even assuming, however, that the officer's reason for stopping Taylor was a pretextual one, we note that the United States Supreme Court has recently held that the subjective motivations of the officer are irrelevant for purposes of Fourth Amendment analysis. Whren v. United States, 116 S. Ct. 1769 (1996). {7} We have judicially noticed scientific conclusions in the past. See, e.g. State v. Inman, 350 A.2d 582 (Me. 1976) (reliability and common knowledge of palm print identification); Kobeckis v. Budzko, 225 A.2d 418 (Me. 1967) (that cooking pork protects from trichinosis is a matter of general knowledge); Jordan v. Mace, 144 Me. 351, 69 A.2d 670 (1949) (scientific authorities show that blood tests can accurately disprove paternity); see generally, Field & Murray, Maine Evidence