First, the defendant contended that Officer Patten was not qualified to administer the HGN or testify to its results because Officer Patten had not been re-certified, under the Texas Administrative Code, to perform field sobriety tests when appellant was stopped. See 37 TEX. ADMIN. CODE § 221.9 (2009) (Tex. Comm'n on Law Enforcement Officer Standards & Educ, Standardized Field Sobriety Testing Practitioner (“SFST”)). The Texas Administrative Code specifies that for an officer to qualify for an SFST certificate, the officer must complete the SFST course offered by the National Highway Traffic Safety Administration's (“NHTSA”) as well as an update course within the past twenty-four months. Id. The court of appeals responded as follows:
"Although appellant is correct in stating that certification is proof an officer is qualified to administer the HGN test and to testify, see id. at 769, a certificate is not the only means by which an officer may be qualified. Ellis v. State, 86 S.W.3d 759, 761 (Tex.App.-Waco 2002, pet. ref'd). If it is shown that the officer has extensive training in administering the HGN test, has been certified through a training course specifically including the administration of the HGN test, and has extensive experience in administering the HGN test, the trial court does not abuse its discretion in allowing the officer to testify as an expert on the administration and technique of the test."The court then found that the officer was still qualified as an expert even though his SFST certificate had expired.
As for the defendant's argument that the HGN test should be suppressed because the results were “medically impossible,” the court acknowledged that it was required to examine the record to determine if the HGN technique was properly applied on the occasion in question. "While administering the HGN test, the officer must follow the procedures outlined in the DWI detection manual published by the NHTSA." It then summarized the officers testimony as follows:
"Officer Patten explained the NHSTA requires the subject to stand with their feet together and arms to their side. While standing, the subject must track the blue stimulus without moving their head. An officer must pass each eye twice while looking for lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and nystagmus onset prior to forty-five degrees. Each pass with the eye should be two seconds out and then two seconds in and when the stimulus is at forty-five degrees, the stimulus must be held for a minimum of four seconds. While reviewing the videotape of the stop, Officer Patten stated one of the passes looked “kind of short” and that it was maybe three seconds. Officer Patten then stated there are three clues for each eye for a total of six clues. Appellant exhibited three clues in the right eye and one clue in the left eye. Officer Patten reasoned that because appellant had difficulty following the stimulus, he did not mark that appellant exhibited the other two clues."In rejecting the defendant's argument that the results should have been suppressed, the court stated that:
Many courts have held that slight variations in administration do not affect the reliability or admissibility of the HGN test, but only affect the weight to be given to the testimony. See Plouff v.. State, 192 S.W.3d 213, 221 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (“[I]t would be unreasonable to conclude that any variation in administering the tests, no matter how slight, could automatically undermine the admissibility of an individual's performance of the tests.”); Compton v. State, 120 S.W.3d 375, 379 (Tex.App.-Texarkana 2003, pet. ref'd) (“Any variation in the time taken to appropriately position the eyes would have no effect on the reliability of [the HGN] test and cannot form the basis for excluding the results from the evidence presented at trial.”). Here, Officer Patten may have only held the stimulus for three seconds instead of four, but it was within the trial court's discretion to find that any deviation committed by Officer Patten during administration of the HGN test was slight and did not affect the reliability and admissibility of the results.Hence, the results of the HGN test were found to be admissible.
NOTE: What is troubling about the opinion in this case is that there is an acknowledgement that the procedures of the HGN test were not followed, and also that the results of 3 clues in one eye and 1 clues in the other is an 'abnormal' finding. Yet, without any medical evidence to support the reliability (and admissibility) of the result, the court brushes off these deviations as somehow slight and de minimus - a finding by them that is unsupported by the record. Just shoot me!
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