The Admissibility of the Horizontal Gaze Nystagmus (hgn) Field Sobriety Test and Lay Opinion Testimony in State v. Baue Introduction

• Publication year: 1999

34 Creighton L. Rev. 321. THE ADMISSIBILITY OF THE HORIZONTAL GAZE NYSTAGMUS (HGN) FIELD SOBRIETY TEST AND LAY OPINION TESTIMONY IN STATE V. BAUE INTRODUCTION

Creighton Law Review

Vol. 34

Patrick S. Cooper - '02

In 1986, the Supreme Court of Nebraska implicitly concluded in State v. Borchardt,(fn1) that the horizontal gaze nystagmus ("HGN") field sobriety test was not admissible at trial because the scientific principle upon which the test was based was not generally accepted in the scientific community.(fn2) Since Borchardt, a number of Nebraska cases have analyzed the admissibility of scientific evidence.(fn3) Nebraska law requires a trial court to decide, preliminarily, whether the scientific principle was accepted in the scientific community.(fn4) In Nebraska, theproponent of scientific evidence must prove the principle's general acceptance by surveying judicial decisions and scientific publications, or by presenting testimony of experts who describe the attitudes of other scientists toward the scientific principle.(fn5) Nebraska law also requires the trial court to conduct a preliminary hearing outside the presence of the jury.(fn6) Furthermore, Nebraska law permits lay witnesses to testify that, in their opinion, an individual was intoxicated.(fn7)

Recently, in State v. Baue,(fn8) the Supreme Court of Nebraska revisited the admissibility of HGN evidence.(fn9) In Baue, the court concluded that the scientific basis of the HGN test, that consumption of alcohol induced nystagmus, was generally accepted by the scientific community.(fn10) The Baue court reached its conclusion after noting that the trial court held a pretrial hearing on HGN testing outside the presence of the jury.(fn11) The court surveyed judicial decisions from other jurisdictions to determine that HGN was accepted in the scientific community.(fn12) The Baue court reviewed the testimony of a Nebraska state trooper who testified that the defendant had failed the HGN field sobriety test.(fn13) The court also noted that nystagmus may have other causes.(fn14) However, the court agreed with other state courts, acknowledging that the results of the HGN test, when used together with other field sobriety tests, could be used to establish that a personmight be impaired by alcohol.(fn15) The Baue court overruled Borchardt to the extent that it had previously concluded that HGN was not generally accepted by the relevant scientific community.(fn16)

This Note will first review the facts and holding of Baue.(fn17) This Note will then examine relevant Nebraska law regarding the admissibility of scientific evidence and lay opinion testimony.(fn18) This Note will then contend that in Baue, the Supreme Court of Nebraska properly evaluated the admissibility of HGN evidence under the test set forth in State v. Reynolds.(fn19) The Baue court's evaluation of HGN evidence was proper because the court held a pretrial evidentiary hearing to determine that HGN evidence was generally accepted in the relevant scientific community.(fn20) The Baue court also properly excluded the jury from this hearing.(fn21) The court determined that HGN was generally accepted in the scientific community only after surveying judicial decisions and observing the testimony of three expert witnesses.(fn22) In addition, the court was correct in observing Trooper Lammers' testimony regarding the results of the HGN test because Nebraska law permitted lay witnesses to testify that, in their opinion, an individual was intoxicated.(fn23) Thus, the arresting officer properly based his testimony on his personal observations.(fn24) Furthermore, this Note will contend that Nebraska courts should take judicial notice of the reliability and validity of the HGN test.(fn25)

FACTS AND HOLDING

Trooper Greg Lammers of the Nebraska State Patrol stopped Jon Baue for speeding at approximately 1:30 a.m. on September 6, 1997.(fn26) Baue was traveling seventy-nine miles per hour in a fifty-five mile per hour speed zone.(fn27) Trooper Lammers noticed a strong smell of alcohol coming from Baue's car and further observed Baue's eyes were red andwatery.(fn28) Trooper Lammers questioned Baue, who admitted that he had consumed alcohol.(fn29)

Trooper Lammers administered six field sobriety tests to Baue.(fn30) Baue passed the alphabet test, the one-legged stand test, the counting backward test, and the walk-and-turn test.(fn31) Baue failed the horizontal gaze nystagmus ("HGN") test and the preliminary breath test.(fn32) Trooper Lammers arrested Baue for driving under the influence ("DUI") of alcoholic liquor and transported him to the sheriff's office to administer a breath test using the Intoxilyzer 4011AS test machine ("Intoxilyzer").(fn33)

Trooper Lammers adhered to a checklist approved by the Department of Health while administering the Intoxilyzer test.(fn34) Baue breathed into the Intoxilyzer.(fn35) The Intoxilyzer registered a digital reading of 0.12 but failed to print out a record card and registered an error reading, requiring that the test be re-administered.(fn36) TrooperLammers conducted the second test according to the checklist and received a valid result of 0.11.(fn37)

The County Court for Pierce County, Nebraska tried Baue's case.(fn38) The court held a pretrial evidentiary hearing regarding the scientific basis of the HGN test and the general acceptance of the HGN test in the scientific community.(fn39) At the evidentiary hearing, the prosecution called Dr. Marcelline Burns, Dr. Jack Richman, and Lieutenant Darrell Fisher.(fn40) Dr. Burns described the HGN test and explained her studies, which indicated that HGN was a reliable way to determine if an individual was impaired by alcohol.(fn41) Dr. Richman also described the HGN test.(fn42) Lieutenant Fisher described the training program state troopers undergo when learning to administer the HGN test.(fn43)

Dr. Burns was a research psychologist specializing in the effects of alcohol on human behavior.(fn44) At the pretrial hearing, the county court accepted Dr. Burns' qualifications as an expert witness in the field of research psychology.(fn45) Dr. Burns identified HGN as the involuntary jerking motions of the eyeballs.(fn46) Dr. Burns noted that a correlation existed between HGN and alcohol impairment, and a properly trained law enforcement officer could detect the jerking movement.(fn47) Dr. Burns further noted that HGN was a better indication of alcohol impairment than some field sobriety tests because the involuntary nature of nystagmus prevented it from being masked or avoided.(fn48) In addition, Dr. Burns testified that HGN was a behavioral symptom, comparing HGN to a foot stepping off the line during the walk-and-turn test or failing to remain balanced during the one-leg stand test.(fn49) Dr. Burns testified that her studies indicated the accuracy of the HGN test was verified approximately ninety percent of the time.(fn50) Dr. Burns did note that other factors may cause nystagmus, including depressant drugs, inhalants, tilene, a deprivation of oxygen to the brain,phencyclidine ("PCP"), brain injuries, and certain diseases.(fn51) Dr. Burns also testified that HGN had been accepted by the scientific community, which included law enforcement authorities, alcohol researchers, forensic scientists, and agencies responsible for traffic safety issues.(fn52)

Dr. Richman, an optometrist and optometry professor, testified at the pretrial hearing, basing his testimony on his experience with law enforcement officers on alcohol-related issues.(fn53) The court recognized Dr. Richman as an expert in the field of optometry.(fn54) Dr. Richman also described the HGN test.(fn55) Dr. Richman defined nystagmus as the inability to hold one's eyes steady on a stationary or moving target, causing the eyes to produce a jerking movement.(fn56) Dr. Richman also noted that HGN does not prove intoxication without corroborating evidence.(fn57)

Lieutenant Fisher, the Nebraska State Patrol director of training, appeared as an expert witness on HGN testing.(fn58) Lieutenant Fisher described the training program state troopers undergo when learning to administer the HGN test.(fn59) Lieutenant Fisher based his testimony on experience derived from about seven hundred hours of special training related to drug and alcohol impaired driving.(fn60) Lieutenant Fisher testified that HGN was one of three field sobriety tests recommended by the National Highway Transportation Safety Administration ("NHTSA").(fn61) Lieutenant Fisher explained the proper method of administering the HGN field sobriety test.(fn62) Lieutenant Fisher further stated that Nebraska state troopers undergo twenty-four hours oftraining regarding field sobriety tests, twelve of which were dedicated to HGN.(fn63) Lieutenant Fisher testified that officers could learn to accurately administer and interpret the HGN test to determine whether probable cause for a DUI arrest existed.(fn64)

Using the testimony of Dr. Burns, Dr. Richman, and Lieutenant Fisher, the court concluded that HGN was a valid way to determine whether an individual was impaired by alcohol.(fn65) The court also concluded that HGN testing was "generally accepted in the scientific community."(fn66) In addition, the court determined that additional foundational evidence was not required at trial.(fn67) The court made these determinations at the end of the pretrial evidentiary hearing.(fn68)

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