XIV. Field Sobriety Tests

A. HORIZONTAL GAZE NYSTAGMUS

  1. IS ADMISSIBLE
    • Quinney v. State, 99 S.W.3d 853 (Tex.App.-Houston [14th Dist.] 2003, no pet.).
    • Gullatt v. State, 74 S.W.3d 880 (Tex.App.-Waco 2002, no pet.).
    • Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994).
  2. OFFICER DOES NOT HAVE TO BE AN OPHTHALMOLOGIST TO TESTIFY
    • Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994).
    • Anderson v. State, 866 S.W.2d 685 (Tex.App.-Houston [1st Dist.] 1993, pet. ref’d).
    • Finley v. State, 809 S.W.2d 909 (Tex.App.-Houston [14th Dist.] 1991, pet. ref’d).
  3. DOES THE OFFICER NEED TO BE CERTIFIED?
    1. NO, BUT RULE 702 REQUIREMENTS MUST BE MET
      • Price v. State, No. 03-04-00710-CR, 2006 WL 1707955 (Tex.App.-Austin 2006, pet. denied) (not designated for publication).
      • Burkhart v. State, No. 05-02-01724-CR, 2003 WL 21999896 (Tex.App.-Dallas, 2003, no pet.) (not designated for publication).
      • Hackett v. State, No. 2-02-112-CR, 2003 WL 21810964 (Tex.App.-Fort Worth, 2003, no pet.)(not designated for publication).
      • Kerr v. State, 921 S.W.2d 498 (Tex.App.-Fort Worth 1996, no pet.).
        • The Emerson case does not require that an officer have “practitioner certification” before his testimony on HGN is admissible. Such determination is to be covered by Rule 702 of the Texas Rules on Criminal Evidence.
    2. CERTIFICATION FROM A TRAINING COURSE WILL SUFFICE
      • Smith v. State, 65 S.W.3d 332 (Tex.App.-Waco 2001, no pet.).
        • Officer who had extensive training in standardized field sobriety tests which began at the police academy and continued with additional course work who also received certification from a course at Texas A&M University was qualified to testify about HGN.
    3. OFFICER MUST HAVE SOME CERTIFICATION
      • Ellis v. State, 86 S.W.3d 759 (Tex.App.-Waco 2002, pet. ref’d).
        • Officer who testified that he never completed the thirty test cases he was supposed to perform as part of a NHTSA course on HGN and who testified upon cross that he was not certified to perform HGN should not have been allowed to testify about HGN. Error was found to be harmless.
    4. LAPSED CERTIFICATION WILL NOT DISQUALIFY
      • Patton v. State, No. 04-10-00307-CR, 2011 WL 541481 (Tex.App.-San Antonio 2011, pdr ref’d).
        • In this case defendant contends officer 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, that the test was not done properly, and that finding of clues three in one eye and two in the other rendered test result medically impossible. The Court found certification is not necessary and while finding that the officer may have only held the stimulus for three seconds instead of four, it was within the trial court’s discretion to find that any deviation committed by officer during administration of the HGN test was slight and did not affect the reliability and admissibility of the results. Appellant exhibited three clues in the right eye and one clue in the left eye. The odd clue finding was attributed by officer to defendant’s not following stimulus, thereby preventing him finding other clues.
      • Liles v. State, No. 01-08-00927-CR, 2009 WL 3152174 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (not designated for publication). 
        • The Court held that even though the officer’s state certification (See TEX.ADMIN.CODE §221.9 (2009)) in HGN had expired the month prior to testing the appellant, and he had not taken the requisite re-certification courses, he was nevertheless qualified to testify as an expert regarding the administration of the HGN test based on his training and experience.
  4. IMPROPER FOR TRIAL COURT TO TAKE JUDICIAL NOTICE OF TEST’S RELIABILITY
    • O’Connell v. State, 17 S.W.3d 746 (Tex.App.-Austin 2000, no pet.).
      • It was improper for the trial judge to take judicial notice of the HGN test and to include a paragraph in the jury instruction to that effect. The Court holds that the reliability of HGN is a legislative fact, not an adjudicative fact, so Texas Evidence Rule 201 does not apply.
  5. WITNESS CORRELATING TEST TO BLOOD ALCOHOL CONCENTRATION
    1. CAN’T DO IT
      • Smith v. State, 65 S.W.3d 332 (Tex.App.-Waco 2001, no pet.).
      • Webster v. State, 26 S.W.3d 717 (Tex.App.-Waco 2000, pet. ref’d).
      • Youens v. State, 988 S.W.2d 404 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
        • Officer’s testimony that his finding four clues in HGN told him there was a 75% chance that the subject had a B.A.C. over 0.10 was error. (In Webster, error rendered harmless after instruction to disregard testimony.)
    2. EXCEPT WHEN DEFENDANT “OPENS THE DOOR”
      • Jordy v. State, 413 S.W.3d 227 (Tex.App.-Fort Worth 2013, no pet.).
        • Defendant opened door to otherwise inadmissible evidence on redirect examination that National Highway Transportation and Safety Association (NHTSA) manual correlated four out of six clues under horizontal gaze nystagmus (HGN) test with blood alcohol content of 0.10 or higher. He did this by eliciting from State’s expert on cross-examination that manual did not explicitly state that certain number of clues on HGN test equated to ”loss of normal use of person’s mental or physical faculties“. A party “opens the door” to otherwise inadmissible evidence by leaving a false impression with the jury that invites the other side to respond. By attempting to leave a false impression that HGN did not correlate to one definition, he opened the door to the State offering the other definition.
  6. VERTICAL GAZE NYSTAGMUS/RESTING NYSTAGMUS
    • Stovall v. State, 140 S.W.3d 712 (Tex.App.-Tyler 2004, no pet.).
      • Evidence of vertical nystagmus should not have been admitted by the trial court without conducting a Daubert/Kelly hearing. The Court points out that a trial court must actually examine and assess the reliability of VGN before it is admissible and no Court has (as of yet) done that. So Emerson could not be cited on the issue of admissibility as that case never mentioned VGN.
    • Quinney v. State, 99 S.W.3d 853 (Tex.App.-Houston [14th Dist.] 2003, no pet.).
      • In holding that it was error, albeit harmless, to allow testimony concerning “vertical nystagmus” and “resting nystagmus,” the Court distinguished these tests from horizontal gaze nystagmus tests as follows. In Emerson, the Court of Criminal Appeals exhaustively examined the scientific theory behind HGN testing, but did not address the theory behind “vertical nystagmus” or “resting nystagmus” testing. For “vertical nystagmus” and “resting nystagmus” evidence to be admissible, the proponent must present evidence of similar research of the scientific theory underlying those tests.
  7. IMPACT OF FAILING TO PERFORM FST’S PER NHTSA GUIDELINES
    • Cox v. State, No. 04-12-00224-CR, 2013 WL 1850781 (Tex.App.-San Antonio 2013, no pet).
      • In this case the Defense attorney argues that the HGN test should have no probative value because it was administered while the Defendant was in a seated position. The Court disagreed holding that Texas Courts have held that slight variations in administration of HGN tests go to weight not admissibility.
    • Maupin v. State, No. 11-09-00017-CR, 2010 WL 4148343 (Tex.App.-Eastland 2010, pdr ref’d).
      • The Trial Court did not err by finding results of HGN test admissible. The Defense points out that the officer moved the stimulus further than proscribed in the manual, and he completed the test in less than the minimum permitted time. The Court held that the variance was comparable to the leeway courts have previously afforded officers to reflect the fact that this is a field test. The Trial Court could reasonably conclude that the officer’s decision to move the stimulus further when Maupin refused to keep his head still during the exam was appropriate. There was no evidence to suggest that this impacted the test’s validity, and if Defendant’s position were accepted, an individual could always defeat the test merely by moving his head.
    • Soto v. State, No. 03-08-00256-CR, 2009 WL 722266 (Tex.App.-Austin, 2009).
      • In this case the officer admitted he deviated from NHTS guidelines. Specifically, in testing for smooth pursuit, he took longer than required as he conducted that portion three times and not two times. He also failed to hold stimulus for four seconds when checking for maximum deviation and when testing for onset at 45 degrees, he stopped at 35 degrees because that is when he saw onset of nystagmus. He also adapted the test to accommodate the fact that he is left-handed. Court held in spite of these variations, trial court did not err in admitting the HGN test and results.
    • Leverett v. State, No. 05-05-01496-CR, 2007 WL 1054140 (Tex.App.-Dallas, 2007, no pet.).
      • In holding that small variations in the way HGN was performed did not render it inadmissible, the Court pointed out that small variations in the administration of the test do not render the HGN test results inadmissible or unreliable but may affect the weight to be given to the testimony. 
    • Plouff v. State, 192 S.W.3d 213, (Tex.App.-Houston [14th Dist.] 2006, no pet.) (citing Compton v. State,120 S.W.3d 373, 378 (Tex.App.-Texarkana 2003, pet.ref’d)).
      • Here, the officer took approximately 53 seconds to complete the test but allegedly should have taken at least 82 seconds. This difference in timing is not a meaningful variation.
    • McRae v. State, 152 S.W.3d 739, 744 (Tex.App.-Houston [1st Dist.] 2004, pet. ref’d) (holding where officer admitted HGN test was invalid, court abused its discretion in admitting HGN testimony).
      • Moreover, there are intervals in the HGN test where the officer is simply positioning the eyes for the next test, and any variation in the time to do so “would have no effect on the reliability of [the] test”.
    • Taylor v. State, No. 03-03-00624-CR, 2006 WL 1649037 (Tex.App.-Austin 2006, pet. ref’d) (not designated for publication) 
      • This case involves an attack on the manner in which the HGN test was performed and attacks on the method put forward by the defense with expert witness Troy Walden. This case involves a detailed recitation of the attacks and is a good read for any prosecutor facing an expert attack on the FSTs. In response to the defense attack that the time of the passes was done incorrectly, the Court found that “Even if the time recommended by Walden and the NHTSA manual is accurate, the difference between this time and that estimated by Officer Clayton appears negligible”. The Court further found that there was nothing to show that the difference in time would result in a finding of smooth pursuit of appellant’s eyes rather than a lack of smooth pursuit. The Court also found that Walden’s testimony that Officer Clayton made only one pass of each eye in checking for smooth pursuit of the eyes when there should have been two passes of each eye did not provide a basis for excluding the HGN test. The defense also attacked the fact that the stimulus was held at maximum deviation for three rather than four seconds. Again the Court found the time difference negligible. The Court mentioned that the NHTSA manual was not introduced. Nor did the trial Court take “judicial notice” of any such manual.
    • Reynolds v. State, 163 S.W.3d 808 (Tex.App. Amarillo 2005) affirmed other grounds 204 S.W.3d 386 (Tex.Crim.App. 2006).
    • Compton v. State, 120 S.W.3d 375 (Tex.App.-Houston [1st Dist.] 2003, pet. ref’d).
      • Police officer’s slight deviation in number of seconds taken to conduct horizontal nystagmus (HGN) test from number of seconds recommended by DWI Detection Manual did not invalidate test results otherwise indicating that defendant was driving while intoxicated. The objection by the defense was that the officer administered the smooth pursuit portion of the HGN test in 11 seconds instead of the 16 seconds prescribed in the DWI Detection Manual. He argued that the officer moved the stimulus two and a half seconds faster than recommended for each eye. The Court noted that the manual itself only provides approximations of the time required for properly conducting the tests. The Defendant’s argument that the slightly increased speed with which Baggett administered the test amounted to an inappropriate application of the technique, invalidating the results was found by the Court to be untenable and, if accepted, would “effectively negate the usefulness of the tests entirely”. As to the OLS, the officer failed to instruct the defendant to keep his arms by his side. The Court found that it was error to admit this test which it did find was not done per the manual but found that error to be harmless. The Court noted that the officer’s failure to instruct Compton to keep his arms at his side should have made the test easier to perform.
  8. DVD SHOWING HGN PROPERLY ADMITTED AS DEMONSTRATIVE AID 
    • Hysenaj v. State, No. 11-13-00219-CR, 2015 WL 4733068 (Tex.App. 2015)
    • Keller v. State, No. 06-13-00042-CR, 2014 WL 1260611 (Tex.App.-Texarkana 2014, no pet.).
    • McCarthy v. State, No. 01-12-00240-CR, 2013 WL 5521926 (Tex.App.-Houston [1st Dist] 2013, no pet.).Guerrero v. State, No. 01-11-01013-CR, 2013 WL 3354653 (Tex.App.-Houston [1st Dist] 2013, pdr ref’d).
    • Rodriguez v. State, No. 04-12-00528-CR, 2013 WL 5656194 (Tex.App.-San Antonio 2013, pdr ref’d).
    • Hartsock v. State, 322 S.W.3d 775 (Tex.App.-Fort Worth 2010, no pet.).
      • In this case the State offered a DVD featuring videos of an individual’s eyes with and without nystagmus. The court held this was a properly admitted demonstrative aid to help the jury understand the signs the officer looks for when conducting the HGN test.
  9. HGN TEST DOES NOT HAVE TO BE VIDEOTAPED
    • Campos v. State, No. 09-14-00481-CR, 2015 WL 6745419 (Tex.App.-Beaumont 2016, pet. ref’d)
      • In both these cases the Defendant sought to exclude the HGN test evidence because the officer allegedly conducted the test in a location where it could not be captured on video. Due to the lack of authority supporting that position the Court of Appeals holds the trial court did not err in admitting the test results.
    • James v. State, No. 09-14-00360-CR, 2015 WL 5042123 (Tex.App.-Beaumont 2015)
      • Defendant objected to admission of HGN test at trial as it was done off camera. Court of Appeals held said admission was not error. Defendant cites no authority, and Court could find none, that said that lack of video recording renders HGN inadmissible.
  10. IN COURT EXAMINATION OF DEFENDANT FOR HGN PROPER
    • Clement v. State, No. 02-14-00267-CR, 2016 WL 3902494 (Tex. App. – Fort Worth 2016)
      • At trial officer testified he had mistakenly marked box in his report indicating Defendant had resting nystagmus. After this was explored on cross-examination, the State, in Court, asked officer to step down and check defendant for resting nystagmus. Defense objected on two grounds: One that whether it existed now does not speak to what Defendant had three years ago (rejected). Then objection that it was violation of Fifth Amendment (rejected). Officer performed test and testified there was no “resting nystagmus”. Comparing the compelled HGN test to voice exemplar the Court rejected this argument and held it was proper.
  11. NEED NOT INQUIRE ABOUT MEDICAL HISTORY/GLASSES
    • Williams v. State, No. 14-16-00292-CR, 2017 Tex. App. LEXIS 3240, 2017 WL 1366690 (Tex. App – Houston 2017)
      • The defendant argued that the results of the HGN should be suppressed due to the fact that the officer did not properly administer the test because the officer failed to ask the defendant if he had any recent head injuries or whether he was wearing glasses. The court held that the officer properly administered the test when the officer checked the defendant for equal pupil size and equal tracking.

B. ONE LEG STAND = LAY WITNESS TESTIMONY

Taylor v. State, No. 03-03-00624-CR, 2006 WL 1649037 (Tex.App.-Austin 2006, pet. ref’d) (not designated for publication).

McRae v. State, 152 S.W.3d 739 (Tex.App.-Houston [1st Dist.] December 02, 2004, pet. ref’d).

We conclude that the testimony by the arresting officer concerning the one-leg stand, which follows, is lay witness testimony governed by Rule 701 of the Texas Rules of Criminal Evidence. That an officer uses terms like “standardized clues,” “test,” or “divided attention,” does not mean the officer is no longer testifying as a lay witness and begins to testify as an expert, who must therefore be qualified. The Court disagreed with U.S. v. Horn, 185 F Supp. 2d 530, (D.Md.Jan. 31, 2002) opinion to the extent that it holds that using these words automatically changes lay testimony into expert testimony. We conclude that, under the circumstances demonstrated here, the words “clues”, “test”, and “divided attention” merely refer to observations by the peace officer based on common knowledge observations of the one-leg stand and do not convert the lay witness testimony into expert testimony. We hold that the officer’s testimony, as described above, concerning his observations of appellant’s performance on the one-leg-stand test were admissible as lay witness testimony under Rule 701 of the Texas Rules of Criminal Evidence.

C. WALK AND TURN = LAY WITNESS TESTIMONY

Plouff v. State, 192 S.W.3d 213 (Tex.App.-Houston [14 Dist.], 2006, no pet.).

Arresting officer’s testimony regarding the results of walk-and-turn and one-leg stand tests was admissible as lay witness testimony in driving while intoxicated (DWI) prosecution. Officer’s testimony about defendant’s coordination, balance, and mental agility problems exhibited during one-leg stand and walk-and-turn tests was observation grounded in common knowledge that excessive alcohol consumption could cause problems with coordination, balance, and mental agility.

D. OFFICER MAY TESTIFY ABOUT SCIENTIFIC STUDIES FINDINGS RE: THE RELIABILITY OF FST’S

Lorenz v. State, 176 S.W.3d 492 (Tex.App.-Houston [1 Dist.] 2004, pet. ref’d).

Arresting officer’s testimony that studies had found that the three field sobriety tests conducted on defendant were 91- to 95-percent accurate when used in conjunction with each other, did not impermissibly correlate to defendant’s quantitative blood-alcohol content (BAC).

E. OFFICERS MAY COERCE SUSPECT INTO PERFORMING FST’S

Oguntope v. State, 177 S.W.3d 435 (Tex.App.-Houston [1st Dist.] 2005, no pet.).

Officer told Defendant who had initially refused to do FSTs that he would take him to jail if he continued to refuse after which Defendant did FSTs. Prior to his plea, Defendant had moved to suppress the results of his FSTs on the grounds he was improperly coerced into doing the tests by the officer’s statement. The Court of Appeals held that there was no due process violation in admitting the test results. In so holding, the Court points out that Court of Criminal Appeals has held that authorities may compel a defendant to submit physical evidence of intoxication. It distinguishes this case from Erdman as there are no statutory warnings that apply to FSTs.

F. REFUSAL TO PERFORM FST’S = PC TO ARREST AND EVIDENCE OF GUILT 

Texas Department of Public Safety v. Gilfeather, 293 S.W.3d 875 (Tex.App.-Fort Worth 2009).

Maxwell v. State, 253 S.W.3d 309 (Tex.App.-Fort Worth, 2008, pet. ref’d).

Officer may consider defendant’s refusal to do Field Sobriety Tests when determining the issue of probable cause to arrest.

Texas Department Of Public Safety v. Nielsen, 102 S.W.3d 313 (Tex.App.-Beaumont, 2003, no pet.).

Substantial evidence existed of probable cause for driver’s arrest for driving while intoxicated (DWI) where police officer noticed several signs of intoxication including alcoholic odor coming from vehicle, driver’s refusal to make eye contact with officer, driver’s refusal to roll down window, driver’s response that he had consumed two to four beers when asked if he had been drinking, and driver’s refusal to take field sobriety tests. The totality of the circumstances is substantial evidence of probable cause for Nielsen’s arrest.

Lonsdale v. State, No. 08-05-00139-CR, 2006 WL 2480342 (Tex.App.-EI Paso, 2006, pet. ref’d).

Defendant challenged the admission of testimony that he refused to perform the field sobriety tests. He complains that the evidence was irrelevant, and if relevant, more prejudicial than probative. He also points to violations of his constitutional rights, arguing that the invocation of the right to counsel, the right to remain silent, and the right against unreasonable search and seizure may not be relied upon as evidence of guilt. The Court rejects these arguments and finds that a defendant’s refusal to perform FST’s is relevant and admissible. Court further held that it was proper argument that the jury could infer that his refusal was evidence of intoxication.

State v. Garrett, 22 S.W.3d 650 (Tex.App.-Austin, 2000, no pet.).

Defendant’s argument—which prevailed in the trial court—was that classic indicators of inebriation that would be present in a normal DWI arrest were absent in this case. We note that many of these factors such as performance on field sobriety tests, were absent as a direct result of defendant’s conduct—i.e., his refusal to participate in any of these tests. While we regard these missing factors as a part of the totality of the circumstances, they are only a part, and where many of the missing factors are due to a defendant’s conduct, we believe that the officers could reasonably consider that conduct as part of the totality of the circumstances that provided probable cause to arrest.

Dawkins v. State, 822 S.W.2d 668, 671 (Tex.App.-Waco, 1991, pet. ref’d).

In prosecution for felony driving while intoxicated, admission of video tape which showed defendant’s refusal to submit to sobriety tests requiring him to recite alphabet and to count aloud was not violation of defendant’s constitutional privilege against self-incrimination. Evidence that defendant refused to submit to sobriety tests did not constitute violation of defendant’s constitutional right to be free from self-incrimination where there was no indication that defendant was compelled to perform the sobriety tests.

Barraza v. State, 733 S.W.2d 379 (Tex.App.-Corpus Christi, 1987, pet. granted) aff’d 790 S.W.2d 654 (Tex.Crim.App.June 20, 1990).

A request to perform a field sobriety test is sufficiently similar to a request to perform a breathalyzer test so as to allow an analogy to the law governing the admissibility of evidence of a suspect’s refusal to take a breathalyzer test. Both types of tests are designed to test the sobriety of the suspect. We can discern no reason to distinguish between them with regard to the admissibility of refusal to perform the tests.

G. FAILURE TO EXPLAIN FST’S IN DEFENDANT’S NATIVE TONGUE

State v. Tran, No. 03-13-00016-CR, 2014 WL 4362964 (Tex.App.-Austin 2014).

This case involves a Vietnamese Defendant who had some language issues. At the conclusion of a motion to suppress what was termed an illegal arrest, the Judge granted the motion finding that the Defendant spoke very little English and concluding that what the officers called evidence of intoxication in the mistakes he made responding to questions was really caused by the Defendant’s lack of understanding. In addition his poor performance on FST’s was also caused by his inability to understand the instructions due to a language barrier. In reversing the Trial Court, the Court pointed to the fact that there is evidence shown on the tape that supports probable cause to arrest independent of the FST’s and other matters that might be attributable to language difficulties.

Phong Xuan Dao v. State, 337 S.W.3d 927 (Tex.App.-Houston [14th Dist.] 2011, pet. ref’d).

No constitutional violation of Defendant’s rights and no right to a jury instruction when field sobriety tests are not explained in defendant’s native tongue or preferred language.

H. DRE TESTIMONY ADMISSIBLE

Richter v. State, No. 06-15-00126-CR, 2015 WL 9287809 (Tex.App.-Texarkana 2015)

DRE Officer was qualified as an expert in determining whether a person was intoxicated by a substance other than alcohol and allowing him to testify was not error. The court noted that the DRE has been recognized by other appellate courts.

Wooten v. State, 267 SW3d 289 (Tex.App.-Houston (14th Dist.) 2008 pet ref’d).

The trial court was within its discretion in determining that Officer called by State was allowed as a DRE to testify to general factors he looks for when determining whether a person is under the influence of marijuana and that marijuana was found in appellant’s urine sample, as reflected in Defendant’s medical records. However, the trial court did not permit Officer LaSalle to testify that appellant was under the influence of marijuana.

Everitt v. State, No. 01-10-00504-CR, 2014 WL 586100 (Tex.App.-Houston [1st Dist] 2014, no pet.).

This is the first case I am aware of that speaks to the admissibility of a DRE’s testimony after a Kelly Hearing. The Trial Court held that the DRE expert in this case was qualified by education and experience and said his analysis was based on valid scientific method and his application of his expertise was valid as well. The videotape of the Defendant’s statement during the DRE evaluation and the testimony of the DRE expert were deemed admissible.