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Question:
If a
client is charged with Felony DWI and
was not represented by counsel on one of
the prior DWI offenses, should the third
offense be reduced to a misdemeanor?
Answer:
If there
was no waiver of counsel, then a prior
conviction would not be useable and the
Felony should be reduced to a
misdemeanor. Merely not having a lawyer,
though, if there is a valid waiver of
counsel, does not affect the use of the
prior conviction.
Rule:
Never waive your right to a lawyer!
Methods of Attacking HGN
Standardization problems – Tests are
referred to as “Standardized Field
Sobriety Tests” for a reason. This means
that specific rules for administering,
scoring, and interpretation have been
specified and researched. If research
findings are used to support the
validity of the tests, since a test that
is modified is no longer the same test –
this makes standardization crucial. The
National Highway Transportation Safety
Administration (NHTSA) states, “If any
one of the standardized field sobriety
test elements is changed, the validity
is compromised. (National Highway
Traffic Safety ADM., U. S. Dept. Of
Transp., HS 178.R2/00, DWI Detection and
Standardized Field Sobriety Testing,
Student Manual (2000) at VIII-3
In
Emerson v. State, 880 S. W. 2d 759 (Tex.
Crim. App. 1994) the court held that if
not properly administered, the
Standardized Field Sobriety Tests are
not admissible. Also see McRae v. State,
152 S. W. 3d 738, 743-744 (Tex. App. –
Houston [1st Dist.] 2004) (HGN Test
Appellant contends that the trial court
erred by allowing the arresting officer
to testify that appellant had six clues,
the maximum number possible, on the HGN
test because, by the officer's own
admission, he administered the test to
appellant incorrectly. HN4HGN evidence
is reliable, admissible scientific
evidence under rule 702 when performed
by a police officer who is certified by
the National Highway Transportation
Safety Administration (NHTSA) n1 and who
applies the technique properly. Emerson
v. State, 880 S.W.2d 759, 768 (Tex. Crim.
App. 1994) (concluding that HGN evidence
met the criteria in Kelly, 824 S.W.2d at
572). The HGN technique is applied
properly when the officer follows the
standardized procedures outlined in the
DWI Detection Manual published by NHTSA.
See id. In determining whether a
person's performance of the HGN test
suggests intoxication, an officer must
look for the following clues in each
eye:
(1)
the lack of smooth pursuit,
(2) distinct nystagmus at maximum
deviation, and
(3) the onset of nystagmus prior to 45
degrees.
Compton v. State, 120 S.W.3d 375, 377
[**6] (Tex. App.--Texarkana 2003, pet.
ref'd) (citing NAT'L HIGHWAY TRAFFIC
SAFETY ADMIN., U.S. DEP'T OF TRANSP.,
DWI DETECTION AND STANDARDIZED FIELD
SOBRIETY TESTING STUDENT MANUAL at
VIII-6). Slight variations in the
administration of the HGN test do not
render the evidence inadmissible or
unreliable, but may affect the weight to
give the testimony. Compton, 120 S.W.3d
at 378.
The
undisputed testimony establishes that
the arresting officer did not administer
the HGN technique properly to appellant.
Although the officer testified that he
administered all three parts of the HGN
test to appellant, he admitted at
appellant's Administrative License
Revocation (ALR) hearing that he
testified that he had administered only
two out of the three required parts of
the HGN because he [**7] did not conduct
the onset-of-nystagmus portion of the
test. The officer also admitted making
several other misstatements concerning
the HGN test. When confronted [*744]
with the procedural errors made in
administering the HGN test that did not
comply with the NHTSA guidelines, the
officer was asked whether there was a
"valid HGN test" on appellant. The
officer replied that there was none.
Under these circumstances, which show
that the officer acknowledged that the
HGN test administered to appellant was
invalid, we cannot conclude that the HGN
technique was applied properly, as
required by Emerson. See 880 S.W.2d at
768. Likewise we cannot conclude that
the error was merely a slight variation
in the administration of the HGN test.
See Compton, 120 S.W.3d at 378. We
therefore conclude that the trial court
abused its discretion by allowing the
officer to testify that appellant had
six clues on the HGN test because the
technique applying the HGN was
improperly administered and resulted in
an invalid test. See id.)
In Compton, see above, there were
“slight variations” in the timing which
the court concluded were not
significant. (no scientific testimony
regarding the validity of this type of
assessment by the court) The problem
with Compton is that the court ignores
how important it is for the officer to
hold the eye at maximum deviation for at
least four seconds to ensure that the
jerking is sustained. Otherwise the
movement can possibly be attributed to
eye strain. As stated in its
publication, Horizontal Gaze Nystagmus:
The Science & The Law, the National
Highway Transportation Safety
Administration states “Law Enforcement
officers will not confuse HGN with any
other type of nystagmus if the HGN test
is conducted correctly.”
www.nhtsa.dot.gov/people/injury/enforce/
nystagmus/hgntxt.html (this is
a very good article to read so that you
can be ready for what the prosecution is
being taught to do in the courtroom)
In Plouff v. State, 192 S. W. 3d 213
(Tex. App. – Houston [14th Dist.] 2006),
The appellate court demonstrated the
great lengths it would go to affirm the
use of the field sobriety tests. This
case was tried by Troy McKinney and Troy
Walden was the defense expert. Walden
testified that the tests were not
administered properly based upon his
viewing of the video tape. Cop said he
did them the correct way. Appellate
court stated that the court (this was
litigated
on a Motion to Suppress) apparently
believed Officer and then went on to say
any error was harmless. Continued
reference made to fact that “slight
variations” not important.
To develop a good record there must be
testimony as to why a slight variation
is not acceptable.
In McClain v. State, No. 05-03-01785-CR,
2005 Tex. App. Lexis 760, an unpublished
opinion, the Dallas court of appeals was
asked to determine whether the trial
court abused its discretion in allowing
a police officer to testify regarding
field sobriety tests as a lay person and
not as an expert. The defense offered
James Booker, a toxicologist, to explain
why FSTs are unreliable “in
many situations” and that certified
field sobriety officers undergo “very
specific” training in order to learn the
“the nuances” of administering FSTs and
the “clues” that are sought. For
example, a “lay person” might construe
not actually touching toe to heel during
the “walk and turn” as a “clue” when a
certified officer would know to allow a
“grace” of a half inch. Booker testified
that because of the “very specific”
training received, a certified officer
is more credible than a “lay person”.
Court let cop testify as a lay person.
Cop
testified that defendant had so many
“clues” and indicated whether he thought
the defendant “passed” or “failed”.
Argument by defendant was that allowing
him to testify like this turned him into
“expert” and gave his credibility a
boost. Court responded that error, if
present was harmless.
What is necessary now is for the defense
bar to prepare a case, with a very
detailed developed record, to challenge
the ability of the trial courts to take
judicial notice of the reliability of
HGN testing as well as its application
in the specific case on trial. This
takes time, money and experts.
To successfully challenge FSTs,
particularly HGN, you must present
expert testimony that the use of FSTs to
determine “intoxication” is not
scientifically validated. At most, the
tests are circumstantial evidence that
one may have used alcohol or may be
intoxicated. They are not evidence of
intoxication! In 1994 the Court of
Criminal Appeals took judicial notice of
the reliability of HGN testing. They
used predominately, information provided
by the NHSTA and NITA, organizations
that are hardly objective. In 2002,
after an extensive pretrial hearing
wherein experts were called to support
the defendant’s contention that the FSTs
are not reliable indicators of
intoxication, the court, Justice Grimm
of the United States District Court for
the District of Maryland, held the
following:
1.
The results of properly conducted SFSTs
may be considered for probable cause at
trial;
2.
The results of SFSTs cannot be used to
prove a specific alcohol concentration;
3.
There is a well-recognized causal
connection between the ingestion of
alcohol and exaggerated HGN;
4. A
police officer trained and qualified to
perform SFSTs may testify to his
observations, if properly administered,
but may not use value-added descriptions
to characterize the subjects
performance, such as saying the subject
“failed the test” or “exhibited” a
certain number of ‘standardized clues”
during the test;
5. If
the government introduces evidence of
nystagmus, the defendant may bring out
either during cross-examination or by
asking the court to take judicial notice
of the fact that there are many causes
of nystagmus other than alcohol
ingestion; and
6. If
otherwise admissible, the police officer
may give lay opinion testimony that the
Defendant was Driving Under the
Influence, but he may not bolster the
testimony by reference to any
scientific, technical or specialized
information learned from law enforcement
or traffic safety instruction. United
States v. Horn, 185 F. Supp. 2d 530 (D.
Md. 2002)
The
court looked at all available
information regarding SFSTs, including
studies that were not available when the
Emerson court took judicial notice in
Texas. The pretrial hearing should
include a challenge to the “judicial
notice” aspect as well as to the proper
performance of the tests. I would
suggest counsel get a copy of the
studies performed that challenged the
reliability of the SFSTs along with
critiques of the methodology of the
reliability tests and attach to a motion
to suppress so that a trial court can
read them ahead of time and maybe take
judicial notice of the studies.
I
would also suggest calling an expert on
how things are “validated”. Maybe a
statistician to testify that validation
studies don’t work unless the tests are
performed exactly as prescribed every
time. If not, then the validation
studies are not applicable.
Additional References
http://forensic-evidence.com/site/Biol_Evid/HGN.html
HGN by Laine Means
http://www.california
drunkdriving.org/horizontal_gaze.html
An excellent resource for someone who is
going to cross-examine on HGN (Actually
a list of questions asked in a drunk
driving case.)
Mimi Coffey’s Article in Voice for the
Defense, November 2004, pp16-20
DWI-Modern Day Salem Witch Hunts
http://www.dcba.org/brief/marissue/2002/art40302.htm
Very well reasoned brief regarding field
sobriety tests and admissibility – great
analysis of U.S. v. Horn, 185 F. Supp.
2d 530 ( great case for the Defense and
there is some reasoning there we need to
continually reurge)
Columns:DWI: Part One: Essential Cases
To Know In Handling Challenges To
Scientific Evidence by Leonard Stamm 27
Champion 48 August 2003
Columns:DWI: (Part 2) The Psyhometrics
and Science of the Standardized Field
Sobriety Tests by Steven Rubenzer 27
Champion 40 June 2003
http://www.hawaii.gov/jud/ica21259.htm
Exhaustive review of case law in all 50
states regarding HGN
http://www.michbar.org/journal/article.cfm?articleID=882&volumeID=67
Do “Standardized” Field Sobriety Tests
Reliably Predict Intoxication?:
Knowledge for drunk driving litigation
by Patrick T. Barone and Jeffery S.
Crampton for the Michigan Bar magazine |
