The Kansas Supreme Court recently issued a decision dismissing one of the most controversial pieces of evidence used in an OUI trial – the horizontal gaze nystagmus test (HGN). Finding no evidence to support the reliability of HGN test results, the high court forbade trial judges from admitting HGN test results for ANY purpose at all, until expert scientific evidence is presented to establish the test’s reliability in measuring intoxication levels.
The Kansas court issued this important ruling in the recent case of City of Wichita v. Molitor. In Molitor, the defendant was pulled over for failing to signal a right turn at a stop sign. Though the defendant correctly stopped at the sign, and properly completed the turn, he did so without signaling. And though the defendant passed two of three sobriety tests, the officer still required him to take a breath test, which registered a BAC level of .09 percent. The defendant was then arrested for an OUI.
After the officer stopped the defendant, the officer approached the vehicle and detected an odor of alcohol. The officer also noticed that the defendant had watery and bloodshot eyes, and so asked the defendant if he had consumed alcohol earlier that evening. The defendant replied that he had a couple beers, and the officer ordered him to exit the vehicle for field sobriety testing.
The HGN Test
The first test conducted by the officer was the HGN test, which examines the driver’s ability to direct his gaze at an object that the officer holds up about a foot away from the defendant’s eyes. As the officer moves the object across the driver’s visual spectrum, the officer watches the driver’s eyes closely for any particular clues of intoxication – such as jerking of the eyeballs. According to the theory used by state scientists, a person who is intoxicated will have difficulty in maintaining his gaze without jerking away from the sides of the visual spectrum. Once the officer identifies a certain number of cues, he determines that the driver failed the test, and continues to conduct other tests to confirm these results.
In the case of Molitor, the officer testified that the defendant failed the HGN test, and so conducted two additional tests – the walk-and-turn test and the one-legged stand test. Unlike with the HGN test, however, the defendant passed both of these latter tests. Despite passing the two tests, the officer administered a preliminary breath test, which showed that the defendant was above the legal limit.
The Defendant’s Arguments – No Reasonable Suspicion
Under Kansas state law, an officer can request a breathalyzer test only if he has a reasonable belief based on specific observations (“reasonable suspicion”) that the driver is intoxicated. The defendant in this case asked the trial judge to exclude the breathalyzer test results from coming into evidence because the officer did not have a reasonable basis for ordering the breath test. Because the defendant passed the two subsequent field sobriety tests, it was clear that he was not intoxicated. Therefore, no reasonable suspicion existed to request the breath test. But both the trial court and appeals court rejected with this argument, ruling that the results of a HGN test alone provided reasonable suspicion to justify the breath test request. The Kansas Supreme Court, however, strongly disagreed with both lower courts, and reversed their decisions in favor of the defendant.
The HGN Test is Not Reliable for ANY Purpose
The Kansas Supreme Court was not persuaded by the results of the HGN, finding the test itself to be completely unreliable. The Court examined past case law and scientific research, and ultimately found no reliable evidence to support the scientific theories underlying the HGN test as used by police. Under the legal standard known as the “Frye test”, no expert scientific evidence has been submitted to prove as a matter of law that the HGN test is generally accepted in the scientific community as a reliable measure of a person’s intoxication. And until enough scientific evidence is presented to establish the test’s reliability, the Kansas Supreme Court held that the test can not be given any more credit than a Magic 8 ball or a compared the HGN test to a Magic 8 ball or Ouija Board.
One of the most important reasons for the Court’s finding in this case is the fact that a person’s irregular eye movements (which the HGN test is designed to test) can be caused by many other factors that are completely unrelated to intoxication. For example, a person who has the flue, or drank coffee, or even ingested aspirin could exhibit similar eye behavior. And without any real substantive scientific evidence to support the HGN test’s theory, there is simply no reason to conclude that a person is intoxicated merely because he failed an HGN test.
This decision falls closely in line with many other state court decisions, such as in Massachusetts. Though Massachusetts courts do not use the Frye standard to measure the reliability of scientific evidence, the Supreme Judicial Court in Comonwealth. v. Sands ruled that the HGN test is based purely on scientific evidence, which can only come into court through an expert’s testimony. And because most district attorneys do not call experts to testify in OUI trials, the HGN test results rarely ever come into trial. This case is a great indicator that more and more courts are beginning to realize that many of the common tests used by officers – including breath tests – are simply too unreliable to support an OUI conviction.