Wednesday, October 24, 2018
Page 1
Court of Appeal:
Officer in DUI Case May Testify on Meaning of Performance in Test for Eye Condition
Fifth District Repudiates Earlier Decision
By a MetNews Staff Writer
|
|
|
Test for horizontal gaze nystagmus, an eye condition that can be caused by intoxication, is demonstrated. The Fifth District Court of Appeal held yesterday that an officer who is properly trained may now testify as to the significance of a DUI suspect’s performance when the test is administered in the field. |
The Fifth District Court of Appeal yesterday held that a properly-trained police officer who conducted a test for nystagmus, an eye condition, as part of a DUI traffic stop can testify to the test’s connection to the defendant’s intoxication, because the test is now widely accepted by the scientific community.
The nystagmus test is performed by having a suspect track with his or her gaze an object moved back and forth along the horizontal plane. Horizontal gaze nystagmus (“HGN”)—a jerking motion of the eyes while following such movement—can be caused by alcohol intoxication; it can also be a result of several other causes, however.
Fresno Superior Court Judge W. Kent Hamlin rejected a prosecutor’s attempt to qualify two California Highway Patrol officers as experts on nystagmus. Having found them to be lay witnesses, Hamlin dismissed the DUI case against Eddie Randolph, holding that without expert testimony connecting the results of the nystagmus test to Randolph’s alleged intoxication, the prosecution’s case could not be proven beyond a reasonable doubt.
Acting Presiding Justice Herbert I. Levy wrote the opinion reversing Hamlin’s order dismissing the case.
Hamlin’s Cited Case
Hamlin relied on a 1992 opinion from the Fifth District in People v. Williams. In that case, the court held that the nystagmus field test’s results could be testified to by an officer, but that the meaning of those results must be supported by an expert’s opinion.
The Fresno Superior Court Appellate Division on Dec. 27, 2016, affirmed Hamlin in a 2-1 decision. The majority declined to address Hamlin’s application of Williams, but held that without an expert witness, the officer’s testimony could not be connected to Randolph’s level of intoxication.
The dissenting judge disagreed, citing the state Supreme Court’s 1994 opinion in People v. Leahy and the Fourth District Court of Appeal’s opinion a year later in People v. Joehnk.
Leahy Opinion
In Leahy, Chief Justice Malcolm M. Lucas, now deceased, wrote:
“Once it has been shown that HGN testing is generally accepted in the scientific community, no reason exists why police officers should be deemed unqualified to administer and report the results of those tests. Thus, in future cases, once the Kelly standard has been met, as reflected by a published appellate precedent, the prosecution will not be required to submit expert testimony to confirm a police officer’s evaluation of an HGN test.”
(People v. Kelly is a 1976 high court opinion which held that a prosecutor must present expert testimony regarding a test’s import until such time as the scientific community has accepted the test.)
Lucas explained that, at that time, “HGN testing is a new scientific technique requiring compliance with Kelly.”
Joehnk’s Holding
In Joehnk, Acting Presiding Justice Patricia Benke of Div. One said:
“Having reviewed the record in this case and case authority from this and other jurisdictions, we conclude that a consensus drawn from a typical cross-section of the relevant, qualified scientific community accepts the HGN testing procedures used in this case as a useful tool when combined with other tests and observations in reaching an opinion whether a defendant was intoxicated.”
Levy wrote:
“In this matter, when read together, Leahy and Joehnk establish that an officer, with adequate training and experience in performing the nystagmus test, as in this case, without additional expert testimony, may now testify as to the significance of a defendant’s performance on an HGN test….Although there is no claim that HGN testing alone can determine whether a suspect is under the influence of alcohol (nor determine a blood-alcohol level), this testing is part of an officer’s total observations of a suspect. This is one basis for an officer’s opinion concerning intoxication.”
Williams Disapproved
The jurist continued:
“Following Leahy and Joehnk, the holding from Williams that additional expert testimony is required to explain HGN test results no longer comports with current scientific acceptance of HGN testing….It is Joehnk, and not Williams, that represents current law regarding an officer’s testimony pertaining to HGN testing.”
He went on:
“Because this holding is at odds with Leahy and Joehnk, we now disapprove of the following language in Williams: an officer’s ‘testimony concerning how he gave the HGN test to [the defendant] and what he observed during the test may be admissible if it is linked to testimony of a qualified expert who can give a meaningful explanation of the test results to the jury. Without some connection to qualified expert testimony, however, [the officer’s] description of the test and his observations of nystagmus are irrelevant.’ ”
The case is People v. Randolph, 2018 S.O.S. 5133.
Copyright 2018, Metropolitan News Company