Horizontal Gaze Nystagmus Test Evidence in Colorado The Framework under Campbell v. People, 0620 COBJ, Vol. 49, No. 6 Pg. 22

PositionVol. 49, 6 [Page 22]

49 Colo.Law. 22

Horizontal Gaze Nystagmus Test Evidence in Colorado The Framework under Campbell v. People

Vol. 49, No. 6 [Page 22]

Colorado Lawyer

June, 2020



This article examines the standards for evaluating horizontal gaze nystagmus test evidence in trial courts and administrative proceedings for license revocation.

In 1975 the National Highway Traffic Safety Administration (NHTSA) developed standard field sobriety tests (SFSTs) for law enforcement to determine alcohol driving impairment,1 and law enforcement implemented the SFSTs in 1981. Law enforcement employs three SFSTs: horizontal gaze nystagmus (HGN), walk and turn (W&T), and one leg stand (OLS). There are other tests, such as the Romberg test, but NHTSA has not sanctioned them.2

The science supporting the use of SFSTs to determine alcohol impairment is reasonably reliable3 yet still somewhat controversial.4 Many courts admit all SFSTs, with some taking judicial notice of their scientific reliability and noting their acceptance in the scientific community for alcohol impairment. But the admissibility of the science related to the HGN test has met varying results.5 As noted by the Maryland Court of Special Appeals:

The majority of foreign jurisdictions that have addressed the issue have held that the test for HGN is a scientific test. Most of those few states that have held that it is not a scientific test opine that its admissibility depends upon a lesser standard because it is a mere field test and, thus, is admissible without a scientific foundation. Thus, in both the states holding that the HGN test is a scientific test (the majority) and those states holding that it is only a field test, it is, nevertheless, admissible so long as certain predicates are satisfied.6

Colorado joined the majority in 2019 when the Colorado Supreme Court held in Campbell v. People that the HGN test is scientific evidence under CRE 702.7 Post-Campbell, courts can expect to receive motions in limine seeking prevention of prosecution evidence relating to HGN evidence. This article examines the new standards for evaluating HGN issues applicable in Colorado trial courts and administrative proceedings.

The Campbell Framework

In Campbell, the defense argued during pretrial proceedings that the prosecution intended to have the police officer who conducted the SFSTs, including the HGN test, testify as a lay witness. Campbell argued that the SFSTs comprised "a specialized area of knowledge," and therefore the officer should be permitted to testify only about his observations and not be allowed to offer "any opinions that stem from those observations that are based on this specialized knowledge that the officer had."8 The trial court did not make a formal finding during pretrial motions but indicated it would consider an objection at the appropriate time during trial, and it noted that there could be testimony by an officer on roadside maneuvers that would require expert opinion.[9] At trial, the police officer testified extensively about his training and experience on conducting SFSTs, noting his estimated 700 DUI investigations over his 15-year career as a police officer, which included "wet lab" training.10 The officer explained the HGN test and described the six clues, three separate clues in each eye, that he would look for when performing the test. The officer testified that he had conducted the SFSTs on the defendant and gave specific testimony about how he performed the test in accordance with the standards, and what an officer looks for during each step of the test as the officer observes the subject's eyes t racking the stimulus. The officer's testimony detailed where the stimulus is held, how it is moved, and what signs demonstrate each clue.11

Campbell was convicted of driving while ability impaired and appealed the conviction to the Arapahoe County District Court. He argued that the trial court allowed impermissible lay witness testimony from the officer regarding the HGN test. The district court affirmed the trial court and held that the officer had developed his opinions on the clues seen during the HGN testing by watching Campbell's eye movement, which the court opined was something that any ordinary citizen could do. Thus, the testimony was admissible as lay witness testimony under CRE701.12

In its analysis on appeal, the Colorado Supreme Court noted that Rule 701 states that a lay witness's testimony in the form of opinions or inference is limited to those that are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." On the other hand, Rule 702 provides that "[i]f 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."13

In analyzing the officer's testimony on the HGN test under the principles and definitions in Rules 701 and 702, the Court first noted that the officer's testimony was not the type that could be offered without specialized experience, knowledge, or training.14 Instead, according to the officer's own testimony at trial, it was his extensive training and experience that qualified him to perform the test, which underscored that the testimony was not lay witness testimony.15 The Court found that a lay person without training would not be familiar with the principles of the HGN test and would not be able to explain the administration and interpretation of that test.16 Therefore, the Court found that the trial court had abused its discretion when it admitted the officer's testimony as lay testimony and did not require the officer to be qualified as an expert witness under Rule 702.

In analyzing the error, the Court noted the plethora of evidence supporting the jury's determination that Campbell was impaired. This evidence included the results of the failed W&T and OLS tests; the three small botdes of alcohol, including one opened, on the floor of Campbell's car; the two breath tests that revealed a breath alcohol content of .07 and .086; Campbell's admission that he had consumed alcohol; and Campbell's lack of denial that he was impaired when the officer administered the sobriety and breath tests.17 The overwhelming evidence supported the jury's determination that Campbell drove while his ability was impaired by alcohol. The Court found that any error in admitting the officer's testimony as lay witness testimony had not affected the defendant's substantial rights and was thus harmless.

Campbell is distinguishable from an earlier 2019 Colorado Supreme Court decision in People v. Kubuugu, where the Court found that the trial court's error in admitting a deputy's testimony on metabolized alcohol as lay testimony was not harmless.18

Campbell is most akin to the decision in Schultz v. State, where the Maryland Court of Special Appeals referenced drawbacks of the HGN test:

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.19

Campbell's Effect in Trial Court Proceedings

Campbell's effect on trial proceedings differs depending on whether the SFST evidence at issue is considered during trial or at a preliminary motion hearing.

During Trial

The Campbell decision signals challenges to an officer's qualifications as an expert in cases where HGN testing was performed. In Colorado, an officer must meet the test enunciated in People v. Shreck, where the Colorado Supreme Court followed the Daubert20 standard and held that in making decisions on admissibility of expert testimony, a court must find on the record that the testimony is appropriate because it is (1) regarding scientific principles that are reasonably reliable, (2) helpful to the jury, (3) probative under CRE 403, and (4) given by a qualified expert or witness qualified to make opinions on the issues.21

Other states have seen appeals on whether their version of Rule 702...

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