DUI Appeal - Sobriety Tests Inadmissible in Per Se Case Says Ohio Court

The below case was provided to DAD thanks to the watchful eyes (and summary) of NCDD member Jeff Meadows. He has provided the summary below:

State v. Henricksson
4/4/2011
2011-Ohio-1632
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: HGN, video, admissibility, 4511.19(A)(1)(h)

Case Summary Overview:
D was stopped for weaving within her lane and changing lanes without signaling. Ultimately she was arrested for OVI and charged with A1a and A1h. Her MTS was denied and the case was tried to the court - whereupon the prosecutor dismissed the A1a and went forward with ONLY the A1h charge.

During trial, the Defense tried to offer evidence of the HGN and cruiser-cam video, but the State objected and the court sustained the objection. Defendant was convicted and sentenced to the high tier penalties. This appeal followed raising many issues but of particular importance is the issue of admissibility of the HGN and video on a PER SE trial.

HELD: The 12th District affirmed holding: "..the state was only required to prove two elements; namely, that appellant was operating a vehicle within the state, and that, at the time of the offense, she had a concentration of .17 of one gram or more by weight of alcohol per 210 liters of her breath." "See State v. Jobe (July 13, 1998), Clermont App. No. CA97-10-083, at 4-5; State v.
Knapke, Franklin App. No. 08AP-933, 2009-Ohio-2989, ¶8. As a result, because these two facts are the only facts of consequence in this case, the HGN test results, as well as the
video taken from Trooper Bierer''s in-dash camera, are not relevant in prosecuting a violation of R.C. 4811.19(A)(1)(h), and therefore, not admissible.1 See State v. Boyd (1985), 18 Ohio St.3d 30, 31; see, also, State v. Obhof, Franklin App. No. 07AP-324, 2007-Ohio-5661, ¶16; Evid.R. 402."

They also include an interesting footnote that states: "It should be noted, however, that appellant could have challenged the accuracy of her specific breathalyzer test result by introducing evidence showing "something went wrong with [the] test and consequently, the result
was at variance with what the approved testing procedure should have produced." Columbus v. Aleshire, 187
Ohio App.3d 660, 2010-Ohio-2773, ¶24, 27; see, also, State v. Tanner (1984), 15 Ohio St.3d 1, 6 ("[a] defendant
may still challenge the accuracy of his specific test results, although he may not challenge the general accuracy
of the legislatively determined test procedure as a valid scientific means of determining blood alcohol levels")."

This commentator finds it interesting that the footnote references the "legislatively determined test procedures" since there are NO LEGISLATIVELY DETERMINED TEST PROCEDURES!!!

This commentator also believes this case can be used to open, or at least unlock the VEGA door since the OSC in VEGA stated: "...Rebuttable evidence may include non-technical evidence of sobriety, such as a videotape..." "...and the completion of field sobriety tests." 12 Ohio St.3d 185, 189.


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DUI Appeal - Massachusetts Use of Medical Records to Beat Sobriety Tests

Commonwealth v. Gawlik, Jr. 2011 WL 1450346 In this short decision, the defendant argued that his attorney was constitutionally ineffective for failing to introduce available medical records to establish is inability to pass the field sobriety tests. The appeals court noted that in Massachusetts, a defendant may use medical records to supply a basis for failing to complete (or pass) field sobriety testing (see Commonwealth v. Schutte, 52 Mass.App.Ct. 796, 800 (2001)). Although counsel did not use the actual medical records, he did elicit uncontested evidence on cross examination about the defendant's ailments. Holding that the attorney's decision NOT to use the records could have been a tactical decision (i.e. the records might have revealed prejudicial information such as drug abuse or alcoholism) the appeals court affirmed the conviction.

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DWI Appeal - Texas HGN test medically impossible

In Patton v. State of Texas, Not Reported in S.W.3d, 2011 WL 541481 (Tex.App.-San Antonio), the defendant alleged that the trial court erred in denying his motion to suppress because (1) the officer administering the horizontal gaze nystagmus test (“HGN test”) was not qualified to do so under the Texas Administrative Code, and (2) the HGN test was improperly administered by the officer because the results were “medically impossible.”

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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DUI Appeal of the Day (DAD) - Failure to prove Impairment Despite .09 and Death

This case comes to DAD from expert and Mass attorney Tom Workman. In Commonwealth v. Filoma (2011) a Massachusetts jury convicted the defendant of, inter alia, operating under the influence and causing serious bodily injury. The facts established that the defendant consumed 4-6 beers at a Super Bowl party, and then (when the Patriots won) he attempted to drive to an ex-girlfriends house. The massive fans on the street made travailing the streets difficult. He drove backwards on a one-way street at about 20-35 mph until police attempted to stop him. He then drove forward at speeds up to 60mph while students/fans jumped out of the way. He eventually struck 5 pedestrians, killing one and seriously injuring 2 others. At the station, he passed the only filed sobriety test. Many hours post-arrest, he blew .09 Brac twice. The State chose to omit any instructions regarding a presumption of guilt at or above 0.08 (perhaps because of the time delay).

The State expert provided the opinion that the defendant's readings of .09 at 4:27 A.M. and 4:30 A.M. enabled projections of higher amounts of .10 percent to .14 percent as of 2:15 A.M. and inferably higher amounts two and one-half hours earlier, at the time of the events on Symphony Road. However, the expert never explained the fundamental connection between the amounts of blood alcohol content and the punishable condition of impairment: the diminished capacity to operate a motor vehicle safely. The appeals court went on to state:

"The omission of that explanatory connection, in the words of the Colturi decision, left the jury "to guess at [the] meaning" of the breathalyzer measurements. (citation) Consequently, in the absence of the per se theory instruction and of an impairment theory expert opinion, proof of the elements of operating under the influence was deficient."

The appeals court therefore reversed the conviction for OUI outright.


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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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