Sunday, March 06, 2011

DUI Appeal of the Day (DAD) - NHTSA Manual Barred

In State of Tennessee v. Blair, Slip Copy, 2011 WL 743396 (Tenn.Crim.App.) the Defendant contended that the trial court improperly limited his cross-examination of the arresting officer by preventing use of the National Highway Traffic Safety Administration (“NHTSA”) manual. The Defendant sought to introduce portions of the NHTSA manual, which educates officers on field sobriety tests and clues that a defendant may be intoxicated, for purposes of cross-examination of the arresting officer concerning the officer's compliance with the manual.

The officer gave the defendant five tests. At a pre-trial hearing, the cop stated that the first test was the Horizontal Gaze Nystagmus (“HGN”) test, which the State conceded was not admissible. The second test was an “alphabet” test where the officer asked the Defendant to recite part of the alphabet, specifically letters “H” through “U”. This, the officer conceded, was not a standardized field sobriety test. The third field sobriety test entailed asking the Defendant to count down from 63 to 47, which is also not a standardized field sobriety test. The fourth and fifth tests were both standardized field sobriety tests, the one-legged stand test and the walk and turn test. The officer testified that when he said “standardized” he meant that they were identified by NHTSA as the highly reliable and valid tests for detecting impairment due to an elevated blood alcohol level. According to the NHTSA manual, the one-legged stand test has a 65% rate of reliability and the walk and turn test has a 68% rate of reliability in indicating impairment.

The trial court barred use of the manual, stating:

[T]he field sobriety tests are not scientifically accurate, ... [and] this officer has not been qualified as an expert. And in as much as he has ... not been qualified as an expert, no such cross-examination can be made by the use of a learned [treatise]. And these manuals haven't been established as such anyway.

At trial, the officer described in great detail the defendant's performance on each test. Based upon the Defendant's driving, his statements, and his performance during the field sobriety tests, the officer concluded that the Defendant's blood-alcohol level was above the legal limit and that the Defendant should not be operating a motor vehicle.

On appeal, the Court sustained the barring of use of the NHTSA manual. Discussing the learned treatise doctrine, the court stated:

Rule 618 of the Tennessee Rules of Evidence allows a party to impeach an expert witness with a learned treatise.FN2 This rule allows a party to impeach the expert witness using a learned treatise to test the expert's knowledge and understanding of a topic at issue. Neil P. Cohen et al., Tennessee Law of Evidence, § 6.18[2][a] (5th ed.2005). When the requirements of Rule 618 are satisfied, the most common approach for using this impeachment technique is for counsel to read a portion of a treatise, ask the expert witness whether he or she agrees with the treatise, and compare the treatise with the expert's response. Id. at § 6.18[2][b]. A learned treatise may not be used to impeach a lay witness, since Rule 618 extends only to impeachment of expert witnesses. Id. at § 6.18[2][a].It too found that the tests themselves weren't scientific, and that the officer was not an 'expert'.
The appeals court agreed that the tests were not 'scientific', that the cop was not an expert, and therefore ruled that the learned treatise exception was inapplicable. "Defense counsel may only use a manual to formulate questions for cross-examination; counsel may not use it to impeach the officer. To subject a “lay” witness, whose testimony by definition is based only upon facts observed, not about opinions or inferences, to cross-examination based upon a “learned treatise” in the same fashion an expert is subjected to cross-examination would be improper."

EDITORS NOTE: The problem with the opinion originates with the failure of the court to deal with the fact that the officer was erroneously (since he is not an expert according to the court) allowed to 'opine' that the tests can be used to measure an alcohol limit (the cop used them for that purpose), and that the cop was allowed to render an opinion on the defendant's BAC (i.e. above the limit). If the cop is not an expert, frankly no mention of the training, testing, clues, sources of the tests or opinions should ever have been offered. Once these items were introduced, counsel should have been allowed to prove to the jury what the appellate court themselves admitted - the cop is no expert and the tests are not scientific. The next motion in limine should bar all of the officers statements about his training, the source of the tests, evidence regarding standardized clues and his opinions about BAC levels too.

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