State Supreme Court Issues Significant Rulings on HGN Evidence and Blood Draws in DWI Cases

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Two of last week’s opinions from the North Carolina Supreme Court address significant legal issues arising in impaired driving cases. In State v. Godwin, the supreme court reversed the court of appeals, holding that the trial court was not required to explicitly recognize a law enforcement officer as an expert witness before the officer could testify to the results of a Horizontal Gaze Nystagmus (HGN) test.  In State v. Romano, the supreme court upheld the court of appeals’ determination that the withdrawal of blood from an unconscious impaired driving defendant violated the Fourth Amendment, notwithstanding a state statute authorizing this practice.

State v. Godwin. The defendant in Godwin was stopped for speeding and was subsequently charged with driving while impaired. At trial, the State elicited testimony from the law enforcement officer who arrested the defendant about the defendant’s performance on an HGN test.The defendant objected to this testimony on the basis that the officer had not been qualified or tendered as an expert. The State argued that the officer did not have to be an expert because he was merely testifying to the administration of the test and his observations. In addition, the State argued that since the officer had successfully completed training in HGN, he was qualified to testify about the defendant’s performance on the test. After conducting its own voir dire, the trial court concluded that the officer’s training and experience rendered him qualified to testify about his administration of the HGN test and the indicators of impairment that he observed. The defendant was convicted at trial and appealed.

Court of appeals. The court of appeals held that the trial court erred by allowing the officer to testify without being formally tendered or recognized as an expert. The appellate court further determined that the error was prejudicial and awarded the defendant a new trial. The State sought review by the North Carolina Supreme Court.

Supreme court. The state supreme court determined that the trial court did not err in admitting the officer’s testimony. The supreme court reasoned that the trial court had implicitly found that the law enforcement officer was qualified as an expert. As support for this conclusion, the Godwin court pointed to the evidence that was before the trial court regarding the officer’s training and qualifications and the fact that the trial court overruled the defendant’s objection to the officer’s testimony.

The supreme court further determined that the trial court established the reliability of HGN testing before allowing the officer to testify about the defendant’s performance. On voir dire, the officer testified that the HGN test was administered in accordance with NHTSA standards, those standards were derived from a scientific study, HGN test results are a reliable indicator of impairment, and he applied the proper principles and methods in the defendant’s case.

Not State v. Helms. The supreme court distinguished State v. Helms, 348 N.C. 578 (1998)—the case relied upon by the court of appeals below—on the basis that Helms involved the “reliability of the HGN test, not the observed impairment of the individual being subjected to the HGN test.” In Helms, there was no evidence regarding the reliability of the test or that the trial court implicitly found the officer to be an expert. The court characterized the facts in Godwin as significantly different, noting, among other differences, that the enactment of Rule 702(a1) post-Helms “clearly signaled that the results of the HGN test are sufficiently reliable to be admitted into the courts of this State.”

Reading the tea leaves. The most interesting aspect of Godwin—to me at least—is not its express holding but instead the court’s commentary about the reliability of HGN. Prosecutors seeking to introduce evidence of HGN results through the testimony of a law enforcement officer are likely to cite as support Godwin’s conclusion that the officer’s testimony on voir dire in that case was sufficient to established the reliability of HGN testing. I also wonder whether the supreme court’s description of the legislative impetus for Rule 702(a1), without a corresponding mention of the 2011 amendments to Rule 702(a), signals the court’s view that State v. Smart, 195 N.C. App. 752 (2009) (discussed here), did in fact survive the state’s adoption of Daubert.

State v. Romano. The court of appeals held in Romano (discussed here) that the withdrawal of blood from an unconscious impaired driving suspect without a warrant and without an exigency violated the Fourth Amendment. The court rejected the State’s argument that the withdrawal of the defendant’s blood was permissible because G.S. 20-16.2(b) allows an officer to direct the taking of a blood sample from an unconscious defendant without first advising the defendant of his implied consent rights or seeking his consent. The State sought discretionary review.

Supreme court. The state supreme court affirmed, holding that G.S. 20-16.2(b) was unconstitutional as applied to the defendant because it permitted a warrantless search that violated the Fourth Amendment.

Analysis. The state supreme court first determined that G.S. 20-16.2(b) could not be upheld on the basis that the dissipation of alcohol creates a per se exigency permitting the warrantless withdrawal of blood. This type of per se exception to the warrant requirement was rejected by the United States Supreme Court in Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013), where the court held that the reasonableness of a warrantless blood test of a drunk-driving suspect must be determined case by case based on the totality of the circumstances. The Romano court further noted that the circumstances of the case did not establish exigent circumstances: multiple officers were present; the magistrate’s office was only a few miles away; search warrants for blood are fill-in-the-blank forms that are not time-consuming; and magistrates were on-duty and available.

The court then turned to the State’s contention that the defendant consented to the blood draw by virtue of the implied consent statutes. The State struck out there as well. The court reasoned that treating G.S. 20-16.2(b) as an irrevocable rule of implied consent would not comport with the consent exception to the warrant requirement because it would not take into account the totality of the circumstances. The court explained that while implied consent laws and “a person’s decision to drive on public roads are factors to consider” in analyzing consent, those factors were not enough to establish voluntary consent.

Dissent. The majority in Romano held that the State waived arguments that there was no state action and that the good faith, inevitable discovery, and independent source exceptions to the exclusionary rule applied. Chief Justice Martin, joined by Justices Newby and Jackson, dissented on the basis that the good faith exception applied and the State had preserved that argument for appeal. Justice Newby also wrote a separate dissent expressing his view that the evidence in Romano should not have been suppressed because the blood was withdrawn by a hospital employee who was not a state actor.

As-applied? The Romano court held G.S. 20-16.2(b) unconstitutional “as applied” to the defendant. I cannot, however, conceive of a circumstance in which the statute could be applied constitutionally. If the State withdraws blood from an unconscious defendant pursuant to an exigency, it will be operating outside of the implied consent statutes and not pursuant to G.S. 20-16.2(b). And I don’t know how the State could show voluntary consent by an unconscious person. As a result, I suspect that the State will not opt to rely on the provisions of G.S. 20-16.2(b) in future impaired driving investigations.

3 comments on “State Supreme Court Issues Significant Rulings on HGN Evidence and Blood Draws in DWI Cases

  1. Regarding Godwin, I’m still unsure what the Supreme Court expects of officers attempting to testify about HGN. Specifically, the Court is being maddeningly equivocal about the interaction between 702(a) and 702(a1).

    The issue comes down to 702(a)(2), proving that the testimony is the product of reliable principles and methods. That is the essence of every objection to an officer testifying about HGN. Any officer can explain what they observed an individual’s eyes do and that they administered the test in accordance with NHTSA standards, thereby satisfying 702(a)(1) and (a)(3). Officers generally have trouble explaining the scientific principles underlying HGN, and thereby proving its reliability as required by 702(a)(2).

    It would seem to me that a common sense reading of 702(a1) resolves this problem by allowing anyone who has successfully completed training in HGN testify regarding HGN results and the issue of impairment. Implicit in the statute is the understanding that HGN is the product of reliable scientific principles and methods. The Supreme Court clearly agrees with this interpretation, saying on page 14 of the opinion: “Furthermore, with the 2006 amendment to Rule 702, our General Assembly clearly signaled that the results of the HGN test are sufficiently reliable to be admitted into the courts of this State.”

    However, the Supreme Court does not specifically state that the existence of 702(a1) obviates the need for officers to testify about the scientific principles underlying HGN. The Court doesn’t actually clarify the function of 702(a1) at all. A plain reading of the Court’s interpretation of the General Assembly’s intent behind 702(a1) leads to the conclusion that officers do not have to testify regarding the scientific principles underlying HGN, but by not explicitly saying that the Supreme Court has left the door open for more objections, more wasted court time on voir dire hearings, and more wildly disparate rulings.

    I’ll lay out my biases: I’m a prosecutor, I want HGN admissible. But more than that, I want clarity. Just tell me the rules so I know how to play the game. I don’t understand why it’s so difficult to get clear guidance on a troublesome issue that pops up so often in trial courts across the state, especially when we have a statute that (in theory) directly addresses the issue.

  2. HGN fails to come close to meeting Daubert scrutiny as a “scientifically reliable” process on several fronts. More on that in a bit. From the outset, the hilarity of 702(a1) is that HGN, if it is presumed to be what the government claims it to be, does not measure “impairment.” Rather it measures estimates of Blood or Breath Alcohol Concentrations or “numbers.” So relying on 702(a1) is erroneous from the outset because either one or both of these statements must be true: 1) The legislators were so naive to the principles of HGN when writing this law that they didn’t even know what it measures – number vs. impairment, and/or 2) The rule doesn’t apply to HGN due to the misstatement of what is alleged to derive from its implementation. Specifically, HGN measures numbers not impairment.

    So for any person to testify that 6/6 clues on HGN signifies impairment is an intellectually dishonest statement at best. The NHTSA HGN training talks only about numbers of BAC. The supposed validation studies talk only about numbers of BAC. Yet the legislature erroneously constrains the supposed testimony under 702(a1) to “solely on the issue of impairment and not on the issue of a specific alcohol concentration level” or numbers. That’s simply backwards and dead wrong.

    The comedic value of this reality is intensified by the fact that by NHTSA’s own training principles, someone can exhibit 6/6 clues on HGN and have a BAC under the legal limit. Tharp’s Equation, taught to DRE students – and conveniently left out of the regular SFST training taken by the masses of unsuspectingly naive officers – is that the estimated BAC = 50 – the angle of onset. The 5th and 6th clues of HGN are whether the suspect had an angle of onset prior to 45 degrees. For the HGN test as provided by NHTSA, this is a “yes or no” clue. Yes the nystagmus initiated prior to 45 degrees, or no it did not. If the suspect exhibits nystagmus prior to 45 degrees in both eyes, he exhibits presumably 6/6 clues and thus is deemed to be “impaired.” Keep in mind, the training and supposed validation studies are based on specific BAC numbers not on a generalized concept of “impairment.” Unfortunately for the State, 50-44=.06 and 50-43=.07. Therefore, based on NHTSA’s own supposed “scientific” principles, 6/6 on HGN can easily represent a false positive that someone is impaired without knowing the actual angle of onset. Again, keep in mind SFST training does not require the officer to estimate the angle of onset rather only to *estimate* whether it occurred prior to 45 degrees. These two ugly realities are regularly swept under the rug in our courts on a daily basis. These warts remain for HGN proponents even if we can assume HGN is scientifically validated and meets the Daubert requirements. We cannot, however.

    The Daubert Requirements:

    1. Whether the theory or technique employed by the expert is generally accepted in the scientific community;
    2. Whether it has been subjected to peer review and publication;
    3. Whether it can be and has been tested;
    4. Whether the known or potential rate of error is acceptable; and
    5. Whether the research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony

    Applying HGN to these principles is laughable. HGN has NEVER been accepted by the scientific community. NHTSA is a government entity. There are no other validation studies except those performed by a government, non-scientific entity. NHTA’s supposed validation studies have NEVER been peer reviewed by the scientific community. HGN cannot be tested as to its appropriate application to an individual defendant because the evidence is seen by only a State’s witness in real time without any collection of the data to be immediately lost forever. A defendant cannot test whether this was done correctly, or even refute it for that matter. I dare say there is a police officer on the planet who can discuss the potential rate of error and whether that is acceptable in either specific application or basic principle. Nor has anyone from the scientific community come forward to say that this procedure is what it claims to be and is scientifically reliable as to acceptable rates of error. Lastly, HGN, by its very nature, is done solely to build a case against a criminal defendant in preparation for litigation. Therefore it is wrought with all the uncertainties that go along with the innate pressures to prepare evidence in the form of one’s interests. HGN falls so far short of complying with the Daubert requirements, that it is downright frightening the government continues to push this issue. This is a government test, derived by the government, used nowhere else in the scientific (medical or otherwise) community, implemented solely by the government for the purposes of convicting accused people at trial. That is the antithesis of what Daubert demands on every level.

    Lastly, let’s address – yet again – what is an outrageously incorrect assessment of the case at issue by the NC School of Government. I am left – yet again- wondering if the writer of this blog even reads the cases before writing a pro-government post tilting and at times distorting the premise of the ruling in favor of the State. This holding is about implicit versus explicit rulings on expert testimony. If a trial judge overrules my objection to an officer testifying about HGN for not being an expert or for not being able to prove HGN is a scientifically reliable “thing”, then she can do so by making specific findings (explicitly) *or* alternatively by simply letting the officer testify over my objection (implicitly finding him to be an expert by overruling my objection). The court then states, and this is key if you happened to just skim the case prior to writing this blog post, “Relevant to the issue in this case, the 2011 amendment did not change the basic structure for a trial court’s exercise of its gatekeeping function over expert testimony….. Here we can detect no such abuse of discretion.” The very fact that they are looking at “Abuse of Discretion” as to the gatekeeping function means the assessment must be made as to all aspects of HGN as expert testimony, both reliability of the test itself and as to the individual alleged “expert’s” ability to discuss the matter in a manner that is so scientifically and technically sound in his specialized knowledge that he assists the trier of fact by providing additional value and understanding to the fact asserted.

    Interestingly, the Court then goes on to somehow state that it is critical that an officer be allowed to testify as an expert as to his observations but not the reliability of the test. Given this goes to a “weight” argument of sorts, I presume, we are left allowing a guy to testify “expertly” about something that may or may not be “reliable?” On what planet does that seem remotely fair to the accused? It may not be reliable, yet this expert is going to tell a judge or jury that he saw 6/6 clues of HGN and the same is reliable evidence of impairment? Even more concerning is that we know from the discussion above 6/6 clues could be indicative of someone with a BAC BELOW THE LEGAL LIMIT.

    While on the discussion of the last two HGN clues, we also need to consider that this “scientific test” is conducted based on “estimations.” That alone is a bit of an oxymoron: “Scientifically reliable estimations.” Let that sink in. The last two clues, the onset prior to 45 degrees in each eye, are done based on the officer estimating angles and distances from the subject’s face. Given what we know about how critical the angles are to this procedure from Tharp’s Equation – a theory taught by NHTSA mind you – we begin to realize how insane it is for an officer to conduct this test without having a protractor or ruler to measure distance and angles. One degree off – one single degree – is a false positive for a .01 difference in BAC. Take a piece of paper out and draw a dot. Take your time and estimate 10 – 12″ from the dot. Estimate from that dot out to the side 44 degrees. Draw a dot. Now go back and see where you are using a protractor and ruler. How accurate were you? Would you put someone’s guilt or innocence on that dot? Would you put someone’s job and livelihood on that dot? The reality is people are drastically affected by DWI convictions. People lose jobs. They lose the ability to provide for their families. And we are to put, potentially, all of that on a faux “science” like HGN – on the estimation of that dot? The reality is even if HGN is what the government/NHTA claims it to be, it cannot be administered in the field with enough certainty and reliability – with acceptable margins of error – to withstand a Daubert objection. That harsh reality will remain true no matter how quickly the legislature – which doesn’t understand what the test even measures – rushes to remedy this issue for the State.

    Nonetheless, this case does NOT state that HGN has been universally accepted as reliable nor does it state that an officer completing SFST training makes him an expert to testify about it. This case, like thankfully so many, simply empowers the judge to act as the gatekeeper as to such evidence on a case-by-case assessment of the facts. This case comes nowhere close to the “tea leaves” asserted by the author of this post.

    The scariest reality of all…and this is frightening on many levels… is that this entity, the NC School of Government, will be teaching judges next week. A self proclaimed “Law Enforcement Agency” will be actively educating our judges as to the “tea leaves” rather than the law. I wonder, honestly and openly, whether this comment will make it to the light of day prior to the Judge’s Conference.

    • This is an excellent post. I have argued over and over that nystagmus does not measure impairment. It is designed to predict alcohol concentration. If you read the studies they state that nystagmus can’t be used to determine mental or motor skill impairment. I have had one judge agree. DWI is treated differently by the courts and the supreme court is loathe to make any ruling contrary to the successful prosecution of dwi. Nystagmus is not determine impairment. At best, it is designed to predict bac concentration. And so, as pointed out in the post above cannot be admissible based on how the statute is written.

      “successfully completed training” can mean a five minute conversation in the hallway about how nystagmus works. Doctors have to pass a much more rigorous exam to be qualified as experts although their testimony is the same.
      Finally, many thing other than etoh cause nystagmus. Officers are not educated on other causes like high refractive error (extreme myopia), medications-anti epilepsy, congential cataracts, inflammation of the inner ear,
      caffeine, fatigue. Some nystagmus is acquired in adults and the cause is unknown. diabetes. hyperventilation. nicotine. multiple sclerosis.

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