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Appendix

United States v. Horn CR-00-946PWG

STATE
4th CIRCUIT

CASE
U.S. v. Daras, 1998 WL 726748 (4th Cir. 1998). (Unpublished opinion).

HOLDING
Held WAT and OLS were not scientific so no expert needed. Would have applied Daubert to HGN test but there was no need to because breathalyzer, WAT, and OLS were sufficient. Court took judicial notice of reliability of the HGN test, leaving only the officer's qualifications to administer the test and the administration of the test in question. HGN is not reliable enough to determine precise BAC. Applied Frye/Reid standard. Cites to Shultz, above, and holds that HGN is not admissible for determining precise BAC or even estimates.
HGN testing satisfies Frye standard and is admissible--provided a proper foundation has been laid regarding police officer's qualifications and reliability of the HGN test and its underlying scientific principals. HGN meets Frye standard if the test results are admitted for the limited purpose of establishing that a person has consumed alcohol and is therefore potentially impaired. HGN evidence may be a factor in determining intoxication but may not be used to quantify a BAC.

MARYLAND

Schultz v. State, 664 A.2d 60 (Md. App. 1995).

Wilson v. State, 723 A.2d 494 (Md. App. 1999). ALABAMA
Malone v. City of Silverhill, 575 So.2d 101 (Ala. Crim. App.1989), rev'd on other grounds, Ex Parte Malone, 575 So. 2d 106 (1990). Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998).

ALASKA

State v. Coon 974 P.2d 386 (Alaska 1999)

Adopts Daubert standard and holds the voice spectograph analysis evidence is admissible under Daubert.

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ARIZONA

State v. Superior Court, 718 P.2d 171 (Ariz. 1986).

HGN test is sufficiently reliable to establish probable cause to arrest and satisfies Frye standard for scientific evidence. HGN cannot be used to establish precise BAC. Frye test was used. Court held that the officer may state his opinion that based on the results of the HGN test the defendant's BAC was above .10-- but only to corroborate chemical testing. HGN may be used as independent evidence to prove DUI.

State v. Ricke, 778 P.2d 1358 ( Ariz. App. 1989).

State v. City Court of City Mesa, 799 P.2d 855 (Ariz. 1990).

Clarifying the holding in State v. Superior Court above: HGN test satisfies Frye for limited purposes. HGN results may be used in the absence of chemical tests to show whether a person is under the influence in the same manner as other field sobriety tests and opinions of intoxication. "In such a case, HGN test results may be admitted only for the purpose of permitting the officer to testify that, based on his training and experience, the results indicated possible neurological dysfunction, one cause of which could be alcohol ingestion. The proper foundation for such testimony, which the state may lay in the presence of the jury, includes a description of the officer's training, education, and experience in administering the test and a showing that the test was administered properly. The foundation may not include any discussion regarding accuracy with which HGN test results correlate to, or predict, a BAC of greater or less than .10%." 799 P.2d at 859-860.

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ARKANSAS

Whitson v. State, 863 S.W.2d 794 (Ark. 1993).

Holding that the results of the HGN test are relevant to show alcohol consumption in conjunction with other field sobriety tests. The court highlighted the fact that HGN test was not used to quantify BAC so the test need not be evaluated as novel scientific evidence. Court notes they apply the "Prater" test (a more liberal test than the Frye standard) to novel science. HGN testing is a "new scientific technique" and must satisfy Kelly/Frye standard. Remanded for Kelly hearing regarding general acceptance. Police officer is not qualified to give expert opinion that nystagmus was caused by alcohol consumption. His experience does allow him to administer HGN and observe signs of nystagmus. Concluded that results of HGN testing might be admissible if linked to qualified expert testimony. Question of whether the Frye/Kelly test applies was not decided because it was not ripe. Applied Kelly/Frye standard. Held that, in this case, sufficient evidence was introduced to show that a majority of the scientific community accepts that nystagmus can be caused by alcohol consumption and HGN can be used in conjunction with other tests and observations in determining that the defendant was intoxicated.

CALIFORNIA

People v. Leahy, 882 P.2d 321 (Cal. 1994).

People v. Williams, 3 Cal.App.4th 1326 (Cal. Ct. App. 1992).

People v. Joehnk , 35 Cal.App.4th 1488 (Cal. Ct. App. 4th 1995).

COLORADO CONNECTICUT State v. Russo, 773 A.2d 965 (Conn. App. Ct. 2001) Proper foundation must be established in accordance with Daubert prior to introduction of HGN test results.

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DELAWARE

State v. Ruthardt, 680 A.2d 349 (Del. Super. Ct. 1996).

HGN is scientific testimony and must satisfy rules of evidence: (1) the expert being offered is qualified; (2) the evidence offered is otherwise admissible, relevant and reliable; (3) the specialized knowledge being offered will assist the trier-or-fact in understanding the evidence or in determining a factual issue; (4) The scientific technique and its underlying principles are reasonably relied upon by the experts in the field; and (5) such evidence would not create unfair prejudice, confusion of issues or mislead the jury. HGN results may be admitted to corroborate or attack chemical analysis but not to quantify BAC. Absent chemical analysis the results are admissible, as is other evidence of defendant's behavior, to circumstantially prove driver was under the influence. Uses Frye test. Holds that the HGN test is "quasi-scientific" and is already generally accepted in the scientific community and therefore there is no need for trial courts to continue to reapply a Frye analysis. Once a proper foundation has been laid that the test was correctly administered by a qualified DRE (drug recognition expert), judicial notice can be taken that HGN test results are generally accepted as reliable and are admissible. HGN cannot be used to establish precise BAC. Expands Williams above. Trooper was allowed to explain to jury the roadside sobriety testing he performed, including the HGN test. However, in this district, before the HGN evidence is admissible, there must be a confirmatory blood, breath, or urine test. Trooper explained how he administered the HGN and that movements of the defendant's eyes suggested intoxication.

FLORIDA

Williams v. State, 710 So. 2d 24. (Fla. Dist Ct. App. 1998).

Bowen v. State, 745 So. 2d 1108 (Fl. Dist. Ct. App. 1999)

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GEORGIA

Hawkins v. State, 476 S.E. 2d 803 (Ga. Ct. App. 1996).

Uses the Frye test. HGN is generally accepted and therefore can be admitted into evidence without first obtaining experts regarding HGN's scientific validity. Uses Hawaii Rules of Evidence 702 & 703 for admissibility of scientific or technical evidence. This test is more probative than Frye and much closer to Daubert as it allows inquiry into "reliability." Court held, (1) HGN test results have been sufficiently established to be reliable and are therefore admissible as evidence that police had probable cause to believe defendant was DUI; (2) court may take judicial notice of the validity of the principles underlying HGN; (3) before admitting HGN into evidence, it must be shown that (a) officer administering test was duly qualified to conduct test and grade it, and (b) test was performed properly in the case. Case remanded for further proceedings because of indications that test was not properly performed. FSTs, such as OLS and WAT (but excluding HGN) are non-scientific in nature and an officer may testify about his/her own observations and opinions in regards to those FSTs. An officer, however, cannot testify that a person "failed" or "passed" these tests without first laying a proper foundation. Uses Frye test. HGN can be used as circumstantial evidence of intoxication. HGN tests may not be used at trial to establish BAC in absence of chemical testing. HGN satisfies Frye standard and may be admitted as evidence of intoxication provided proper foundation has been laid. HGN cannot be used to establish precise BAC.

HAWAII

State v. Ito, 978 P.2d 191 (Hawaii Ct. App. 1999).

State v. Ferrer, 23 P.3d 744 (Hawaii Ct. App. 2001).

IDAHO

State v. Garrett, 811 P.2d 488 (Idaho 1991).

ILLINOIS

People v. Buening, 592 N.E.2d 1222 (Ill. App. Ct. 1992).

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People v. Basler, 740 N.E.2d 1 (Ill. 2000)

Holds that, unless Defendant offers evidence to show HGN is scientifically unsound, a Frye hearing is not required. Officer's training and proper administration of the test in question is required.

INDIANA IOWA State v. Murphy, 451 N.W.2d 154 (Iowa 1990). Held that testimony given by a properly trained officer with respect to the administration and results of the HGN test is admissible without further scientific evidence. Officer could testify that it was his opinion based on the field sobriety tests, the defendant was under the influence. However, officer cannot make an unequivocal comment about defendant's guilt. HGN test results are scientific evidence and must satisfy Frye standard. The reliability of HGN test in the scientific community is not a settled proposition. Remanded for trial court to decide if HGN satisfies Frye. Court concluded that HGN test had not achieved general acceptance within the relevant scientific community and its exclusion was appropriate. No foundation was laid at trial as to the officer's qualifications for administering HGN. This was not properly objected to, however, and thus it could not be concluded that his testimony was erroneously admitted. Held that HGN test satisfies Frye standard and with proper foundation may be admitted as evidence of intoxication. Proper foundation requires establishing officer's qualifications for administering and interpreting results.

KANSAS

State v. Witte, 836 P.2d 1110 (Kan. 1992).

State v. Chastain, 960 P.2d 756 (Kan. 1998).

KENTUCKY

Com. v. Rhodes, 949 S.W.2d 621 (Ky. Ct. App. 1996).

LOUISIANA

State v. Armstrong, 561 So.2d 883 (La. Ct. App.1990)

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State v. Breitung, 623 So. 2d 23 (La. Ct. App.1993). MAINE State v. Taylor, 694 A.2d 907 (Me. 1997)

Affirming Armstrong. Held that, as long as the officer is properly trained and evidence establishes the test was properly administered, test is admissible but not to quantify exact BAC.

MARYLAND MASSACHUSETTS

SEE ABOVE Com. v. Sands, 675 N.E.2d 370 (Mass. 1997). Held that HGN test relies on scientific theory and expert testimony is required to meet either Daubert or Frye standard. Officer's qualifications to administer the test and proper administration of the test must also be established. Recognized that HGN test is scientific evidence and that its general acceptance and reliability have been established to satisfy Frye standard. Expressed no opinion regarding the use of HGN to quantify BAC. Affirms trial courts ruling that HGN satisfies Frye standard and concludes that HGN results are admissible when sufficient foundation has been laid. Uses Frye standard and finds HGN is a scientific test but is not generally accepted within the scientific community. Therefore it is inadmissible before a jury. HGN test can be used to show probable cause at a probable cause hearing.

MICHIGAN

People v. Berger, 551 N.W.2d 421 (Mich. Ct. App. 1996).

MINNESOTA

State v. Klawitter, 518 N.W.2d 577 (Minn. 1994).

MISSISSIPPI

Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997).

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MISSOURI

State v. Hill, 865 S.W.2d 702 (Mo. Ct. App. 1993).

Uses the Frye standard. State established HGN general acceptance at trial. Court found that when properly administered by someone adequately trained, the HGN test is admissible as evidence of intoxication. In this case, the officer testified that in his experience, someone who performs as defendant did on the HGN test would register above a .10 BAC on a breathalyzer. His testimony was not objected to at trial, and the court found that his testimony did not amount to plain error. This case was later overruled on other grounds in State v. Carson 941 S.W.2d 518 (Mo. 1997). FSTs (such as WAT and OLS) can be used to establish probable cause without first laying a Frye foundation. HGN was considered a scientific test, and court found it should not have been admitted at trial because the administering officer was not aware how to properly score it and interpret its results.

Duffy v. Director of Revenue, 966 S.W.2d 372 (Mo. Ct. App. 1998).

MONTANA

Hulse v. State, 961 P.2d 75 (Mont. 1998).

HGN test is not "novel" scientific evidence, therefore Daubert standard need not be met. Must satisfy Mont. Evid. Rule 702. State must show proper administration of the test, officer's training, and establish a scientific basis for the reliability of the test under Rule 702. Held that HGN test meets the Frye standard for acceptance and is admissible for the limited purposes of showing the person had an impairment that may have been caused by alcohol but not admissible for proving precise BAC.

NEBRASKA

State v. Baue, 607 N.W.2d 191 (Neb. 2000).

NEVADA

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NEW HAMPSHIRE

State v. Duffy, 778 A.2d 415 (N.H. 2001).

HGN test is based on scientific principals. As such it must meet a threshold of reliability to be admissible pursuant to N.H. R. Evid. 702 HGN is a scientific test and must meet Frye standard to be admissible.

NEW JERSEY

State v. Doriguzzi, 760 A.2d 336 (N.J. Super. Ct. App. Div. 2000) State v. Torres, 976 P.2d. 20 (N. M. 1999).

NEW MEXICO

HGN is scientific and thus subject to Daubert. Only after a scientific expert establishes the evidentiary reliability of the scientific principles underlying the test may a qualified police officer testify about administering of the test. Court also noted that judicial notice of the reliability of HGN would be inappropriate at this time. Before HGN evidence is introduced, a proper foundation as to its scientific acceptance or reliability must be laid. Although foundation was not introduced at trial, court found this was a harmless error because of the amount of evidence against defendant. HGN is a scientific test and thus a proper foundation, such as expert testimony of its reliability, must be laid before it is admissible. With proper foundation regarding officer's qualifications and the proper administration of the test in the case at bar, HGN evidence is admissible only as circumstantial evidence of intoxication and not as a means of quantifying BAC. A properly qualified officer may testify regarding a driver's performance on the HGN test and whether the driver was under the influence but not to quantify BAC. Also holding that admission of the HGN test is no different from any other field sobriety test.

NEW YORK

People v. Erickson, 549 N.Y.S.2d 182 (N.Y. App. Div. 1989).

NORTH CAROLINA

State v. Helms, 504 S.E.2d 293 (N.C. 1998).

NORTH DAKOTA

City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994).

OHIO

State v. Bresson, 554 N.E.2d 1330 (Ohio 1990).

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OKLAHOMA

Yell v. State, 856 P.2d 996 (Okla. Crim. App. 1993)

Uses Frye test and holds HGN test results cannot be used to quantify BAC. (In 1995, this court abandoned Frye test and adopted Daubert in Taylor v. State, 889 P.2d 319 (Okla. Crim. App. 1995). Uses Daubert factors and holds that HGN admissible to show a person is under the influence but not to quantify BAC. This limited admissibility, however, is still subject to a foundational showing that the officer who administered the test was properly qualified, the test was administered properly, and the results were recorded accurately. Held that PA uses Frye standard. Trial court excluded HGN on the grounds that Frye standard had not been met by the evidence presented by prosecution. Trial court's order to exclude HGN was affirmed.

OREGON

State v. O'Key, 899 P.2d 663 (Or. 1995)

PENNSYLVANIA

Com. v. Apollo, 603 A.2d 1023 (Pa. Super. Ct. 1992).

RHODE ISLAND SOUTH CAROLINA State v. Sullivan, 426 S.E.2d 766 (S.C. 1993). HGN evidence may be used to indicate insobriety but is not conclusive proof of DUI and may not be used to quantify BAC.

SOUTH DAKOTA TENNESSEE State v. Murphy, 953 S.W.2d 200 (Tenn.1997). HGN test is scientific evidence, and, therefore, it must be offered through an expert witness and satisfy the requirements of Tenn. Rules of Evid. 702 and 703. Uses Daubert. Testimony concerning HGN test is admissible as expert testimony provided the theory underlying the test is valid and technique applied correctly. Not accurate enough to prove precise BAC.

TEXAS

Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).

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UTAH

Salt Lake City v. Garcia, 912 P.2d 997 (Utah Ct. App. 1996).

Officer's testimony regarding HGN testing was limited to only his training, experience and observations without relying on underlying scientific basis and was thus admissible. Evidence was not offered as scientific and therefore did not have to meet applicable scientific standard (and court did not address what that standard would have been.).

VERMONT VIRGINIA WASHINGTON State v. Cissne, 865 P.2d 564 (Wash. Ct. App. 1994). Held HGN testing must meet Frye standard and remanded for lower court's determination of the question. Frye test was used. HGN test results cannot be used to estimate BAC but can be used to show that driver was under the influence. Because the State needed to bring in evidence to demonstrate HGN's reliability, the court reversed and remanded. This case was overruled on other grounds in State v. Nichols, 541 S.E.2d 310. (W.Va. 1999). WISCONSIN State v. Zivcic, 598 N.W.2d 565 (Wis. Ct. App. 1999). Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo. 2000). A properly qualified officer may testify regarding HGN results. Held that a properly qualified police officer may testify regarding results of HGN test at an administrative hearing. Additionally, under Wyoming law an administrative agency , acting in a quasi judicial or judicial role, does not need to satisfy technical rules of evidence so Daubert does not apply.

WEST VIRGINIA

State v. Barker, 366 S.E.2d 642 (1988).

WYOMING

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