NOTE. Horizontal Gaze Nystagmus: Limiting the Admissibility of an Unreliable Test

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1 NOTE Horizontal Gaze Nystagmus: Limiting the Admissibility of an Unreliable Test INTRODUCTION On its surface, horizontal gaze nystagmus (HGN) seems to be a flawless field sobriety test, providing unquestionable evidence of alcohol consumption. However, after careful scrutiny of the test s scientific and legal realms, its imperfections begin to show, and the once faultless test begins to crumble under the weight of its deficiencies. With the help of the Southern California Research Institute, the National Highway Traffic Safety Administration (NHTSA) created the standardized field sobriety test (SFST) battery to assist police officers in determining driving impairment. 1 Of the three roadside tests that make up the battery, HGN is the only test based on scientific principles. 2 The NHTSA manual claims the [HGN] test is a reliable roadside measure of a person s impairment due to alcohol. 3 However, there are a significant number of natural, medical, and environmental factors, aside from alcohol, that may cause nystagmus. 4 Therefore, the HGN test is not as simple and reliable as the NHTSA asserts. Michigan has never independently evaluated the reliability of the HGN test. The Michigan Court of Appeals, in People v. Berger, simply adopted the decision of another jurisdiction without conducting its own investigation. 5 The appellate court acknowledged that the HGN test was scientific evidence, employed Frye s general acceptance standard, and determined that the reliability of the test was proved. 6 Additionally, the scientific results were admitted into evidence to prove that the presence of alcohol and the testimony of an expert witness was not required. 7 Unfortunately, the Berger court is in error because both Daubert v. Merrell 1. See Nat l Highway Traffic Safety Admin., Horizontal Gaze Nystagmus: The Science & the Law, U.S. DEP T OF TRANSP., (last visited Jan. 25, 2013) [hereinafter The Science & The Law]. The electronic version of this source does not provide pagination, but it is used in this Note for ease of access. 2. Schultz v. State, 664 A.2d 60, (Md. Ct. Spec. App. 1995). 3. The Science & the Law, supra note See Schultz, 664 A.2d at People v. Berger, 551 N.W.2d 421, 423 (Mich. Ct. App. 1996). 6. Id. 7. Id. at 424.

2 32 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 Dow Pharm., Inc. and Federal Rule of Evidence (FRE) 702 supersede the Frye test. 8 Not only has Michigan relied on an outdated rule, but it has also relinquished the requirement of expert testimony, 9 and has failed to evaluate the reliability of the test on its own merits. This is of great concern because there are many influences affecting the reliability of test results. Common medical and environmental conditions cause nystagmus, creating the impression that the individual has consumed alcohol. In addition, the testifying officers are not scientific or medical experts, and merely offer personal observations and an unverified belief that the test was administered properly. As a result of the excessive influences concerning the HGN test, it would be in Michigan s best interest to evaluate the issue independently, utilizing Daubert and FRE 702. Ultimately, Michigan should limit the admissibility of HGN test results, refuse to take judicial notice of the test s reliability, and mandate that expert testimony be used before admitting HGN evidence. I. SCIENTIFIC BACKGROUND OF HORIZONTAL GAZE NYSTAGMUS In the mid 1970s, the National Highway Traffic Safety Administration (NHTSA) sponsored the Southern California Research Institute to research which field sobriety tests (FST) offered the best methods in detecting impaired drivers. 10 The investigation resulted in a recommended battery of tests, called the Standardized Field Sobriety Tests (SFST). 11 Included in the FST series were the Horizontal Gaze Nystagmus (HGN) test, the Walkand-Turn (WAT) test, and the One-Leg-Stand (OLS) test. 12 Of the three field sobriety tests, the WAT and OLS are the most commonly known. The WAT test is based on how well an individual can walk a straight line. After hearing instructions, the subject is required to take nine heel-to-toe steps, keeping eyes on feet and counting each step 8. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). 9. Berger, 551 N.W.2d at Patrick T. Barone and Jeffery S. Crampton, Do Standardized Field Sobriety Tests Reliably Predict Intoxication?, MICH. B.J., July 2005, at 23, available at (citing Marcelline Burns & Herbert Moskowitz, PSYCHOPHYSICAL TESTS FOR DWI ARREST, U.S. DEP T OF TRANSP., (last visited Jan. 25, 2013). See Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 AM. JUR. PROOF OF FACTS 3d 439, at 1 (1989) (citing V. THARP ET AL., DEVELOPMENT AND FIELD TEST OF PSYCHOPHYSICAL TESTS FOR DWI ARREST, U.S. DEP T OF TRANSP., (last visited Jan. 25, 2013); JL Booker, The Horizontal Gaze Nystagmus Test: Fraudulent Science in the American Courts, 44 SCI. & JUSTICE 133, 134 (2004). 11. The Science & the Law, supra note Rouleau, supra note 10, at 1; The Science & the Law, supra note 1.

3 Winter 2013] LIMITING THE HGN TEST 33 out loud, then [turning]... and [taking] nine heel-to-toe steps back. 13 While the individual walks, the police officer looks for eight standardized clues. 14 If two of the eight clues are observed, the subject will be considered to have failed the test. 15 Respectively, the OLS test focuses on an individual s ability to balance on one foot. In this test, the individual is required to raise one leg approximately six inches off the ground, keeping it straight with toes pointed, and count out loud for thirty seconds. 16 During this time, the officer is looking to see if the individual uses his arms for balance, sways, puts his foot down, or hops. 17 Similar to the WAT test, if two of the four clues are observed, then the individual has failed. 18 Thus, it is evident that the methods and principles of both tests are predicated on common knowledge, which makes the results more self-explanatory and easier to understand. The HGN test is different from WAT and OLS because it rests almost entirely upon an assertion of scientific legitimacy rather than a basis of common knowledge. 19 HGN is the most technical, 20 and is based solely on the movement of the eyes and precise observations of nystagmus. 21 Nystagmus is an involuntary jerking or bouncing of the eyeball that occurs when there is a disturbance of the vestibular (inner ear) system or the oculomotor control of the eye. 22 The horizontal gaze nystagmus occurs when the eye... begins to lag and has to correct itself with a saccadic movement toward the direction in which the eye is moving or gazing. 23 These lag and correction cycles are due to disruptions in the central nervous system, which may be the result of the consumption of alcohol. 24 Therefore, the HGN test involves scientific phenomena predicated on a scientific or medical principle that the automatic tracking mechanisms of the eye are affected by alcohol. 25 The theory is that if an individual s eyes exhibit nystagmus during lateral pursuit, then the individual has consumed alcohol. 13. Barone & Crampton, supra note 10, at Id. 15. Id. 16. Id. 17. Id. 18. Id. 19. Schultz v. State, 664 A.2d 60, 66 (Md. Ct. Spec. App. 1995) (quoting State v. Superior Court, 718 P.2d 171, 178 (Ariz. 1986)). 20. United States v. Horn, 185 F. Supp. 2d 530, 537 (D. Md. 2002). 21. Id.; The Science & the Law, supra note The Science & the Law, supra note Id. 24. Id. 25. State v. Torres, 976 P.2d 20, 30 (N.M. 1999) (quoting State v. Meador, 674 So. 2d 826, 834 (Fla. Dist. Ct. App. 1996); Stephanie E. Busloff, Comment, Can Your Eyes Be Used Against You? The Use of The Horizontal Gaze Nystagmus Test in the Courtroom, 84 J. CRIM. L. & CRIMINOLOGY 203, 203 (1993).

4 34 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 To achieve the highly specific results, administrators of the HGN test must follow particular standards set forth by the NHTSA. The test requires the administering officer to hold an object just above the subject s eye level at approximately twelve to fifteen inches away from her face. 26 The officer must instruct the individual to follow the object with her eyes only, while her head remains still. 27 After the object is properly positioned and instructions are given, the officer must check for signs of medical impairment. 28 Before conducting the actual test, the officer checks for equal tracking by moving the object quickly across the subject s entire field of vision to see whether the eyes follow the object simultaneously. 29 In addition, the officer also checks for equal pupil size. 30 If both are present, then the officer may continue with the test. 31 While conducting the HGN test, the officer looks for three clues in each eye that indicate impairment. 32 The clues are: lack of smooth pursuit, distinct nystagmus at maximum deviation, and the angle of onset of nystagmus prior to forty-five degrees. 33 During the test, the stimulus is moved from the center position to the far left, taking at least two seconds to move across the field of vision. 34 The officer will move the stimulus as far lateral as the eyes may go, which is called maximum deviation. 35 After holding the position for four seconds, the stimulus is shifted back to the center position, and the object is moved to the far right in the same manner. 36 Each pass must occur twice. 37 During the lateral passes, the officer is looking for a lack of smooth pursuit. 38 Smooth pursuit should resemble a marble rolling over a glass plane. 39 If the pursuit looks like a marble rolling across sandpaper, then the officer notes the clue. 40 Additionally, while the eyes are held at maximum 26. The Science & the Law, supra note Id. 28. The Science & the Law, supra note 1; Barone & Crampton, supra note 10, at The Science & the Law, supra note Id.; Steven J. Rubenzer and Scott B. Stevenson, Horizontal Gaze Nystagmus: A Review of Vision Science and Application Issues, 55 J. FORENSIC SCI. 394, 395 (March 2010), available at The Science & the Law, supra note Id. 33. Id. 34. Id. 35. See id. 36. Id. 37. Barone & Crampton, supra note 10, at The Science & the Law, supra note Id. 40. Id.

5 Winter 2013] LIMITING THE HGN TEST 35 deviation, the eyes should be relatively still. 41 If the eyes display a distinct and sustained nystagmus, then another clue will be noted. 42 Once the lateral passes and maximum deviation holds are completed, the officer concludes the test by look[ing] for the onset of nystagmus prior to forty-five-degrees. 43 The determination is made by moving the object slowly from midline to the estimated forty-five degree angle. 44 The officer should take approximately four seconds for each pass and perform two complete passes with each eye. 45 If the individual s eyes exhibit nystagmus before reaching forty-five degrees, then the officer will note this clue. 46 After the HGN test is complete, the officer will tally up the clues he noted. Because each of the three clues is tested against each eye, there is a maximum of six clues. 47 If four out of six clues are noted, then the individual is presumed to have the presence of alcohol in her system. II. LEGAL BACKGROUND OF HORIZONTAL GAZE NYSTAGMUS A. Analysis of People v. Berger Until People v. Berger, Michigan was not compelled to determine the admissibility of HGN testing. 48 In Berger, the defendant appealed a conviction for operating a vehicle while under the influence of liquor. 49 He argued that the trial court erred in allowing a police officer to testify about the HGN test. 50 Although it was an issue of first impression in Michigan, other jurisdictions had already addressed the HGN issue. 51 Consequently, Michigan had a variety of outcomes to rely on. 52 After evaluating other jurisdictions holdings, the Berger court sided with the states which acknowledge[d] the HGN test [was] scientific evidence and [recognized that] the general acceptance and reliability of the test [had] been proved. 53 Furthermore, the court decided that the prosecution was not required to present expert testimony when the HGN test was used to establish the presence of alcohol, [had] gained general acceptance in the scientific community, and [had] satisfied the 41. See id. 42. Id. 43. Barone & Crampton, supra note 10, at Id. 45. See id. 46. The Science & the Law, supra note Id. 48. See People v. Berger, 551 N.W.2d 421, 422 (Mich. Ct. App. 1996). 49. Id. 50. Id. 51. Id. at See id. at Id. (emphasis added).

6 36 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 requirements of the Davis-Frye rule. 54 Thus, in Michigan, the only foundation necessary for the introduction of evidence regarding the HGN test... is evidence that the test was properly performed and that the officer administering the test was qualified to perform it. 55 Since Berger, only one reported case and less than a handful of unreported cases have discussed the admissibility of the HGN test. Not a single court independently examined the reliability of the test; however, every court employed Frye s outdated general acceptance rule. 56 From these decisions arose a very lenient standard for admitting HGN test results if an officer demonstrated the test was properly administered, then scientific evidence was permitted to be presented to the jury to show the presence of alcohol and/or prove intoxication. 57 This injudicious approach is troublesome. First, the courts relied on Frye, which Daubert v. Merrell Dow Pharm., Inc. and FRE 702 superseded. Second, the courts accepted the admissibility of the HGN test without independently evaluating the reliability of the methodologies. Third, the courts do not require expert testimony and allow police officers to offer testimony regarding scientific evidence. Therefore, to remedy the situation it is necessary to reevaluate Berger under Daubert and Michigan Rule of Evidence (MRE) 702. B. Analysis of Frye v. United States In Frye v. United States, the defendant attempted to offer expert testimony on the results of a systolic blood pressure deception test. 58 The Court of Appeals for the District of Columbia declared, while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 59 Consequently, that court ruled that the evidence of the deception test s results were inadmissible because it had not yet gained such standing and scientific 54. Id. at 424 (citing People v. Haywood, 530 N.W.2d 497, 499 (Mich. Ct. App. 1995); People v. Davis, 72 N.W.2d 269, 281 (Mich. 1955)). 55. Id. 56. People v. Malik, No , 2010 WL (Mich. Ct. App. Aug. 10, 2010), People v. Mullen, 762 N.W.2d 170 (Mich. Ct. App. 2008); People v. Wolfe, No , 2005 WL (Mich. Ct. App. Dec. 1, 2005); People v. Marsland, No , 2005 WL (Mich. Ct. App. Aug 2, 2005); People v. LeBeau, No , 2004 WL (Mich. Ct. App. Apr. 22, 2004). 57. See, e.g., Malik, 2010 WL at *1 (believing the defendant was intoxicated based on HGN); LeBeau, 2004 WL at *3 (concluding that HGN indicated that defendant was under the influence of alcohol). 58. Frye v. United States, 293 F (D.C. Cir. 1923), superseded by Fed. R. Evid. 702, as recognized in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). 59. Id. at 1014 (emphasis added).

7 Winter 2013] LIMITING THE HGN TEST 37 recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made. 60 The general acceptance rule, stated above, has created defects in the judicial system. Under Frye s standard, a court is not required to understand the science involved. 61 It must only ensure that the techniques in question have gained approval in the relevant community. 62 Therefore, general acceptance essentially excuses the court from attempting to understand the evidence presented. 63 Furthermore, Frye s main shortcoming impacts the decisions of other courts. Once a doctrine or principle is ruled to have satisfied the Frye test, stare decisis is typically utilized and subsequent courts follow with similar decisions. 64 Before long, a body of case law [has developed] stating that a methodology [has] achieved general acceptance without there ever having been a contested, detailed examination of the underpinnings of that methodology. 65 Unfortunately, the admissibility of the HGN test demonstrates this failure, and Michigan is one jurisdiction that capitalized on Frye s shortcoming. C. Analysis of Daubert v. Merrell Dow Pharm., Inc. In Daubert v. Merrell Dow Pharm., Inc., the petitioners were claiming that Bendectin, a prescription drug marketed by respondent, had caused serious birth defects in children as a result of their mothers prenatal ingestion. 66 Though the petitioners presented the testimony of eight experts in support of their position, 67 the U.S. District Court for the Southern District of California granted respondent summary judgment because it determined that the evidence from petitioners expert witnesses did not meet the applicable general acceptance standard for the admission of testimony. 68 The Ninth Circuit affirmed, citing the rule from Frye, and held that an expert opinion based on a scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community. 69 However, the United States Supreme Court 60. Id. 61. United States v. Horn, 185 F. Supp. 2d 530, 554 (D. Md. 2002). 62. Id. 63. Id. 64. Id. 65. Id. 66. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 582 (1993). 67. Id. at Id. 69. Id.

8 38 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 disagreed with the lower courts and held that the Federal Rules of Evidence superseded the Frye test. 70 In particular, the Court designated FRE 702 to govern the admissibility of expert testimony regarding scientific evidence and charged trial judges with the responsibility of acting as gatekeeper to exclude unreliable expert testimony. 71 The Supreme Court set forth several considerations for a trial judge to use as guidance when fulfilling its gatekeeping role. These considerations are as follows: (1) Whether the theory or technique in question can be tested and, if so, whether it has been tested[;] (2) whether the theory or technique has been published and subjected to peer review[;] (3) whether the rate of error of the theory or technique has been established[;] (4) whether standards exist which can serve as controls on a technique s operation and, if so, whether the standards were used in the matter in dispute[; and] (5) whether the theory or technique has been generally accepted in the relevant community. 72 Thus, the trial judge, acting as the gatekeeper, should utilize the five standards to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. 73 As a result of the Supreme Court s decision, FRE 702 was amended in 2000 to incorporate the holdings of Daubert. 74 In 2004, Michigan Rule of Evidence (MRE) 702 was amended to more closely mirror the language of [FRE] Therefore, it can logically be inferred that MRE 702 also incorporates the Daubert factors and the need for the trial judge to act as gatekeeper. Thus, when determining the reliability of the HGN test, a court should reference the Daubert standards and employ the requirements of Rule 702, rather than relying solely on the general acceptance rule of Frye. D. Analysis of Federal Rule of Evidence 702 In response to Daubert, FRE 702 was amended to provide some general standards for the trial court to use when assessing the reliability of proffered expert testimony. 76 The amended rule reads as follows: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 70. Id. at LAWRENCE A. DUBIN ET AL., MICHIGAN EVIDENCE: 2011 COURTROOM MANUAL 215 (2011). 72. Id. at Daubert, 509 U.S. at 589 (emphasis added). 74. DUBIN ET AL., supra note 71, at Cynthia Lynne Pike, The Impact of Revised MRE 702 and 703 in Response to Daubert, 52 Wayne L. Rev. 285, (2006). 76. See FED. R. EVID. 702.

9 Winter 2013] LIMITING THE HGN TEST 39 if: (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 77 Thus, the requirements of FRE 702 are complimentary to the factors of Daubert. 78 In addition, the gatekeeping function applies to any and all expert testimony and does not distinguish between the types of testimony. 79 Therefore, the trial judge should determine the reliability of any and all expert testimony being offered. E. Analysis of Michigan Rule of Evidence 702 In 2004, Michigan Rule of Evidence (MRE) 702 was amended to conform to FRE As a result, three requirements were added to MRE 702, and the rule now reads as follows: If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 81 Corresponding with FRE 702, the new language emphasizes the centrality of a court s gatekeeping role and requires trial judges to... exclude unreliable expert testimony. 82 In fulfilling its role, Michigan courts should look to Daubert for guidance. 83 Consequently, expert testimony regarding HGN results must be based on reliable methods that were applied reliably to the facts of the case. F. The Frye Rule is Outdated Since Berger, Michigan courts have been very lenient in admitting HGN results, and its general acceptance has been carried over from case to case. Although previous courts relied upon the uncontested authority, a 77. Id. 78. United States v. Horn, 185 F. Supp. 2d 530, 535 (D. Md. 2002) (citing Daubert, 509 U.S. at ; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)). 79. See FED. R. EVID DUBIN ET AL., supra note 71, at MICH. R. EVID. 702 (emphasis added). 82. Id.; see Daubert, 509 U.S. at 587 (discussing that the trial judge must determine at the outset whether the testimony of the expert is reliable). 83. DUBIN ET AL., supra note 71, at 214.

10 40 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 challenge against the reliability of the HGN test may not be disregarded. 84 Thus, when such disputes arise, Michigan courts are compelled to independently decipher whether the methodology is truly reliable. As demonstrated above, the Frye test is no longer appropriate for determining the reliability of scientific methods and principles. The Frye test became outdated when the Federal Rules of Evidence and the Daubert decision superseded it. 85 Although the Frye test continues to exist as one of the Daubert standards, a court must do more than focus on the general acceptance of scientific evidence when determining its admissibility. 86 Therefore, when presented with a challenge as to the reliability of evidence, a Michigan court must apply the standards of MRE 702 and Daubert to the testimony of the expert witness and focus on satisfying those requirements. III. RELIABILITY OF HORIZONTAL GAZE NYSTAGMUS Michigan courts have neither evaluated the reliability of HGN under Frye nor replaced Frye with its superseding counterparts, MRE 702 and Daubert. Michigan s unverified recognition of the test s reliability is unacceptable. Contrary to what Michigan case law portrays, the HGN test is actually an intricate methodology capable of producing inconsistent and inaccurate results. To reach an accurate and acceptable conclusion, it is necessary to examine both the scientific and legal aspects of the test to determine its level of reliability and the limits of its admissibility. Therefore, the scientific underpinnings of HGN must be revealed and the law of Daubert and MRE 702 must be applied. A. Scientific Proof of Unreliability In recent history, Michigan has used the presence of nystagmus as an indicator of alcohol consumption and cause for DUI arrests. 87 Michigan has demanded very little from witnesses in demonstrating the reliability of the test and has simply relied on the assumptions made in other jurisdictions. Though moderate amounts of alcohol [may] result in the breakdown of [smooth pursuit] and increased nystagmus... HGN is a highly specific implementation of these principles. 88 In addition, there are many other conditions, aside from alcohol, that may impair smooth pursuit and exaggerate nystagmus. 89 Therefore, [the HGN test] must be evaluated on its own merits Horn, 185 F. Supp. 2d at Daubert, 509 U.S. at Horn, 185 F. Supp. 2d at See, e.g., People v. Berger, 551 N.W.2d 421, 424 (Mich. Ct. App. 1996). 88. Rubenzer & Stevenson, supra note 30, at See id. 90. Id.

11 Winter 2013] LIMITING THE HGN TEST 41 In the past decade, eye movement research has brought to light various problems concerning HGN testing. Unfortunately, the biggest obstacle lies with the most significant portion of the test: smooth pursuit. 91 Although the NHTSA provides instructions for the smooth pursuit phase of the test, administering this portion with uniform velocity and proper motion proves to be a difficult task for any individual. 92 For instance, [m]oving a stimulus at a constant speed in a straight line is not a natural motion. 93 An increase in speed could result in a saccade, which could be mistaken as nystagmus. 94 Thus, variations among different test administrators may have a direct effect on HGN s validity. 95 Furthermore, the maximum speed of smooth pursuit tracking varies greatly across people [and] stimulus conditions. 96 If an officer follows the NHTSA manual s two-second pass rule, this translates to an average speed that is barely within many people s smooth pursuit capacity. 97 If the speed goes beyond a person s capacity, brief catch-up saccades will result and it will appear as if an alcohol-related nystagmus is present. 98 Thus, these imperfections in the standardization of the test limit the reliability, validity, and accuracy of the HGN results. 99 In addition to procedural difficulties, age and gender are other factors which cause a decline in smooth pursuit performance. 100 The reason performance corresponds with age is because smooth pursuit is an agedependent motor system. 101 As people age, they react less quickly to the initial stimulus movement [], show a reduced [ratio of the eye speed to that of the target], and require more catch-up saccades to track adequately. 102 Alarmingly, a substantial decrease in performance begins in the early age group of thirty-one to forty years old. 103 Moreover, there is evidence that women perform worse in HGN testing than men of the same age. 104 Not only do age, gender, and testing techniques affect smooth pursuit, but a significant number of environmental conditions, medical conditions, and side effects from prescription drugs also interfere with an individual s 91. Id. 92. Id. 93. See id. 94. Id. 95. Id. 96. Id. at Id. at See Karl Citek et al., Nystagmus Testing in Intoxicated Individuals, 74 OPTOMETRY 695, 696 (Nov. 2003), available at See Rubenzer & Stevenson, supra note 30, at See id. at Id. at Id. at See id. at 5 (Figure 2) Id. at 5.

12 42 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 performance. In Shultz v. State, the appellate court laid out a laundry list of factors, aside from alcohol, which cause nystagmus. They include: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff s syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anticonvulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use. 105 Not included in this extensive list are environmental stimulants and several additional drugs benzodiazepines, phenytoin, carbamazepine, lithium carbonate, narcotics, choral hydrate, nitrous oxide, and phencyclidine. 106 As stated above, environmental stimulants may also cause temporary nystagmus. The strobe lights on a patrol car, insufficient lighting, strained conditions, and lateral background movement (passing vehicles) have the greatest effects on HGN testing. 107 The NHTSA manual admits that if an individual is facing passing cars or the lights on the patrol car, then optokinetic nystagmus may result. 108 This admission is troubling because most, if not all, HGN tests are administered roadside while police cruiser lights are flashing. In addition, optokinetic nystamus exhibits catch up movements similar to those caused by alcohol consumption. 109 Therefore, these environmental conditions only heighten the rate of error, which lessens the reliability of the results. Not only are there numerous other factors affecting smooth pursuit, but some of these causes also produce high percentages of impaired performance. Abnormal smooth pursuit is exhibited in seventy-three percent of patients with either Alzheimer s disease or Parkinson s disease, 105. Schultz v. State, 664 A.2d 60, 77 (Md. Ct. Spec. App. 1995); see also Rouleau, supra note 10, Rubenzer & Stevenson, supra note 30, at 6 (Table 1) See id. at 2; see also Rouleau, supra note 10, See The Science & the Law, supra note 1; see also Rubenzer & Stevenson, supra note 30, at See The Science & the Law, supra note 1.

13 Winter 2013] LIMITING THE HGN TEST 43 and seventy-six percent of patients with multiple sclerosis. 110 Additionally, sixty-nine percent of patients with localized eye disorders and forty-six percent of patients with generalized vascular disease have experienced reduced smooth pursuit and an increase in nystagmus. 111 Though these conditions have high percentages of disrupting smooth pursuit, their effects are still mistaken as alcohol consumption. 112 Police officers are only required to ask the individual whether he or she has any medical impairment that would either prohibit the subject from taking the test or that would affect the test results. 113 Relying on the subject s knowledge is injudicious. It is careless because HGN is not of common knowledge. Accordingly, there is a greater chance that the individual will not know whether he possesses a condition causing nystagmus. Lastly, as if the first extensive list of alternate causes of nystagmus was not enough, a second list exists. It reveals forty-seven other types of nystagmus, which are separate from horizontal gaze nystagmus. These additional types of nystagmus are: (1) Acquired; (2) Anticipatory (induced); (3) Arthrokinetic (induced, somatosensory); (4) Associated (induced, Stransky s); (5) Audio kinetic (induced); (6) Bartel s (induced); (7) Brun s; (8) Centripetal; (9) Cervical (neck torsion, vestibular-basilar artery insufficiency); (10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary); (11) Congenital (fixation, hereditary); (12) Convergence; (13) Convergence-evoked; (14) Dissociated (disjunctive); (15) Downbeat; (16) Drug-induced (barbituate, bow tie, induced); (17) Epileptic (ictal); (18) Flash induced; (19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in); (20) Horizontal; (21) Induced (provoked); (22) Intermittent Vertical; (23) Jerk; (24) Latent/Manifest Latent (monocular fixation, unimacular); (25) Lateral Medullary; (26) Lid; (27) Miner s (occupational); (28) Muscle-Paretic (myasthenic); (29) Optokinetic (induced, optomotor, panoramic, railway, sigma); (30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic); (31) Pendular (talantropia); (32) Periodic/Aperiodic Alternating; (33) Physiologic (end-point, fatigue); (34) Pursuit After-induced; (35) Pursuit Defect; (36) Pseudo spontaneous; (37) Rebound; (38) Reflex (Baer s); (39) See-Saw; (40) Somatosensory; (41) Spontaneous; (42) Stepping Around; (43) Torsional; (44) Uniocular; (45) Upbeat; (46) Vertical; (47) Vestibular (ageotropic, geotropic, Bechterew s, caloric, 110. Rubenzer & Stevenson, supra note 30, at Id See id The Science & the Law, supra note 1.

14 44 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric. 114 Given the exhaustive laundry lists and the excess amount of proof, it is clear that the HGN test is much more intricate than Berger made it out to be. It is unrealistic to think that a police officer, after a day or two of training, can distinguish whether he or she is undoubtedly observing the proper clues for HGN. 115 Therefore, scientific proof reveals the unreliability of the HGN test and demonstrates the dire need to independently evaluate the test s reliability and the cautions that should be exercised before admitting HGN results. B. Legal Proof of Unreliability In conjunction with the plethora of scientific proof, a considerable amount of legal proof exists regarding the unreliability of HGN testing. Courts have progressively relied upon the standards of Daubert and Rule 702, and several have adopted an exclusive definition for reliability. In the general context of scientific testing, reliability means the ability of a test to be duplicated, producing the same or substantially same results when successively performed under the same conditions. 116 When determining the reliability of the HGN test, one can expect the existence of 1) different officers, viewing the same suspect performing [HGN], would reach the same conclusion; or 2) the same officer re-testing the same suspect with the same BAC as when first tested would reach the same conclusion. 117 Therefore, if the same conclusions are not reached, then one can presume the test is unreliable. Though Michigan has yet to perform its own analysis, several other jurisdictions have evaluated the reliability of the HGN test under Daubert and FRE 702. In those cases, when a party was attempting to admit the scientific evidence of HGN, the evidence had to be a product of reliable methods or principles, producing consistent results, and such methods had to have been reliably applied to the present facts. 118 Most, if not all, of the following cases have concluded that the evidence of HGN does not meet the appropriate standard. Thus, the following cases offer good insight as to how the Berger court would conclude if it were to utilize MRE 702 and Daubert s standards of reliability Mimi Coffey, DWI-Modern Day Salem Witch Hunts, THE COFFEY FIRM: DWI TRIAL ATTORNEYS, available at (last visited Apr. 23, 2013) Id United States v. Horn, 185 F. Supp. 2d 530, (D. Md. 2002); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) Horn, 185 F. Supp. 2d at Id. at

15 Winter 2013] LIMITING THE HGN TEST United States v. Horn In United States v. Horn, the defendant was charged with driving while intoxicated and subsequently filed a motion in limine to exclude his performance on the HGN test. 119 The defendant s challenge prompted the U.S. District Court of Maryland to independently evaluate the reliability of the test to determine its admissibility. 120 After analyzing the test itself, hearing expert testimony, and applying FRE 702 and Daubert, 121 the court could not agree that the HGN test was as reliable as asserted by... the NHTSA publications, and the publications of the communities of law enforcement officers and state prosecutors. 122 As a result, it concluded that HGN evidence had limited reliability and failed to meet the requirements of Daubert... and Rule 702 as to be admissible as direct evidence of intoxication or impairment. 123 To demonstrate the unreliability of the HGN test, the defense offered two testifying expert witnesses. 124 The first expert, Dr. Spurgeon Cole, Ph.D., was a well-qualified witness who had extensively researched HGN and published peer review articles critical of the test s reliability. 125 He resolved that the HGN test has been assumed to be a reliable... predictor of driving impairment 126 merely because of its widespread use. 127 However, Dr. Cole offered substantial proof to dispel that assumption by focusing on the reliability factors identified in Daubert and FRE Specifically, he provided pertinent information regarding the methods used to develop the tests, the error rates associated therewith, and whether the methods had been published, subject to peer review, and generally accepted. 129 During his testimony, Dr. Cole exposed HGN error rates and below average reliability coefficients. He reported that for a test to be considered reliable in its respective scientific community, it must meet a particular reliability coefficient for standardized clinical tests, the accepted reliability coefficient... is.85 or higher. 130 However, the reported reliability coefficients from the NHTSA studies were significantly lower 119. Id. at Id Id. at Id. at Id. at Id. at Id Id. at 541 (emphasis added) Id Id. at Id Id. at

16 46 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 than the acceptable rate. 131 Each individual SFST ranged from.61 to.72 and their combined test-retest reliability rate was only In addition, the inter-rater reliability coefficients (each subject is scored by a different officer) had an average rate of.57, 133 and [w]hen different officers tested the same subjects at the same BAC dose level on different days the reliability was only.59 a 41 percent error rate. 134 Moreover, Dr. Cole also reported that false arrest rates were between thirty-two and forty-six point five percent. 135 With these results, it is evident that the HGN test has unacceptable reliability rates and considerably high error rates. Furthermore, Dr. Cole attacked the reliability of the HGN test s principles and methods. The NHTSA has given the impression that the SFSTs have been authenticated in the field. 136 However, out of three field studies, two were completed in controlled laboratory settings, and the other failed to meet validation recommendations. 137 The laboratory tests were especially troublesome for Dr. Cole because the conditions created in the controlled environment are dramatically dissimilar from field conditions. 138 Typically, officers in the field encounter extremely diverse weather, traffic, and safety conditions, at all hours of the day, which may ultimately influence how the test is performed. 139 Thus, according to Dr. Cole s testimony, there is an indication that the principles and methods of HGN have not been adequately field-tested and are scientifically unacceptable. 140 Dr. Cole also criticized the general acceptance of field sobriety studies and the lack of peer review publications. He testified, peer review as contemplated by Daubert... must involve critical analysis that can expose any weaknesses in the methodology or principles underlying the conclusions being reviewed. 141 Though NHTSA studies have been published in technical reports, the method and results sections were excluded. 142 These sections are a basic requirement for acceptance by the scientific community. 143 Because the methods and results have never appeared in a scientific peer reviewed journal, the opportunity for critical analysis did not exist, and it would be difficult to see how the NHTSA 131. Id. at Id. at Id Id. at Id. at Id. at Id Id Id Id Id. at Id. at Id.

17 Winter 2013] LIMITING THE HGN TEST 47 could claim that the [studies were] accepted in the scientific community. 144 Therefore, the HGN test has not satisfied the general acceptance rule, and its methodologies have not been adequately published nor reviewed by peers. Similar to Dr. Cole, the second expert witness also criticized the reliability of HGN. Harold P. Brull was a licensed psychologist who designed procedures to measure human characteristics and evaluated tests that assess human attributes. 145 He exposed the unreliability of the HGN test by offering testimony that contradicted satisfaction of the Daubert standards. 146 In his testimony, Brull stated that a substantial amount of information pertaining to HGN testing was either unknown, poorly documented, or below expected standards. 147 The results from laboratory studies were inconclusive and subsequent field studies contained insufficient detail. 148 In addition, reported accuracy rates were below acceptable standards, and error rates were completely unknown. 149 Lastly, he testified that the amount of analysis and criticism were insufficient because no reports were published in peer review journals, and the only peer review literature analyzing the tests was the highly critical article written by Dr. Cole. 150 To reach its conclusion regarding the reliability of the field sobriety tests, the U.S. District Court of Maryland analyzed the Daubert factors. 151 It took into account the evidence introduced about the methods used to develop the tests, the associated error rates, whether there was peer review analysis, and if there was general acceptance in the relevant scientific community. 152 The court concluded that the methods and principles of the field sobriety tests did not meet the requirements of Daubert and FRE 702 as to be admissible as direct evidence of intoxication or impairment. 153 Therefore, HGN evidence is unreliable and should be inadmissible to prove that an individual was intoxicated or impaired. 2. Young v. City of Brookhaven The Mississippi Supreme Court, in Young v. City of Brookhaven, also believed the use of HGN evidence should be substantially limited. Eugene Young had been convicted of driving while intoxicated after the results of 144. Id Id. at Id. at Id. at Id. at Id Id Id. at Id Id. at 557.

18 48 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 field sobriety tests were presented. 154 Young asserted that the trial court abused its discretion by admitting such evidence where there was no scientific foundation, the testifying officer had not been qualified has an expert witness, the evidence was not generally accepted, and there was no correlation established between the results of the tests and the presence of intoxication. 155 Though the Mississippi Supreme Court affirmed the lower court s decision, it determined the trial court s admission of the officer s testimony concerning the administration of the HGN test was in error. 156 Before Young s challenge, the issue of whether the HGN test was a proper method for determining intoxication had not been directly evaluated. 157 After making its own assessment, the court determined the HGN test was a scientific test, which relied upon scientifically or... professionally relevant set of observations. 158 Because the test relies upon precise observations rather than common experiences, there is a high potential that a juror will place undue weight upon testimony about the administration of the test. 159 The court stressed its concern about both the danger of unfair prejudice and the risks of confusing and/or misleading the jury. 160 As a result, the Mississippi Supreme Court concluded that HGN test results are not admissible before a jury, 161 the test was not generally accepted within the scientific community, and it may not be used to prove intoxication, to show impairment, or to say that the defendant was under the influence State v. Torres In State v. Torres, the defendant was convicted of driving while intoxicated following a jury trial in the district court. Defendant Torres appealed, contending that the testimony of his HGN test results were erroneously introduced because the State had failed to demonstrate the HGN test s evidentiary reliability in proving intoxication. 163 The appellate court certified the appeal to the New Mexico Supreme Court, which examined the issue of the admissibility of the HGN test and its overall evidentiary reliability. In its review, the court rationalized that the HGN test was not selfexplanatory, it did not involve common physical manifestations of 154. Young v. City of Brookhaven, 693 So. 2d 1355, 1356 (Miss. 1997) Id. at Id. at Id. at Id. at Id Id. at Id. at Id State v. Torres, 976 P.2d 20, 23 (N.M. 1999).

19 Winter 2013] LIMITING THE HGN TEST 49 intoxication, and it was predicated on obscure scientific and medical principles. 164 It eventually determined that the results of HGN testing constitute scientific evidence that must meet the standard of evidentiary reliability articulated in [] Daubert. 165 The trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable, 166 and in doing so, [t]he focus [] must be solely on principles and methodology, not on the conclusions that they generate. 167 Consequently, the Torres court held that it would be inappropriate to take judicial notice of the evidentiary reliability of HGN testing, 168 and as a result, an independent evaluation of the test s reliability must be performed before HGN evidence is admitted. 4. Case Summary As exemplified in the preceding cases, caution must be exercised before admitting HGN test results. Because the test is based on principles not easily understandable, the results should not be used for the purpose of proving intoxication, showing impairment, or saying that the defendant was under the influence. In addition, the results should not be presented to the jury due to the risk of undue prejudice. Thus, Michigan should follow the lead of Horn, Young, and Torres, by independently evaluating the reliability of the HGN test under MRE 702 and the Daubert standards and limiting the admissibility of HGN s scientific evidence. However, if Michigan, after having independently evaluated the reliability of the HGN test, continues to believe that the evidence is admissible to establish the presence of alcohol and to prove the defendant was intoxicated or under the influence, then an expert witness is required to testify. Under these circumstances, a police officer does not satisfy the criteria of an expert and should not be used to present HGN test results. If a police officer is put on the stand, then focus shifts from MRE 702 to MRE 701, which governs opinions given by lay witnesses and provides the limits as to what may be offered as testimony. IV. MICHIGAN RULE OF EVIDENCE 701: OPINIONS OF LAY WITNESSES As established above, the HGN test is scientific in nature and requires specialized knowledge to assist the trier of fact. If a witness is not an expert on the subject matter, then he is considered a lay witness and his testimony is governed by Michigan Rule of Evidence 701. Michigan Rule of Evidence 701 provides: 164. Id. at Id Id. at 28 (internal quotations and citations omitted) Id. at 31 (internal quotations and citations omitted) Id. at 33.

20 50 UNIVERSITY OF DETROIT MERCY LAW REVIEW ONLINE [Vol. 2:31 [i]f the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue. 169 Therefore, a nonexpert may offer opinion testimony if the testimony is reasonably based on personal knowledge or observations, and is helpful to the trier of fact. 170 A. Basis of Lay Witness Testimony Generally, [l]ay witnesses... cannot testify to matters outside the common knowledge of laypersons. 171 In other words, [t]estimony is properly considered lay opinion testimony when it is based on personal knowledge and common sense, not overly technical, scientific, or highly specialized knowledge. 172 For example, a lay witness cannot testify... that a defendant failed field sobriety tests... and... may not give testimony that is mere speculation. 173 Therefore, a lay witness is limited to his or her opinion. Their testimony must be based on definite, personal observations, which are not beyond the realm of common experience. In Michigan, lay witnesses are permitted to testify with reference to firsthand knowledge of the relevant facts, so long as a proper foundation is laid. 174 Specifically, opinions as to speed, space, distance, size, weight, temperature, the relationship of objects, cautious or risky conduct..., cause and effect,... [and] bodily appearance or condition have been allowed. Likewise, testimony as to causes and effects is inadmissible by a nonexpert witness if the issue involves scientific knowledge. 176 Therefore, a nonmedical witness may not testify to a matter beyond his or her knowledge MICHAEL D. WADE & DENNIS C. KOLENDA, MICHIGAN COURTROOM EVIDENCE 347 (Mary Hiniker et al. eds., 4th ed. 2012) [hereinafter MICHIGAN COURTROOM EVIDENCE] Id. at BARBARA E. BERGMAN & NANCY HOLLANDER, 3 WHARTON S CRIMINAL EVIDENCE 12:2 (15th ed. 2012) [hereinafter WHARTON S CRIMINAL EVIDENCE] See generally DAVID J. LANCIOTTI ET AL., 4A MICHIGAN PLEADING AND PRACTICE 36:803 (2nd ed. 2011); see also People v. Beckwith, No , 2010 WL , at *4 (Mich. Ct. App. July 29, 2010) (noting that testimony is properly considered lay opinion testimony when it is based on personal knowledge and common sense, not overly technical, scientific, or highly specialized knowledge) (internal citations omitted) WHARTON S CRIMINAL EVIDENCE, supra note 171, at 12:2; see United States v. Horn, 185 F. Supp. 2d 530, 559 (D. Md. 2002) MICHIGAN COURTROOM EVIDENCE, supra note 169, at Id. at LANCIOTTI ET AL., supra note 172, at 36: Id. at 36:815.