NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID G. BALLARD, )
) Court of Appeals No. A-5679
Appellant, ) Trial Court No. 3AN-94-1596 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1584 - April 3, 1998]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, William H. Fuld and Natalie K. Finn, Judges.
Appearances: Paul E. Malin, Assistant Public
Defender, and John B. Salemi, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Mannheimer,
Judge, and Wolverton, District Court Judge. [Coats, Judge, not
participating.]
MANNHEIMER, Judge.
This appeal requires us to decide whether the horizontal
gaze nystagmus test, or "HGN" test, satisfies the standard for
admissibility of scientific evidence established in Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), and reaffirmed as the
governing standard in Alaska in Contreras v. State, 718 P.2d 129,
134-36 (Alaska 1986).
In the HGN test, the subject is asked to cover one eye and
then use the remaining eye to track the lateral progress of an
object (usually a pen) as the officer moves the object at eye-level
across the subject's field of vision. As the moving object travels
toward the outside of the subject's vision, the officer watches the
subject's eye for "nystagmus" an involuntary jerking movement of
the eyeball. If the person's eyeball exhibits nystagmus, and
especially if the nystagmus occurs before the moving object has
traveled 45 degrees from the center of the person's vision, this is
taken as an indication that the person is intoxicated. See the
description of the HGN test contained in State v. Grier, 791 P.2d
627, 629 (Alaska App. 1990).
As we explain in more detail below, we conclude that the
horizontal gaze nystagmus test is premised on generally accepted
scientific theory. Although there is genuine dispute as to whether
a person's precise level of intoxication or precise blood-alcohol
level can be ascertained by his or her performance on the HGN test,
there is no dispute that alcohol consumption causes observable
nystagmus. We conclude that, if a person demonstrates nystagmus
during the HGN test, this is a reasonable indication that the person
may have consumed alcohol and is potentially intoxicated. There-
fore, with certain qualifications explained below, we hold that
evidence of a person's performance on the HGN test is admissible
under the Frye-Contreras rule.
How This Case Arose
In the early morning of March 1, 1994, Alaska State
Trooper Lee Robert Oly was patrolling the Glenn Highway, accompanied
by his supervisor, Trooper Oscar Siegfried. [Fn. 1] Oly observed
an oncoming Toyota pull off to the other side of the highway.
Intending to check on the welfare of the Toyota's driver, Oly turned
his patrol car around and pulled up behind the stopped Toyota.
Ballard, who was driving the Toyota, got out of his vehicle.
Ballard had to steady himself against the Toyota, and he staggered
as he walked toward Oly. When Ballard stopped walking, he continued
to have difficulty maintaining his balance; he swayed from side to
side. Oly smelled the odor of alcoholic beverages on Ballard's
breath, and he saw that Ballard appeared to have difficulty focusing
his eyes (which were bloodshot). Based on these observations, Oly
decided to administer field sobriety tests to Ballard.
Ballard performed several field sobriety tests; one of
these was the horizontal gaze nystagmus test. After Ballard failed
all of the field sobriety tests, Oly arrested him and charged him
with driving while intoxicated.
Ballard's Pre-Trial Objection to the HGN
Evidence and the Testimony Presented at the Frye Hearing
Before trial, Ballard asked the district court to exclude
all evidence of his performance on the HGN test, contending that the
HGN test did not meet the Frye standard for admissibility. District
Court Judge Natalie K. Finn conducted an extensive hearing into the
scientific foundations of the HGN test, as well as its reliability
and validity. [Fn. 2]
At this hearing, the State presented an instructional
videotape produced by the National Highway Transportation Safety
Administration (NHTSA), demonstrating its recommended procedure for
administering a three-part HGN test. The State also called Trooper
Tim Schoenberg, who demonstrated the three parts of the test in the
courtroom: asking the subject to track a moving object, asking him
to focus on the object at the limits of his peripheral vision, and
asking him to focus on the object at an angle of 45 degrees from the
center of his field of vision. Schoenberg not only described how
the HGN test is to be administered, but he also described how the
HGN test is taught to officers.
Trooper Oly, the officer who arrested Ballard, then
testified concerning his own training in the three-part HGN test.
Oly told the court that his training included administering the HGN
test to nineteen test subjects. Like Schoenberg, Oly demonstrated
the three portions of the HGN test on a volunteer in the courtroom.
(One of Ballard's expert witnesses, Dr. Ronald Nowaczyk,
later critiqued Oly's performance. Nowaczyk noted that Oly had
performed the three portions of the HGN test on one of the subject's
eyes, then had performed the three portions of the test on the
subject's other eye; the NHTSA recommends performing each portion
of the test on each eye before moving to the next portion of the
test. However, Dr. Nowaczyk did not suggest that this variation
would affect the test results.)
The State's third witness was Marcelline Burns, a research
psychologist who was one of the scientists who conducted two seminal
studies of the HGN test under the auspices of the National Highway
Traffic Safety Administration. These two studies, conducted between
1975 and 1981, were admitted as exhibits at the Frye hearing.
Burns testified that, within the scientific community, it
was well-accepted that alcohol intoxication causes nystagmus.
Nystagmus is not, however, an unerring indicator of alcohol
intoxication; it can also be caused by other drugs, by brain trauma,
or by certain diseases. Moreover, approximately half of the
population will exhibit an eyeball tremor when fixing their eyes on
an object at the limit of their peripheral vision. For this reason,
of the three parts of the HGN test conducted on Ballard, checking
for nystagmus at maximum deviation of the eyes was the least
informative. Burns conceded that only "distinct nystagmus" during
this portion of the test would be a meaningful indicator of
intoxication.
Although Burns declared that the HGN test is a "highly
sensitive" measure of whether a person is intoxicated, she also
stated that the HGN test was never designed to be used alone, but
rather in conjunction with other field sobriety tests such as the
walk-and-turn test and the one-leg-stand test. Burns added,
however, that among such a battery of tests, the HGN test has
distinctive value because nystagmus is an involuntary response. An
alcoholic can learn to control or compensate for the effects of
intoxication on balance, physical agility, and verbal acuity, but
it is all but impossible to disguise nystagmus.
Burns told the district court that, for purposes of
assessing the reliability and validity of the HGN test, the relevant
community of researchers and practitioners consisted of scientists
concerned with alcohol and drug research, scientists concerned with
traffic safety, and law enforcement professionals. Among this
community, Burns testified, the battery of three field sobriety
tests that includes walk-and-turn, one-leg-stand, and HGN is
generally accepted as an accurate indicator of a person's
intoxication.
Ballard presented two expert witnesses at the hearing.
The first was Dr. Craig Smith, a neuro-ophthalmologist. Smith
conceded that the scientific community generally accepts the fact
that alcohol intoxication affects people's ability to move their
eyes, and that intoxication will cause nystagmus. However, Smith
pointed out that nystagmus is also caused by diseases of the brain,
by damage to or disease of the eye muscles, and by various
medications and drugs. According to Smith, nystagmus can also
appear naturally in about two to five percent of the population.
Smith conceded that alcohol-produced nystagmus is
observable by police officers in the field, but he strenuously
questioned whether precise observations of nystagmus could be made
outside of a controlled laboratory setting. In particular, Smith
asserted that it is "impossible" for a police officer conducting a
traffic stop to detect whether a driver's eyes are smoothly pursuing
a moving object. Smith pointed out that the lighting at the scene
of a traffic stop can be inadequate to observe the subject's eyes.
He also pointed out that, if the driver is balancing unsteadily, the
driver's eyes may not move smoothly when tracking an object because
the driver's head is itself moving. Smith also pointed out the
possibilities that the officer may not move the target object
smoothly, or that the driver is myopic and therefore not able to see
the object clearly. Smith told the court that he had ridden along
with police officers some ten to twelve times, and he had observed
that the HGN test was very difficult to perform during a roadside
traffic stop.
Smith also testified that, even when nystagmus is visible,
it is quite difficult to determine whether the angle of onset is
less than 45 degrees unless one is armed with a protractor. Smith,
like Burns, testified that the occurrence of nystagmus at maximum
deviation is not a good indicator of intoxication because some 50
to 60 percent of the normal population displays such nystagmus.
However, on cross-examination by the court, Smith admitted that the
nystagmus manifested by half the population at the edges of their
vision was a "tiny" nystagmus, readily distinguishable from the
"distinct" nystagmus that occurs in people who have blood-alcohol
levels exceeding .10 percent.
Ballard's second expert witness was Dr. Ronald Nowaczyk,
a psychology professor who specializes in behavioral statistics and
research. Nowaczyk explained the concepts of "reliability" and
"validity" as they apply to scientific testing. (See footnote 2,
supra.) Nowaczyk told the court that, having analyzed the results
of the NHTSA studies on horizontal gaze nystagmus, he had concluded
that the reliability of the HGN test (that is, the uniformity of HGN
testing results) appeared to be between 60 and 66 percent too low
a percentage for the HGN test to be acceptable as a method of
"clinical diagnostic testing" for determining "whether someone meets
a certain level [of intoxication]".
Turning to the validity of the HGN test (that is, the
likelihood that the test accurately measures intoxication or non-
intoxication), Nowaczyk told the court that he could not come to a
statistical conclusion based on the data available to him. However,
he believed that the HGN test "tend[s] to overestimate" people's
levels of blood alcohol. Nowaczyk referred the court to a field
study of the HGN test which showed that significant numbers of
drivers failed the HGN test even though their blood-alcohol levels
were below .10 percent. According to Nowaczyk, this field study
showed that 15 percent of drivers with blood-alcohol levels of .00
to .04 percent failed the HGN test. Among drivers with blood-
alcohol levels of .05 to .09, 64 percent failed the HGN test.
However, among drivers with blood-alcohol levels of .10 to .15, the
percentage failing the HGN test rose to 95. Under cross-
examination, Nowaczyk admitted that the HGN test appeared to be
quite accurate in confirming the intoxication of people whose blood-
alcohol level is .10 percent or higher.
After considering this testimony and reviewing the
exhibits, Judge Finn ruled that the horizontal gaze nystagmus test
met the Frye standard for admission of scientific evidence. The
judge concluded that the scientific community accepted the
connection between the appearance of nystagmus and the consumption
of alcoholic beverages. While Judge Finn acknowledged that the HGN
test might not be reliable enough to satisfy the standards for tests
employed to make medical diagnoses, she concluded that the HGN test
was a sufficiently reliable indicator of intoxication to be
introduced in conjunction with the results of other field sobriety
tests to establish whether a driver was under the influence.
Responding to Ballard's further objections that Trooper Oly might
not have administered the HGN tests in the approved manner, Judge
Finn ruled that such questions were properly left to the jury.
Although Judge Finn decided Ballard's Frye motion,
District Judge William H. Fuld was the judge who presided over
Ballard's trial. Shortly before the trial began, Judge Fuld warned
the State that its evidence concerning Ballard's performance on the
HGN test could not include any testimony estimating Ballard's level
of blood alcohol based on the HGN results. Judge Fuld further
warned the State not even to try to quantify Ballard's performance
by referring to the point score used by the troopers to assess a
driver's performance on the test. The judge told the prosecutor,
"Keep the numbers out of it. ... We won't hear numbers. You can
ask [the trooper] whether [Ballard] passed [the test] or failed it."
Trial Testimony Concerning Ballard's
Performance on the HGN Test and the Various Other Field Sobriety
Tests
At trial, Trooper Oly described how he administered the
three parts of the HGN test to Ballard. Holding a pen about six
inches in front of Ballard's face, Oly moved the pen to the left and
then to the right, watching Ballard's eyes for "smooth pursuit" of
the moving pen. Oly next held the pen all the way to the left, then
all the way to the right, to see whether Ballard's eyes exhibited
involuntary jerking when he looked at the pen at the extremes of his
vision. Finally, Oly brought the pen to approximately a 45-degree
angle from the center of Ballard's face, to see if Ballard's eyes
jerked while looking at the pen at that angle.
Oly testified that Ballard's performance on the HGN test
was among the worst of all the people Oly had tested. According to
Oly, Ballard's eyes jerked during all three stages of the test. Oly
told the jury that Ballard's performance on the test was
"dramatically different" from what one would expect from a sober
person that Ballard's performance indicated that he was "a very
impaired individual".
Oly also described the balance and agility tests he had
administered to Ballard. In one of these tests, Oly had Ballard
stand on one leg. According to Oly, Ballard did "very poorly" on
this test: to maintain his balance, Ballard was forced to spread
his arms and either put the other foot down or hop onto the other
foot. Again, Oly characterized Ballard's performance on this test
as characteristic of a "very impaired person". Ballard also failed
the walk-and-turn test: he wobbled and lost his balance while
standing, walking, and turning.
Following these tests, Oly administered verbal tests to
Ballard. Ballard was unable to recite the alphabet completely, and
he was unable to count backwards from 100 by fives without error.
Again, Oly testified that Ballard's performance was consistent with
someone who had been drinking and was impaired.
Based on Ballard's performance on all these field sobriety
tests, as well as Oly's observations of Ballard's eyes, breath, and
movements when he first got out of the Toyota, Oly concluded that
there was "absolutely no doubt" that Ballard was intoxicated (as
opposed to simply being tired and having consumed one or two
drinks). Oly then arrested Ballard for driving while intoxicated.
Trooper Oscar Siegfried, who was riding as Oly's
supervisor and who observed this entire encounter, confirmed that
Ballard was swaying while standing and walking, that Ballard failed
the walk-and-turn and one-leg-stand tests, that Ballard appeared
highly intoxicated, and that there was a strong odor of alcoholic
beverages on Ballard's breath, an odor that was obvious once Ballard
was placed in the patrol car. Siegfried testified that it was "not
a close call" as to whether Ballard was intoxicated. Siegfried did
not mention the HGN test during his testimony. [Fn. 3]
Ballard took the stand and testified that he had not been
intoxicated. He said that he had consumed three drinks the evening
before, then had gone to sleep for approximately seven hours.
Ballard said that he was still drowsy from this lengthy sleep when
the troopers stopped him. Ballard also testified that his balance
was normally not that good and that his eyes sometimes had trouble
tracking moving objects.
The State introduced no Intoximeter evidence; Ballard was
prosecuted under AS 28.35.030(a)(1), which prohibits driving "while
under the influence of intoxicating liquor".
In his summation to the jury at the close of the trial,
the prosecutor mentioned the HGN test once: "You have Trooper Oly
saying that he administered the HGN test and, based upon his
training and experience, he saw that the result was that the
defendant was impaired." However, the prosecutor immediately moved
on to the details of the other field sobriety tests that Ballard had
failed. The prosecutor emphasized that the troopers had decided to
arrest Ballard based on the results of the entire battery of tests,
and he urged the jury to determine Ballard's guilt using the same
totality-of-circumstances analysis: "You've just got to look at
everything."
Ballard's attorney mentioned the HGN test once during his
summation as well, arguing that it was inconsistent for Trooper Oly
to claim that Ballard had been unsteady on his feet and yet able to
hold his head steady during the HGN test. The defense attorney also
made a general remark that could have been interpreted to include
the HGN test along with the other field sobriety tests: "[W]hat
should ... be clear to you from hearing how these different tests
work is [that], although they may in certain circumstances identify
those people who are under the influence of alcohol or impaired by
alcohol, ... these tests [also] have the potential for identifying
those people who don't perform well under pressure." Other than
these quoted excerpts, the two attorneys did not emphasize or even
mention the HGN test to the jury during summation.
The jury convicted Ballard of driving while intoxicated.
He now appeals, contending that the State should not have been
permitted to introduce evidence of his performance on the HGN test.
HGN Evidence Satisfies the Frye Test
Under the Frye test (which sets the minimum standard for
admissibility of scientific evidence in Alaska), the proponent of
scientific evidence is required to demonstrate that the evidence
rests on generally accepted scientific principles or discoveries.
Contreras, 718 P.2d at 134 (citing Frye, 293 F. at 1014). Ballard
argues that the scientific theory underlying the HGN test is not
generally accepted in the scientific community, and thus HGN
evidence does not satisfy the Frye test.
As can be seen from our description of the testimony
presented in the district court, all of the expert witnesses agreed
that alcohol consumption causes nystagmus. While there are other
substances and disorders that also cause nystagmus, nystagmus is
generally recognized as one effect of alcohol consumption.
Further, there appears to be scientific agreement that the
more alcohol in a person's blood, the more likely the person is to
exhibit observable nystagmus. For example, in one study cited by
Ballard's expert, Dr. Nowaczyk, the HGN test was administered to
drivers with a wide range of blood-alcohol levels: 15 percent of
drivers with blood-alcohol levels of .00 to .04 percent failed the
HGN test; 64 percent of drivers with blood-alcohol levels of .05 to
.09 percent failed the test; and 95 percent of drivers with blood-
alcohol levels of .10 to .15 percent failed the HGN test.
In the last decade, numerous state courts have addressed
the question of whether HGN evidence meets the Frye standard. Of
the courts that have resolved this issue, most have held that HGN
evidence does not satisfy Frye if the HGN test results are
introduced to establish that the person tested had a particular
level of blood alcohol. However, these same courts hold that HGN
evidence satisfies Frye if the HGN test results are admitted for the
more modest purpose of indicating that the person has consumed
alcohol and is potentially under the influence. See Whitson v.
State, 863 S.W.2d 794, 797-98 (Ark. 1993); State ex rel. Hamilton,
799 P.2d 855, 857-58 (Ariz. 1990); State v. Superior Court, 718 P.2d
171, 181-82 (Ariz. 1986); People v. Joehnk, 42 Cal.Rptr.2d 6, 15-17
(Cal. App. 1995); Hawkins v. State, 476 S.E.2d 803, 808-09 (Ga. App.
1996); State v. Garrett, 811 P.2d 488, 491 (Idaho 1991); People v.
Buening, 592 N.E.2d 1222, 1227-28 (Ill. App. 1992) [Fn. 4]; People
v. Weibler, 640 N.E.2d 24, 27 (Ill. App. 1994); State v. Armstrong,
561 So.2d 883, 887 (La. App. 1990); State v. Taylor, 694 A.2d 907,
911-12 (Me. 1997); Schultz v. State, 664 A.2d 60, 69-70, 74, 75-77
(Md. App. 1995); People v. Berger, 551 N.W.2d 421, 423-24 (Mich.
App. 1996) (per curiam); City of Fargo v. McLaughlin, 512 N.W.2d
700, 707-08 (N.D. 1994); State v. O'Key, 899 P.2d 663, 689-690 (Or.
1995) [Fn. 5]; State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993);
Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994);
Richardson v. State, 766 S.W.2d 538, 540 (Tex. App. 1989).
Ballard's brief cites several cases in which the admission
of HGN evidence was held to be error because the trial court failed
to recognize the Frye issue or hold a hearing to decide it.
However, Ballard cites no cases in which the Frye issue was actually
litigated and an appellate court decided that HGN evidence did not
meet the Frye standard. [Fn. 6]
From our examination of the record in this case, as well
as our examination of the lengthy discussions of the scientific
research and literature concerning HGN that is contained in such
decisions as State v. O'Key, Schultz v. State, and State v. Superior
Court, supra, we conclude that the science underlying the HGN test
and, in particular, the principle that alcohol consumption causes
nystagmus is generally accepted within the relevant scientific
community. [Fn. 7] Moreover, there is general agreement that a
properly trained police officer (or other trained lay person) can
observe nystagmus under field conditions. While there is
considerable debate about the power of the HGN test to disclose or
predict a person's precise level of blood alcohol, there is
widespread agreement that horizontal nystagmus is a reliable and
valid indicator of the presence of alcohol in a person's blood and,
consequently, of the person's potential intoxication.
Ballard contends that HGN testing is not a "reliable"
indicator of intoxication that is, the test does not yield
sufficiently uniform results. He points to the testimony of Dr.
Nowaczyk, who quoted a study indicating that HGN testing is reliable
only 59 to 66 percent of the time. Other studies have shown much
higher reliability for the HGN test; these studies suggest that the
three-test battery recommended by the NHTSA (HGN, walk-and-turn,
one-leg-stand) is the most accurate field technique for gauging
whether a person is under the influence. See Schultz, 664 A.2d at
73 n.12. In our view, the difference among the studies is not
significant.
Dr. Nowaczyk told the court that a reliability rate of 59
to 66 percent would be acceptable for some purposes (specifically,
medical research), but would not be considered acceptable for making
medical diagnoses or for "making decisions as to whether someone
meets a certain level" of blood-alcohol. As we have explained
above, we do not find that HGN testing is a reliable indicator of
a person's precise level of blood alcohol. Our conclusion is more
modest: we find HGN testing to be a reliable indicator of a
person's alcohol consumption and, to that extent, HGN results are
relevant circumstantial evidence to prove a person's impairment.
Even assuming that the HGN test is reliable only 60 percent of the
time, this is a sufficient level of reliability for the HGN test to
be admitted as an indicator of potential intoxication.
Ballard also argues that HGN testing is not a "valid"
indicator of intoxication that is, the test does not yield
sufficiently accurate evidence of intoxication. He relies on
studies showing that many people fail the HGN test even though their
blood-alcohol levels are lower than .10 percent. Ballard asserts
that the validity of the HGN test is undermined by these "false
positives". But Ballard's argument (and most of the studies he
cites to support it) are premised on the assumption that, if the HGN
test is a valid indicator of intoxication, then a person whose
blood-alcohol level is lower than .10 percent should pass the test.
This premise is mistaken.
Alaska law forbids a person from driving while he or she
is under the influence of alcohol when the person's ability to
control a motor vehicle is impaired. AS 28.35.030(a)(1). While the
law also forbids people from driving when their blood-alcohol level
is .10 percent or higher, see AS 28.35.030(a)(2), people can be
"under the influence" for purposes of 030(a)(1) even when their
blood-alcohol level is less than .10 percent. Thus, when a person
with a blood-alcohol level of less than .10 percent fails the HGN
test, this does not necessarily mean that the HGN test has falsely
identified that person as being under the influence of alcohol.
Moreover, as all of the expert witnesses pointed out,
nystagmus is caused by substances other than alcohol, as well as by
various disorders and diseases. The fact that a sober person fails
the HGN test does not mean that the tester mistakenly identified
nystagmus when there was none. It could also mean that the person
exhibited nystagmus, but the nystagmus occurred for reasons
unrelated to alcohol consumption. In this respect, the HGN test is
no different from the other field sobriety tests that measure
coordination, balance, or verbal responses: people can fail these
tests for reasons other than intoxication.
The real question is whether there is a sound scientific
basis for concluding that a person's performance on the HGN test is
a relevant factor to be considered when determining whether that
person is under the influence of alcohol. As we have already
discussed, even the studies cited by Ballard show that performance
on the HGN test is related to blood-alcohol level: people with low
blood-alcohol levels (.00 to .04 percent) are quite likely to pass
the HGN test, some 50 to 65 percent of people with blood-alcohol
levels of .05 to .09 percent fail the test, and people with high
blood-alcohol levels (.10 percent and above) are quite likely to
fail the test. Despite the fact that a person's level of
performance on the HGN test can not necessarily be tied to a
particular blood-alcohol level, the studies show that the HGN test
is a significant indicator of alcohol consumption. Thus, it is
circumstantial evidence of impairment caused by alcohol consumption.
For these reasons, we conclude that HGN evidence meets the
Frye standard for admission of scientific evidence if the test
results are admitted for the limited purpose of establishing that
a person has consumed alcohol and is therefore potentially impaired.
While HGN testing may not, of itself, be sufficient to establish
intoxication, HGN test results are admissible as a factor to be
considered by the fact-finder when determining intoxication.
Testimony concerning a defendant's performance on a properly
administered HGN test is admissible on the issue of impairment,
provided that the prosecution claims no greater reliability or
weight for the HGN evidence than it does for evidence of the
defendant's performance on any of the other standard field sobriety
tests, and provided further that the prosecution makes no attempt
to correlate the HGN test result with any particular blood-alcohol
level, range of blood-alcohol levels, or level of impairment. [Fn.
8]
The Foundational Requirements for Introducing
HGN Evidence
Although we have ruled that HGN evidence (offered for the
limited purposes described above) satisfies the Frye standard,
another question of evidence law remains. Ballard questions whether
Trooper Oly was qualified to testify concerning Ballard's
performance on the HGN test.
The fact that particular scientific evidence meets the
Frye standard means only that this evidence is a proper subject for
testimony. Schultz, 664 A.2d at 70-71, 75-76. The party offering
such evidence must still present a witness who is qualified to
testify on this subject. In particular, under Alaska Evidence Rule
702, whenever a party intends to offer evidence concerning any
"scientific, technical, or other specialized knowledge", the party
must establish that the witness who will offer this evidence
possesses the "knowledge, skill, experience, training, or education"
to offer an informed opinion on the subject.
Among the courts who agree that HGN evidence satisfies the
Frye test, the virtually unanimous opinion is that a police officer
may testify to the results of HGN testing (that is, a scientist is
not required), but the government must establish as a foundational
matter that the officer has been adequately trained in the
administration and assessment of the test. See Hawkins, 476 S.E.2d
at 808-09; Buening, 592 N.E.2d at 1227-28; Taylor, 694 A.2d at 911-
12; Schultz, 664 A.2d at 75-76; Berger, 551 N.W.2d at 423-24;
McLaughlin, 512 N.W.2d at 707-08; O'Key, 899 P.2d at 689-690;
Emerson, 880 S.W.2d at 769.
We adopt the same rule. Further, we find that the State
met this foundational requirement in Ballard's case. At the pre-
trial hearing, the State presented extensive evidence concerning the
proper administration and assessment of the HGN test: the State
played a videotape produced by the NHTSA that demonstrated the
proper administration of the test, and the State offered the
testimony of Trooper Schoenberg, an HGN test instructor, who
demonstrated the test in the courtroom and explained how the test
results are scored. Trooper Oly, the officer who arrested Ballard,
then testified regarding how he had been trained to administer and
assess the HGN test, and he too demonstrated the three portions of
the test on a volunteer in the courtroom.
As noted above, Ballard presented only one criticism of
Oly's in-court demonstration of the test: Oly had performed all
three portions of the test on one eye before moving to the other
eye, while the NHTSA recommends alternating eyes. However, Ballard
gave the court no reason to believe that this variation could be
expected to make any difference in the test results. On this
record, Judge Finn could properly conclude that Trooper Oly had
received adequate training in the administration of the HGN test and
that Oly was therefore qualified to testify about the results of
Ballard's HGN test.
We recognize that Ballard potentially had another
foundational attack on the State's HGN evidence. Ballard could
argue that Trooper Oly failed to substantially comply with proper
testing procedures when he administered the test to Ballard.
Compare Williams v. State, 884 P.2d 167, 174 (Alaska App. 1994)
(holding that "substantial compliance" with Intoximeter procedures
is required to establish the foundation for admitting breath test
evidence).
Most of the courts cited above treat this issue as
affecting the weight of HGN evidence rather than its admissibility.
They recognize that a poorly administered HGN test may yield results
that are not particularly probative, but they note that the same is
true of the other field sobriety tests.
On appeal, Ballard argues that proper testing procedure
is a foundational matter something that the State must prove
before HGN evidence can be admitted. Quoting People v. Leahy, 882
P.2d 321, 325 (Cal. 1994), he argues that the proponent of
scientific evidence "must demonstrate that correct scientific
procedures were used in the particular case". Ballard then faults
Judge Finn for failing to decide whether Oly properly administered
the HGN test to him.
Even assuming that a substantial variance from accepted
testing norms could render HGN evidence inadmissible, Ballard
presented no evidence of such a substantial variance at the pre-
trial hearing. It must be remembered that the primary purpose of
that pre-trial hearing was to determine whether HGN evidence met the
Frye standard for admissibility. Even if Judge Finn ruled that HGN
satisfied the Frye test, Ballard would still have another
opportunity (at his trial) to attack the particular procedures that
the trooper employed when administering the test to him.
This is seemingly the reason why the evidence presented
at the pre-trial hearing centered on the scientific basis for the
HGN test and the approved methods for administering the test, and
not on the particular procedures Oly employed when administering the
test to Ballard. Ballard's attorney did cross-examine Oly to a
limited extent about the trooper's administration of the HGN test
to Ballard (the procedures he used and the observations he made),
but this cross-examination occupies only 7 pages of transcript out
of a total of 420 pages.
As Judge Finn later noted in her written decision,
"[t]here was some discussion during the hearings ... about whether
the HGN test was administered accurately to [Ballard]." However,
given the evidence before her, Judge Finn could justifiably conclude
that Trooper Oly was generally familiar with the proper procedures
for administering and scoring the HGN test, and that Oly had
generally followed these procedures when he tested Ballard.
Accordingly, Judge Finn correctly ruled that any remaining questions
concerning the administration of the HGN test to Ballard, and how
Oly's testing procedures might have affected the probative force of
the test results, were matters to be brought out during cross-
examination and then argued to the jury, just as questions about the
proper administration of the other field sobriety tests are argued
to the jury.
Ballard does not contend on appeal that Trooper Oly's
testimony reveals any significant non-compliance with established
testing procedures. We recognize that a trial court retains the
discretion to exclude HGN test results if the test procedures were
so substandard as to preclude any reasonable juror from concluding
that the results were meaningful. However, our review of the record
in Ballard's case reveals that any such foundational objection would
have been meritless: there was clearly sufficient evidence for the
jury to find that the HGN test had been administered in a manner
likely to yield relevant results.
The Trooper's Assessment that Ballard's HGN
Test Results Showed that He Was "Very Impaired"
Thus far, we have concluded that a properly qualified law
enforcement officer can testify concerning the administration of the
HGN test and then give an assessment of a defendant's test results
including an explanation that the presence of nystagmus is an
indication that the defendant had been consuming alcohol, thus
providing circumstantial evidence that the defendant was under the
influence. We have further concluded that, based on the record
before her, Judge Finn could properly find that Trooper Oly was
properly qualified to administer the HGN test to Ballard and to
assess the test results. Because of Judge Finn's ruling, Oly could
testify that Ballard had failed the HGN test and that this failure
indicated that Ballard had alcohol in his blood and might currently
be under the influence.
However, we have also concluded that HGN evidence is not
admissible to prove that a defendant has a particular level of blood
alcohol. Because of this ruling, we are concerned by one aspect of
Trooper Oly's testimony his elaboration that Ballard's HGN test
results showed that Ballard was "a very impaired individual". Oly's
assertion concerning Ballard's degree of intoxication intrinsically
rests on the premise that the worse a person's performance on the
HGN test, the more impaired that person must be. In our view, this
testimony is perilously close to the type of HGN testimony we have
rejected: the assertion that HGN test results can be correlated to
a particular blood-alcohol level. (We further note that, despite
Trooper Oly's training in the administration and scoring of the HGN
test, the record fails to show that he has the kind of scientific
expertise that would qualify him to draw any connection between the
degree of onset or obviousness of a person's nystagmus and the
degree of that person's impairment.)
However, even though this aspect of Trooper Oly's testi-
mony may have amounted to an impermissible attempt to correlate
Ballard's HGN test result with a particular level of impairment, we
conclude that the error, if any, was harmless under the facts of
this case. Both Oly and his supervisor, Trooper Siegfried, gave
detailed testimony describing the numerous ways in which Ballard's
intoxication was manifest: his breath, his eyes, his inability to
stand or balance, his inability to recite the alphabet or to count
backwards. Moreover, the prosecutor at Ballard's trial did not
accentuate the HGN test. The prosecutor noted that the HGN test
results indicated that Ballard was "impaired", but the prosecutor
gave equal prominence to Ballard's poor performance on the other
field sobriety tests, and he urged the jury to "look at everything"
when determining whether Ballard was under the influence. Given
this record, we conclude that the jury's verdict could not have been
affected by Oly's arguably impermissible assessment of the HGN test
results.
Conclusion
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
Oly was a newly-commissioned trooper who was completing his
field training under the supervision of Trooper Siegfried.
Footnote 2:
As explained by Dr. Ronald Nowaczyk, one of the expert
witnesses in this case, the "reliability" of a scientific test or
procedure refers to the degree of uniformity in the results the
likelihood that the test or procedure will again and again yield the
same results under the same testing conditions. The "validity" of
a test or procedure refers to the likelihood that the results
accurately reflect the presence or absence of the thing the
scientists are looking for. See Charles R. Honts & Susan L. Amato-
Henderson, "Horizontal Gaze Nystagmus Test: the State of the Science
in 1995", 71 North Dakota Law Rev. 671, 677 (1995).
Footnote 3:
Siegfried made one passing reference to Ballard's "high
visual problems with motor skills". From the context of the remark,
it appears that Siegfried was speaking of Ballard's "high[ly]
vis[ible] problems" with his motor skills, rather than Ballard's
performance on the HGN test.
Footnote 4:
But see People v. Kirk, 681 N.E.2d 1073, 1077-78 (Ill. App.
1997), declining to follow Buening on the issue of whether HGN has
been so widely accepted at the appellate level that, even in the
absence of a Frye hearing, a court can take judicial notice that HGN
meets the Frye test.
Footnote 5:
Oregon does not follow the Frye test. Nevertheless, the
O'Key court found that the scientific principles underlying HGN
testing are in fact generally accepted within the relevant
scientific community. O'Key, 899 P.2d at 686.
Footnote 6:
Ballard does cite one case, Young v. City of Brookhaven, 693
So.2d 1355, 1360-61 (Miss. 1997), in which a state supreme court
ruled that the scientific principles underlying HGN do not meet the
Frye standard. However, the Mississippi court's reasoning is simply
confused.
There was no Frye hearing in Young, and the defendant appealed
on precisely that basis. He claimed that HGN was "scientific
evidence" for purposes of the Frye rule, and that therefore the
State should not have been able to introduce testimony about the HGN
results without first presenting an expert witness to lay a Frye
foundation. After reviewing decisions from other states, the
Mississippi Supreme Court adopted the majority view that HGN is
indeed scientific evidence. From this premise, however, the
Mississippi court reached a surprising conclusion. Instead of
ruling that the HGN evidence should not have been admitted because
the trial court held no Frye hearing, the Mississippi court
concluded that the scientific principles underlying HGN are not
generally accepted within the scientific community:
We find that the HGN test is a scientific test. ...
Whereas most other field sobriety tests arise out of a juror's
common experiences, ... the HGN test relies upon a scientific[] ...
set of observations.
Therefore, this Court finds that the HGN test is not
generally accepted within the scientific community and cannot be
used as evidence to prove intoxication or as a mere showing of
impairment.
Young, 693 So.2d at 1360-61.
In this passage, the Mississippi court confuses two issues:
(a) does HGN testing rest on scientific principles, so that a Frye
hearing must be held before HGN evidence can be introduced? and
(b) if a Frye hearing were held, would the scientific principles
underlying the HGN test prove to be generally accepted within the
scientific community? The Mississippi court decided (as we decide
here) that HGN evidence is "scientific evidence" for Frye purposes.
It therefore follows that HGN evidence can not be admitted unless
the proponent of the evidence presents expert testimony to prove
that HGN satisfies the Frye test. There was no Frye hearing in the
Mississippi trial court, so the Mississippi Supreme Court could draw
no conclusions about the scientific acceptance of HGN from the trial
court record. Moreover, none of the case law cited by the
Mississippi Supreme Court holds that HGN fails to satisfy Frye. In
short, there was no factual or logical basis for the Mississippi
court's conclusion that the principles underlying HGN are not
generally accepted in the scientific community.
Footnote 7:
On appeal, Ballard faults the district court for indicating
that one of his expert witnesses might not be within the relevant
community of scientists whose views are to be considered when
deciding the Frye issue. As indicated in our discussion, we have
considered the views of both of Ballard's expert witnesses, and our
decision is premised on the assumption that both of Ballard's
witnesses are members of the relevant scientific community.
Footnote 8:
The government may present evidence explaining the scientific
underpinnings of the HGN test in response to a defense attack on the
meaning of the test results. However, such evidence would have to
be offered through the testimony of a person qualified as an expert
witness under Alaska Evidence Rule 702.
