DWI Law - Texas Holds HGN Cannot Be Used to Prove Blood Alcohol Content

In Jones v. State of Texas, Not Reported in S.W.3d, 2011 WL 5607832 (Tex.App.-Dallas), the defendant on appeal complained that the trial court erred when it allowed the police to correlate the results of an HGN test to a BAC of 'over 0.08'. Specifically, the appeals court wrote:

"The Texas Court of Criminal Appeals has determined “the technique employed in the HGN test to be a reliable indicator of intoxication ” but not “a sufficiently reliable indicator of precise BAC.” Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). Therefore, a witness qualified as an expert on the administration and technique of the HGN test may testify about a defendant's qualitative performance on the HGN test but may not correlate the defendant's performance on the HGN test to a quantitative result, specifically a precise BAC. Id. at 769; Lorenz v. State, 176 S.W.3d 492, 496–97 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). It is error to allow such testimony at trial. See Smith v. State, 65 S.W.3d 332, 345 (Tex.App.-Waco 2001, no pet.) (concluding officer's testimony that “a suspect who exhibits at least four clues would indicate a blood-alcohol content ‘over 0.08.’ “ was impermissible correlation of defendant's performance on HGN test to blood alcohol content); Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref'd) (State asking witness to correlate defendant's performance on HGN to conclusion that his BAC exceeded legal limit impermissible).

In this case, Trooper Odom testified at length about the sobriety tests he administered to appellant, including the HGN. When administering the HGN, Odom looks for lack of smooth pursuit, distinct and sustained nystagmus, and the onset of nystagmus prior to forty-five degrees. Odom gave appellant the HGN and assessed appellant two clues on each of these tests for a total of six clues. Odom continued:

ODOM: A decision point is what [the National Highway Traffic Safety Administration] who has designed these manuals, who has done these studies has designed or implemented a decision point. So there is a total of six clues on this HGN or eye test. There are six clues. A decision point is [when] you [meet] a certain number of clues, that implies a person is intoxicated.

STATE: There are statistics that go along that you talked about?

ODOM: Yes, if they meet that decision point which in this case is four. If they meet the four out of six requirement, yes, that implies that they are over the legal limit of .08.

DEFENSE: Your Honor, I am going to object to that. That is improper. In Texas it is not recognized as being equivalent to any number. It would be on BAC. That is case law.

COURT: I think that is cross examination. Overruled."

The appeals court found that the admission was error. The appeals court then had to decide whether the error was harmless. The court reviewed the remaining testimony, noting that this remark was only made once out of 173 pages of testimony (who said length doesn't count?). The appeals court also concentrated in particular on the defendant's expert Dr. Lance Platt, summarizing his testimony as follows:

"After the State rested, appellant called Dr. Lance Platt, an expert witness on sobriety testing, particularly the HGN test. Platt is a peace officer who is certified by the Texas Department of Transportation and the NHTSA to train people on standardized field sobriety testing. His doctoral dissertation was an evaluation of the HGN test at .08 BAC for Texas. According to Platt, there are three parts to an investigation for driving while intoxicated: vehicle in motion, personal contact, and sobriety testing. Officers consider all three parts and look at the totality of the circumstances when deciding to make an arrest for driving while intoxicated.

"Regarding the HGN test, Platt stated he had not seen any studies correlating or matching the results of the HGN to impairment for intoxication, so he could not say “you have X so therefore, your blood concentration is X.” However, Platt said the HGN is “a good test for consumption” to tell whether a central nervous system depressant is in a person's system. Platt also discussed the heel-to-toe walk and the one-legged stand tests overall. Platt reviewed the videotape of the traffic stop, appellant's performance on the sobriety tests, and his arrest. When asked about appellant's heel-to-toe walk and one-legged stand tests, he noted appellant's performance was “poor.”

"On cross-examination, Platt stated his dissertation examined the number of clues officers said they observed after administering three standardized field sobriety tests and compared those results with the breath or blood alcohol content results for each individual tested. Platt testified without objection that, in his research, 91 .6% of the people tested who scored four clues on the three standardized field sobriety tests had BAC levels of .08 or higher. Platt stated that, under his dissertation, Odom's “arrest decision would have been correct.” He had no reason to dispute that Odom saw all six HGN clues and again commented appellant did “poorly” on the walk and turn and one-legged stand tests. Nevertheless, he maintained appellant was not intoxicated that night because appellant did not appear intoxicated on the video when not performing the field sobriety tests."

The appeals court concluded that the error was harmless:

"Although Odom's testimony was improper and the trial court erred in overruling appellant's objection, we nevertheless conclude the error did not influence the jury. The effect of the single statement is slight when compared with Odom's remaining testimony which spanned 173 pages. The State did not elaborate or emphasize the comment and, in fact, did not elicit Odom's comment. The emphasis of Odom's testimony, both on direct and cross-examination, was the totality of the circumstances that evening. The jury heard Odom's testimony as well as that of the defense witnesses and observed the video of appellant's stop, the sobriety tests, and his interview at the police station. Appellant's own expert stated appellant performed “poorly” on the sobriety tests, he had no reason to dispute Odom saw all six clues when he administered the tests, and he believed Odom was in the position to determine whether appellant was intoxicated that night. After examining the entire record, we conclude the error had a slight effect, if any, on the outcome of appellant's trial."

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