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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1399 SEPTEMBER TERM, 1994 ___________________________________

WILLIAM LEROY SCHULTZ, SR. v. STATE OF MARYLAND

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Wilner, C.J., Cathell, Salmon, JJ. ___________________________________ Opinion by Cathell, J. ___________________________________

Filed:

August 31, 1995

Appellant, William Leroy Schultz Sr., was convicted by a jury in the Circuit Court for Washington County of driving under the influence, speeding, and driving with alcohol in his blood in violation of a court-ordered alcohol restriction on his driver's license. under He was sentenced to nine months detention on the driving influence conviction and was fined for the other

the

convictions.

Appellant raises the following questions on appeal:

I. Did the court err in admitting the officer's testimony about appellant's performance of the horizontal gaze nystagmus test? II. Did the court improperly influence the jury with its remarks and questions of the officer? FACTS Officer Timothy Rossiter stopped appellant on March 1, 1994, about 11:30 p.m. Upon approaching appellant's vehicle and speaking

with appellant, Officer Rossiter detected, among other things, the smell of alcohol and proceeded to administer several field sobriety tests: when asked to recite the alphabet, appellant jumbled several letters after Q; when asked to stand on one foot for thirty seconds, he had to use his other foot to maintain his balance within fifteen seconds; and, when asked to walk in a straight line

- 2 heel to toe, he experienced some difficulty doing so. The officer As the

also performed the horizontal gaze nystagmus (HGN) test.1 officer explained at trial: You measure each eye separately and one point is assessed as the object is passed in front of the eye, if it doesn't move smoothly, that's a point. Once you get to the 45 degree angle, if there's a quiver in the eye, that's a point; if there's not, then there's no point, and when you get to the furthest point, again, if there's a moving or a jumping of the eyeball, that's a point. If there's no movement, then there isn't.

According to the officer, a person can receive a score as high as six on the test, and the higher the score, the more likely it is that the individual is intoxicated. The officer stated that a

score of more than four indicates that an individual is intoxicated; a score of four indicates a borderline case. The officer then

stated that appellant received a score of five or six on the test. No chemical tests were performed. Officer Rossiter was the only witness that testified for the State. day. Appellant testified that he had had nothing to drink that On that day, he had flown home from Florida. He testified

that he had stopped off at a tavern he owns and operates on his way home for about one-half hour, but had nothing to drink. He

indicated that his truck might have exhibited the smell of alcohol because he sometimes uses it to haul empty alcoholic beverage

Nystagmus is defined as "a rapid involuntary oscillation of the eyeballs." Webster's Ninth New Collegiate Dictionary 813 (1989).

1

- 3 containers. He also indicated that his difficulty in some of the

sobriety tests might have been attributable to an injury that he suffered to his knees several years earlier. The injury causes

stiffness when sitting for extended periods of time, as was the case on the day in question. Appellant's nephew and a friend of his also testified on behalf of appellant. They both stated that they had been with him

since about 3:00 p.m. that day, as they were flying back from Florida together. drink any alcohol. They stated that they did not observe appellant They drove with him from Baltimore-Washington

International Airport and accompanied him into the tavern that he owns. They admitted that, once they went into the tavern, they

socialized with other patrons and could not be sure that he did not have anything alcoholic to drink at the tavern, but they did not observe him doing so. The waitress who was working at the tavern

that night stated that appellant only had a ginger ale to drink while he was there. station and stated Appellant's son picked him up at the police that he could not detect any alcohol on

appellant's breath or any other signs of drinking.

Appellant's

wife was waiting for him when he returned home and she, too, testified that she was unable to detect any alcohol on his breath or any other signs that he had been drinking. Horizontal Gaze Nystagmus

- 4 We first acknowledge that the HGN test, when used to detect the presence of alcohol in a person's system, has been the subject of attack, usually with respect to the qualifications of officers who administer the test. It has been noted that:

One of the test's shortcomings is that the officer administering the test may not be properly trained to understand all aspects of the test and to produce results as accurately as the NHTSA manual suggests. . . . . . . . . . . To demonstrate a proper foundation, an officer must show that he is trained in the particular procedure, that he is certified in the administration of the procedure, and that the procedure was properly administered. [Footnotes omitted.] Stephanie E. Busloff, Note Can Your Eyes Be Used Against You? The Use of the Horizontal Gaze Nystagmus Test in the Courtroom, 84 J. Crim. L. & Criminology 216-33 (1993). See also Jonathan D. Cowan & Susannah G. Jaffee,

Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication, 9 Am. Jur. Proof of Facts 3d 459 (1990); Lawrence Taylor, Drunk Driving Defense,

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