People v. Berger , 217 Mich. App. 213 ( 1996 )

551 N.W.2d 421 (1996) 217 Mich. App. 213

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Arthur Daniel BERGER, Defendant-Appellant.

Docket No. 168973.

Court of Appeals of Michigan.

Submitted December 5, 1995, at Lansing. Decided June 14, 1996, at 9:10 a.m. Released for Publication July 29, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert J. Berlin, Chief Appellate Attorney, and Benjamin F. Liston, Assistant Prosecuting Attorney, for people.

Mihelich & Burkart (by Joseph E. Mihelich), Eastpointe, for defendant on appeal.

Before McDONALD, P.J. and WAHLS and LIEBER,^[*] JJ.

PER CURIAM.

Defendant appeals by leave granted the circuit court affirmance of his district court conviction of operating a vehicle while under the influence of liquor, second offense, M.C.L. § 257.625(5); M.S.A. § 9.2325(5). We affirm.

The only issue to be determined on appeal is whether the trial court erred in permitting the arresting police officer to testify regarding his administration of the horizontal gaze nystagmus (HGN) test. The HGN test is one of several field sobriety tests recommended by the National Highway Traffic Safety Administration to aid officers in determining whether a driver is intoxicated. City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D.1994). As noted by the Supreme Court of Arizona in State v. Superior Court, 149 Ariz. 269, 275, 718 P.2d 171 (1986):

Nystagmus is a well known physiological phenomenon, defined and described in such tomes as WEBSTER'S NEW COLLEGIATE DICTIONARY (1980), DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (25th ed 1974), 7 ENCYCLOPAEDIA BRITANNICA, MICROPAEDIA (15th ed 1974) and STEDMAN'S MEDICAL DICTIONARY (5th Lawyer's ed 1982). That it can be caused by ingestion of alcohol is also accepted in medical literature.

"Jerk nystagmus ... is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze, disorders of the vestibular apparatus and brainstem and cerebellar dysfunction." THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 1980 (14th ed 1982).

Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they move from left to right. Superior Court, supra. The HGN test has been in use for over forty years. The test was first used in California to detect the "barb bounce" in barbiturate users and later incorporated by police in drunken driving cases. Anno: Horizontal gaze nystagmus test: Use in impaired driving prosecution, 60 ALR4th 1130, 1131. In the HGN test, the subject holds the head still and covers or closes one eye while focusing the other on an object (e.g., a pen) held at eye level. As the object is gradually moved out of the subject's field of vision toward the ear, the officer is to look for involuntary jerking of the eyeball while it tracks the object. The test is repeated with the other eye. The onset of nystagmus is the indicator for alcohol intoxication. See e.g., Superior Court, supra at 271, 718 P.2d 171.

Although the admissibility of HGN testing is an issue of first impression in this state, the issue has been addressed in several other jurisdictions with varying results.

Some courts have concluded that HGN testing is scientific evidence that unlike other field sobriety tests, is not grounded in common knowledge regarding the effects of alcohol on motor coordination, and is inadmissible in the absence of evidence that the test has gained general acceptance in the relevant scientific community and that it is reliable. People v. Leahy, 8 Cal. 4th 587, 34 Cal. Rptr. 2d 663, 882 P.2d 321 (1994); State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); Sides v. State, 574 So. 2d 859 (Ala.1990); State v. Barker, 179 W.Va. 194, 366 S.E.2d 642 (1988); State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986); State v. Cissne, 72 Wash.App. 677, 865 P.2d 564 (1994); Commonwealth v. Moore, 430 Pa.Super. 575, 635 A.2d 625 (1993); Commonwealth v. Apollo, 412 Pa.Super. 453, 603 A.2d 1023 (1992); State v. Wheeler, 764 S.W.2d 523 (Mo.App. 1989); Commonwealth v. Miller, 367 Pa.Super. 359, 532 A.2d 1186 (1987); State v. Reed, 83 Or.App. 451, 732 P.2d 66 (1987); People v. Vega, 145 Ill.App.3d 996, 99 Ill. Dec. 808, 496 N.E.2d 501 (1986).

While acknowledging HGN tests are scientific evidence, several other courts have held that general acceptance and reliability of the test have been shown and, thus, require for admission only the foundation that the test was properly administered by a qualified person. E.g., State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991); State ex rel Hamilton v. City Court of Mesa, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988); Superior Court, supra; Anderson v. State, 866 S.W.2d 685 (Tex.App. 1993); People v. Buening, 229 Ill.App.3d 538, 170 Ill. Dec. 542, 592 N.E.2d 1222 (1992); State v. Armstrong, 561 So. 2d 883 (La.App. 1990).

Still other courts have characterized the HGN test, when used only to determine the presence of alcohol rather than the quantity of the amount present, not as "scientific evidence" but as merely another form of field sobriety testing. City of Fargo, supra; Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993); State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993); State v. Edman, 452 N.W.2d 169 (Iowa, 1990); State v. Murphy, 451 N.W.2d 154 (Iowa, 1990); State v. Bresson, 51 Ohio St. 3d 123, 554 N.E.2d 1330 (1990); State v. Nagel, 30 Ohio App. 3d 80, 506 N.E.2d 285 (1986).

We agree with those cases that acknowledge the HGN test is scientific evidence and recognize the general acceptance and reliability of the test has been proved.^[1] As the Supreme Court of North Dakota noted in McLaughlin, supra at 704:

The Arizona Supreme Court's decision in State v. Superior Court is the seminal case on admissibility of HGN test results. In that case, the lower court had received voluminous testimony on the scientific basis and reliability of the test. The Arizona Supreme Court also consulted numerous treatises, articles, and empirical studies discussing the scientific basis for the test, and compiled a lengthy bibliography of those sources. See State v. Superior Court, 718 P2d at 182-184. Based upon the expert testimony and written authorities, the court concluded that the HGN test had gained general acceptance in the scientific community, and that it therefore satisfied the requirements of Frye v. United States, 54 USAppDC 46; 293 F 1013 (1923).

Because we agree the HGN test, when used to establish the presence of alcohol, has gained general acceptance in the scientific community^[2] and has satisfied the requirements of the Davis-Frye rule,^[3] the prosecution was not required to present expert testimony concerning the validity of the test and the trial court did not err in failing to conduct a Davis-Frye hearing. We conclude the only foundation necessary for the introduction of evidence regarding the HGN test in Michigan is evidence that the test was properly performed and that the officer administering the test was qualified to perform it.

We find no abuse of discretion in the lower court's admission of the evidence. The officer testified about his training and no question was raised regarding the administration of the test.

Affirmed.

NOTES

[*] Dennis B. Lieber, 17th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.

[1] We note this case does not involve the use of the HGN test to quantify the amount of alcohol present, but merely to determine its presence. We express no opinion regarding the use of the HGN test for such a purpose. The courts that have addressed the introduction of HGN testing evidence have been very careful to distinguish between the two types of information that can be obtained by use of the test. We are unaware of any court to date that has permitted the admission, as substantive evidence, of HGN test results to quantify blood alcohol level (BAC) in the absence of chemical analysis of BAC.

[2] Scientific acceptability of certain evidence may be judicially noticed in Michigan. See People v. Haywood, 209 Mich.App. 217, 530 N.W.2d 497 (1995).

[3] People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); Frye, supra.