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XV. Field Sobriety Tests
A. HORIZONTAL GAZE NYSTAGMUS
1. IS ADMISSIBLE
Quinney v. State, 99 S.W.3d 853 (Tex.App.—Houston [14th Dist.] 2003, no pet.).
Gullatt v. State, 74 S.W.3d 880 (Tex.App.—Waco 2002, no pet.).
Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994).
2. OFFICER DOES NOT HAVE TO BE AN OPHTHALMOLOGIST TO TESTIFY
Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994).
Anderson v. State, 866 S.W.2d 685 (Tex.App.—Houston [1st Dist.] 1993, pet. ref’d).
Finley v. State, 809 S.W.2d 909 (Tex.App.—Houston [14th Dist.] 1991, pet. ref’d).
3. DOES THE OFFICER NEED TO BE CERTIFIED?
(a) NO, BUT RULE 702 REQUIREMENTS MUST BE MET
Price v. State, No. 03-04-00710-CR, 2006 WL 1707955 (Tex.App.—Austin 2006, pet. denied) (not designated for publication).
Burkhart v. State, No. 05-02-01724-CR, 2003 WL 21999896 (Tex.App.—Dallas, 2003, no pet.) (Not designated for publication).
Hackett v. State, No. 2-02-112-CR, 2003 WL 21810964 (Tex.App.—Fort Worth, 2003, no pet.) (Not designated for publication).
Kerr v. State, 921 S.W.2d 498 (Tex.App.—Fort Worth 1996, no pet.).
The Emerson case does not require that an officer have “practitioner certification” before his testimony on HGN is admissible. Such determination is to be covered by Rule 702 of the Texas Rules on Criminal Evidence.
(b) CERTIFICATION FROM A TRAINING COURSE WILL SUFFICE
Smith v. State, 65 S.W.3d 332 (Tex.App.—Waco 2001, no pet.).
Officer who had extensive training in standardized field sobriety tests which began at the police academy and continued with additional course work who also received certification from a course at Texas A & M University was qualified to testify about HGN.
(c) OFFICER MUST HAVE SOME CERTIFICATION
Ellis v. State, 86 S.W.3d 759 (Tex.App.—Waco 2002, pet. ref’d).
Officer who testified that he never completed the thirty test cases he was supposed to perform as part of a NHTSA course on HGN and who testified upon cross that he was not certified to perform HGN should not have been allowed to testify about HGN. Error was found to be harmless.
(d) LAPSED CERTIFICATION WILL NOT DISQUALIFY
Liles v. State, 2009 WL 3152174 (Tex.App.-Houston [1st Dist.] 2009) (Not designated for publication).
The Court held that even though the officer's state certification [see TEX.ADMIN.CODE §221.9 (2009)] in HGN had expired the month prior to testing the appellant, and he had not taken the requisite re-certification courses, he was nevertheless qualified to testify as an expert regarding the administration of the HGN test based on his training and experience.
4. IMPROPER FOR TRIAL COURT TO TAKE JUDICIAL NOTICE OF TEST’S RELIABILITY
O’Connell v. State, 17 S.W.3d 746 (Tex.App.—Austin 2000, no pet.).
It was improper for the trial judge to take judicial notice of the HGN test and to include a paragraph in the jury instruction to that effect. The Court holds that the reliability of HGN is a legislative fact, not an adjudicative fact, so Texas Evidence Rule 201 does not apply.
5. WITNESS CAN’T CORRELATE TEST TO BLOOD ALCOHOL CONCENTRATION
Smith v. State, 65 S.W.3d 332 (Tex.App.—Waco 2001, no pet.).
Webster v. State, 26 S.W.3d 17 (Tex.App.—Waco 2000, pet. ref’d).
Youens v. State, 988 S.W.2d 404 (Tex.App.—Houston [1st Dist] 1999, no pet.).
Officer’s testimony that his finding four clues in HGN told him there was a 75% chance that the subject had a B.A.C. over 0.10 was error. (In Webster error rendered harmless after instruction to disregard testimony.)
6. VERTICAL GAZE NYSTAGMUS/RESTING NYSTAGMUS
Stovall v. State, 140 S.W.3d 712 (Tex.App.—Tyler 2004) (reh. overruled).
Evidence of vertical nystagmus should not have been admitted by the trial court without conducting a Daubert/Kelly hearing. The Court points out that a trial court must actually examine and assess the reliability of VGN before it is admissible and no Court has (as of yet) done that. So Emerson could not be cited on the issue of admissibility as that case never mentioned VGN.
Quinney v. State, 99 S.W.3d 853 (Tex.App.—Houston [14th Dist.] 2003, no pet.).
In holding that it was error, albeit harmless, to allow testimony concerning “vertical nystagmus” and “resting nystagmus,” the Court distinguished these tests from horizontal gaze nystagmus tests as follows. In Emerson, the Court of Criminal Appeals exhaustively examined the scientific theory behind HGN testing, but did not address the theory behind “vertical nystagmus” or “resting nystagmus” testing. For “vertical nystagmus” and “resting nystagmus” evidence to be admissible, the proponent must present evidence of similar research of the scientific theory underlying those tests.
7. IMPACT OF FAILING TO PERFORM FSTs PER NHTSA GUIDELINES
Leverett v. State, 2007 WL 1054140 (Tex.App.—Dallas, 2007).
In holding that small variations in the way HGN was performed did not render it inadmissible, the Court pointed out that small variations in the administration of the test do not render the HGN test results inadmissible or unreliable but may affect the weight to be given to the testimony. Plouff v. State, 192 S.W.3d 213, 219 (Tex.App.-—Houston [14th Dist.] 2006, no pet.) (citing Compton v. State, 120 S.W. 3d 373, 378 (Tex.App.-—Texarkana 2003, pet.ref’d)). Here, the officer took approximately fifty-three seconds to complete the test but allegedly should have taken at least eighty-two. This difference in timing is not a meaningful variation. Cf. McRae v. State, 152 S.W.3d 739, 744 (Tex.App.—Houston [1st Dist.] 2004, pet. ref’d) (holding where officer admitted HGN test was invalid, court abused its discretion in admitting HGN testimony). Moreover, there are intervals in the HGN test where the officer is simply positioning the eyes for the next test, and any variation in the time to do so “would have no effect on the reliability of [the] test.”
Taylor v. State, No. 03-03-00624-CR, 2006 WL 1649037 (Tex.App.—Austin 2006, pet. ref’d) (not designated for publication).
This case involves an attack on the manner in which the HGN test was performed and attacks on the method put forward by the defense with expert witness Troy Walden. This case involves a detailed recitation of the attacks and is a good read for any prosecutor facing an expert attack on the FSTs. In response to the defense attack that the time of the passes was done incorrectly, the Court found that “Even if the time recommended by Walden and the NHTSA manual is accurate, the difference between this time and that estimated by Officer Clayton appears negligible.” The Court further found that there was nothing to show that the difference in time would result in a finding of smooth pursuit of appellant’s eyes rather than a lack of smooth pursuit. The Court also found that Walden’s testimony that Officer Clayton made only one pass of each eye in checking for smooth pursuit of the eyes when there should have been two passes of each eye did not provide a basis for excluding the HGN test. The defense also attacked the fact that the stimulus was held at maximum deviation for 3 rather than 4 seconds. Again the Court found the time difference negligible. The Court mentioned that the NHTSA manual was not introduced. Nor did the trial Court take “judicial notice” of any such manual.
Reynolds V. State, 163 S.W.3d 808 (Tex.App. Amarillo 2005) affirmed other grounds 204 S.W.3D 386 (Tex.Crim.App. 2006).
Compton v. State, 120 S.W.3d 375 (Tex.App.—Houston [1st Dist.] 2003, pet. ref’d).
Police officer’s slight deviation in number of seconds taken to conduct horizontal nystagmus (HGN) test from number of seconds recommended by DWI Detection Manual did not invalidate test results otherwise indicating that defendant was driving while intoxicated. The objection by the defense was that the officer administered the smooth pursuit portion of the HGN test in eleven seconds instead of the sixteen seconds prescribed in the DWI Detection Manual. He argued that the officer moved the stimulus two and a half seconds faster than recommended for each eye. The Court noted that the manual itself only provides approximations of the time required for properly conducting the tests. The Defendant’s argument that the slightly increased speed with which Baggett administered the test amounted to an inappropriate application of the technique, invalidating the results was found by the Court to be untenable and, if accepted, would “effectively negate the usefulness of the tests entirely.” As to the OLS, the officer failed to instruct the defendant to keep his arms by his side. The Court found that it was error to admit this test which it did find was not done per the manual but found that error to be harmless. The Court noted that the officer’s failure to instruct Compton to keep his arms at his side should have made the test easier to perform.
B. ONE LEG STAND = LAY WITNESS TESTIMONY
Taylor v. State, No. 03-03-00624-CR, 2006 WL 1649037 (Tex.App.—Austin 2006) (not designated for publication).
McRae v. State, 152 S.W.3d 739 (Tex.App.—Houston [1st Dist.] December 02, 2004, pet. ref’d).
We conclude that the testimony by the arresting officer concerning the one-leg stand, which follows, is lay witness testimony governed by Rule 701 of the Texas Rules of Criminal Evidence. That an officer uses terms like “standardized clues,” “test,” or “divided attention,” does not mean the officer is no longer testifying as a lay witness and begins to testify as an expert, who must therefore be qualified. The Court disagreed with U.S. v. Horn, 185 F Supp.2d 530, (D.Md.Jan. 31, 2002) opinion to the extent that it holds that using these words automatically changes lay testimony into expert testimony. We conclude that, under the circumstances demonstrated here, the words “clues,” “test,” and “divided attention” merely refer to observations by the peace officer based on common knowledge observations of the one-leg stand and do not convert the lay witness testimony into expert testimony. We hold that the officer’s testimony, as described above, concerning his observations of appellant’s performance on the one-leg-stand test were admissible as lay witness testimony under Rule 701 of the Texas Rules of Criminal Evidence.
C. WALK AND TURN = LAY WITNESS TESTIMONY
Plouff v. State, 192 S.W.3d 213 (Tex.App.—Houston [14 Dist.], 2006).
Arresting officer’s testimony regarding the results of walk-and-turn and one-leg stand tests was admissible as lay witness testimony in driving while intoxicated (DWI) prosecution. Officer’s testimony about defendant’s coordination, balance, and mental agility problems exhibited during one-leg stand and walk-and-turn tests was observation grounded in common knowledge that excessive alcohol consumption could cause problems with coordination, balance, and mental agility.
D. OFFICER MAY TESTIFY ABOUT SCIENTIFIC STUDIES FINDINGS RE: THE RELIABILITY OF FST’S
Lorenz v. State,176 S.W.3d 492 (Tex.App.—Houston [1 Dist.] 2004, pdr ref’d).
Arresting officer’s testimony that studies had found that the three field sobriety tests conducted on defendant were 91 to 95 percent accurate when used in conjunction with each other, did not impermissibly correlate to defendant’s quantitative blood-alcohol content (BAC).
E. OFFICERS MAY COERCE SUSPECT INTO PERFORMING FST’s
Oguntope v. State, 177 S.W.3d 435 (Tex.App.—Houston [1st Dist.] 2005, no pet.).
Officer told Defendant who had initially refused to do FSTs that he would take him to jail if he continued to refuse after which Defendant did FSTs. Prior to his plea, Defendant had moved to suppress the results of his FSTs on the grounds he was improperly coerced into doing the tests by the officer’s statement. The Court of Appeals held that there was no due process violation in admitting the test results. In so holding, the Court points out that Court of Criminal Appeals has held that authorities may compel a defendant to submit physical evidence of intoxication. It distinguishes this case from Erdman as there are no statutory warnings that apply to FSTs.
F. REFUSAL TO PERFORM FSTs = PC TO ARREST AND EVIDENCE OF GUILT
Maxwell v. State, 253 S.W.3d 309 (Tex.App.—Fort Worth, 2008, pet. ref’d).
Officer may consider defendant’s refusal to do Field Sobriety Tests when determining the issue of probable cause to arrest.
Texas Dept. Of Public Safety v. Nielsen, 102 S.W. 3d 313 (Tex.App.—Beaumont, 2003, no pet.).
Substantial evidence existed of probable cause for driver’s arrest for driving while intoxicated (DWI) where police officer noticed several signs of intoxication including alcoholic odor coming from vehicle, driver’s refusal to make eye contact with officer, driver’s refusal to roll down window, driver’s response that he had consumed two to four beers when asked if he had been drinking, and driver’s refusal to take field sobriety tests. The totality of the circumstances is substantial evidence of probable cause for Nielsen’s arrest.
Lonsdale v. State, No. 08-05-00139-CR, 2006 WL 2480342 (Tex.App.—El Paso, 2006, pet. ref’d).
Defendant challenged the admission of testimony that he refused to perform the field sobriety tests. He complains that the evidence was irrelevant, and if relevant, more prejudicial than probative. He also points to violations of his constitutional rights, arguing that the invocation of the right to counsel, the right to remain silent, and the right against unreasonable search and seizure may not be relied upon as evidence of guilt. The Court rejects these arguments and finds that a defendant’s refusal to perform FST’s is relevant and admissible. Court further held that it was proper argument that the jury could infer that his refusal was evidence of intoxication.
State v. Garrett, 22 S.W. 3d 650 (Tex.App.—Austin, 2000, no pet.).
Defendant’s argument–which prevailed in the trial court– was that classic indicators of inebriation that would be present in a normal DWI arrest were absent in this case. We note that many of these factors such as performance on field sobriety tests, were absent as a direct result of defendant’s conduct, i.e., his refusal to participate in any of these tests. While we regard these missing factors as a part of the totality of the circumstances, they are only a part, and where many of the missing factors are due to a defendant’s conduct, we believe that the officers could reasonably consider that conduct as part of the totality of the circumstances that provided probable cause to arrest.
Dawkins v. State, 822 S.W. 2d 668, 671 (Tex.App.—Waco, 1991, pet. ref’d).
In prosecution for felony driving while intoxicated, admission of video tape which showed defendant’s refusal to submit to sobriety tests requiring him to recite alphabet and to count aloud was not violation of defendant’s constitutional privilege against self-incrimination. Evidence that defendant refused to submit to sobriety tests did not constitute violation of defendant’s constitutional right to be free from self-incrimination where there was no indication that defendant was compelled to perform the sobriety tests.
Barraza v. State, 733 S.W. 2d 379 (Tex.App.—Corpus Christi, 1987, pet. granted) aff’d 790 S.W. 2d 654 (Tex.Crim.App.June 20, 1990).
A request to perform a field sobriety test is sufficiently similar to a request to perform a breathalyzer test so as to allow an analogy to the law governing the admissibility of evidence of a suspect’s refusal to take a breathalyzer test. Both types of tests are designed to test the sobriety of the suspect. We can discern no reason to distinguish between them with regard to the admissibility of refusal to perform the tests.
