State v. Younts: Rule 702 Does Not Require Proof that HGN Testing is Reliable

Folks, we have an answer. The court of appeals held yesterday in State v. Younts, ___ N.C. App. ___ (2017), that a law enforcement officer trained to administer a Horizontal Gaze Nystagmus (HGN) test may properly testify about the results of a test he administered without any determination by the trial court that HGN testing is scientifically reliable.

Background. Defense attorneys, prosecutors and judges who are involved in the litigation of impaired driving cases know that the admissibility of HGN evidence has been hotly debated for decades. The intensity of the debate increased after the General Assembly adopted the Daubert standard for the admission of expert scientific testimony. Several earlier blog posts (here, here, here, and here) chronicle the legal arguments and developments in this area. Last month, the state supreme court intimated in State v. Godwin, ___ N.C. ___ (June 9, 2017), that proof of HGN’s reliability might not be required pursuant to a subsection of Rule 702 that pre-dates the adoption of Daubert. Younts made that suggestion into law, relying on Godwin in determining that proof of HGN’s reliability was not in fact required.

Younts facts. Highway Patrol Trooper Myron Coffey stopped a car driven by Jennifer Younts on Interstate 240 near Asheville after he clocked its speed at more than 20 mph over the limit. When he approached the car, Trooper Coffey smelled alcohol. He subsequently noted that Younts’ eyes were red and glassy and her speech was slurred. Younts admitted that she had been drinking. Trooper Coffey asked Younts to perform the standardized field sobriety tests: the HGN test, the walk-and-turn test, and the one-leg stand test. The trooper observed several clues of impairment. Younts was arrested for impaired driving. She submitted to a breath test at the jail, which reported an alcohol concentration of 0.06.

Procedural history. Younts was convicted in district court and appealed to superior court. Before trial, she filed a motion to exclude expert testimony regarding the results of her HGN test and requested a hearing. Trooper Coffey testified on voir dire that he had completed a 40-hour course on the administration of standardized field sobriety tests, including the HGN test, and that he took refresher courses every two years. He explained how the HGN test was administered and what he looked for. He testified that he administered Younts’ test in the way he had been trained. He conceded on cross-examination that he had not independently researched HGN testing and that he did not know the rate of error associated with that sort of testing.

The trial court denied Younts’ motion to exclude the HGN evidence, concluding that Trooper Coffey was qualified as an expert in administering an HGN test and that the HGN evidence would be helpful to the jury. Trooper Coffey testified at trial that he noted six out of six clues on Younts’ HGN test. On cross-examination, he referred to “a few studies” from “the 1980’s” stating that four out of six clues indicated that a person had an alcohol concentration of 0.08.  He could not identify the studies or their rate of error.

The jury found Younts guilty of driving while impaired. Younts appealed, arguing in part that the trial court erred by allowing Trooper Coffey to testify about the results of her HGN test without first requiring evidence that HGN testing was reliable.

Holding. The issue before the court of appeals was whether Rule 702(a) requires the State to lay a foundation for the reliability of HGN testing before a qualified expert may testify about the results of an HGN test. The court of appeals determined that Trooper Coffey’s testimony did not establish that the HGN test was a reliable indicator of impairment and that the trial court had not taken judicial notice of the test’s reliability. Nevertheless, the appellate court determined that the trial court did not err by admitting the trooper’s HGN testimony because Rule 702(a) does not require such a foundation for HGN testimony.

Analysis. The court began by reviewing the case law and legislative enactments underpinning the HGN admissibility debate—you can read more about that here (and of course, in the opinion itself). Though the court conceded that a “strict reading of Rule 702” would suggest that the trial court erred by admitting the HGN testimony without taking judicial notice of or inquiring into the reliability of the HGN test, it reached a different conclusion in light of the Supreme Court’s decision in Godwin. Slip op. at 16.

Godwin’s statement that the adoption of Rule 702(a1) “clearly signaled that the results of the HGN test are sufficiently reliable to be admitted into the courts of this State” echoed the holding in Smart that the State does not have to prove the reliability of HGN testing. Based on this similarity, the Younts court concluded that Smart’s holding survived the 2011 amendments to Rule 702. In other words, no Daubert reliability review is required for HGN testing because of the special admissibility provisions in Rule 702(a1). The court explained that under Godwin, it was “compelled to hold that the trial court did not err by admitting Trooper Coffey’s testimony without first making . . . a [reliability] determination.” Slip. op. at 17.

What’s next? Judge Inman wrote the majority opinion in Younts. She was joined by Judges Bryant and Stroud. There was no dissent; thus, the defendant has no appeal of right, but may petition the state supreme court for discretionary review. Given that the holding in Younts was foreshadowed by Godwin, I don’t know how likely it is that such review will be granted.

As a result, the HGN buck may stop at Younts . . . unless the General Assembly again amends Rule 702.

13 thoughts on “State v. Younts: Rule 702 Does Not Require Proof that HGN Testing is Reliable”

  1. How does this affect the ruling requiring officers to qualify as experts when testifying in DWI cases with HGN?

  2. The COA only indicated that Rule 702(a)(2) is not implicated when an officer testifies about HGN testing. This subsection requires the testimony be “the product of reliable principles and methods.” The COA did not address subsection (a)(3), which requires “[t]he witness has applied the principles and methods reliably to the facts of the case.”

    Assuming the Younts defendant does not seek review from the Supremes, subsection (a)(3) will be the focus of future litigation. It is not unusual to see officers rush through the HGN test. This is problematic for several reasons. The NHTSA standards require the test to conducted slowly. For example, the officer is required to check for nystagmus at maximum deviation for 4 seconds. The importance of this requirement is crucial, as most people will exhibit nystagmus for 2-3 seconds when turning their eyes as far to one side or the other–without having consumed a central nervous system depressant. According to NHTSA, a non-impaired person’s nystagmus will cease sometime before 4 seconds after holding their eyes at maximum deviation. With the proliferation of dash-camera videos, those of us in the defense trenches have seen many officers that rush through this portion of the test. As a result, officers will indicate they observed nystagmus without allowing the suspect to maintain maximum deviation for 4 seconds–as required by the NHTSA standards. Personally, I have seen experienced officers check for sustained nystagmus as maximum deviation for no more than 2 seconds, and then indicate in court the clue was present.

    One hopes that our appellate courts will hold officers’ feet to the fire on this part of the test, especially since the Supremes and the COA has favorable cited NHTSA standards and their manuals.


    • When HGN is not done properly, the result will be that an officer DOES NOT observe HGN that IS present. That benefits the impaired driver, not the State of North Carolina and the citizens sharing the road with the impaired driver. We also want the officer to do it right, so that individuals that are impaired are detected and arrest decisions are valid. HGN has been repeatedly tested and validated, and organizations other that law enforcement (American Optometric Association and the ACLU!) have voiced their approval of this test.

    • I have little faith that the Supremes will hold the State to even industry standards when they fail to hold the crimes labs accountable. Just think how many attorneys have urged a client to plead to a cannabis charge when the only tests done, if any, are non specific and that do not prove to a reasonable degree of scientific certainty that the plant material seized is in fact cannabis at all. The lab, in the interest of time and money, normaly use the D/L test, ruled unreliable and non specific by the NC Supremes in the Tate decision long ago, along with a supposed observation of ” cyctolithic hairs ” on the sample, which is a feature present in many species other than cannabis. How many defendants can afford expert witnesses that can and will expose the lack of true science used in cannabis identification. Dr. Frederic Whitehurst, former chief of the FBI lab in DC and a renowned scientist who also comprehends botany fuly, a trait virtually unknown at the state lab level. There are so many millions of plant species, many unstudied and some stil unknown, that no officer or layman could possibly identify cannabis by appearance alone. All they can reliably say is that it appears similar to materials previously used to press charges, not that it is in fact an exact species. If defense attorneys would study this issue, and there is a wealth of material on the web, it might give defendants a way to at least seek a more favorable deal or at best get charges dismissed or a favorable verdict.

  3. Unfortunately I think that this means that we have to get our own experts. An expensive and time intensive proposition.

    Because of that statute, the Courts are going to allow admissibility, no matter how voodoo the test is or how incorrectly it is administered, because the Officer will always testify that the test is valid and administered properly. Thus, the only way to get accurate information to the jury about the error rate of the test and the errors in administration of it is to have your own witness testify. At this point, I think we need to start training ourselves and judges on where to get HGN experts witnesses and the proper procedures for having the State pay for them, since there is no way that the vast majority of the population could afford such an expense.

    In a similar vein, it is high time we get accurate independent information about the accuracy variability and error rate of the ECIR-II.

  4. Judge Inman, Judge Bryant and Judge Stroud have no background in science. They bought into the voodoo junk science band wagon called HGN. The opinion shows they have no understanding of science. Shea Denning is on this same band wagon. They are all riding this band wagon to the land of OZ , a wonderful land where we convict people based on whatever we want-forget the laws of science, forget accuracy, and forget reliability. Here in OZ we make up our own science and teach people how to use it for one purpose and one purpose only to convict people. Who cares that we use it to convict innocent people. The land of OZ is great; okay so we had problems with bite marks, ballistics ID, fiber id, blood splatter (that is what i call it) and numerous other false scientific beliefs because what the hell is science, its noting in OZ because we believe in magic. I posted this; so 100 years from now when a law student is reviewing this blog and laughing; stating to his friends “can you believe the people of this time were so dumb they thought you could shine a light in someones eyes and tell they were impaired” and “i think these were the same people who thought the world was flat”; at least the law student will not be laughing at me, Rich or Peter. Watch all the people who respond to this who think the world is flat. LOL

    • Mr. Jones: if you would read Shea’s previous posts on HGN and Rule 702 you would see that she also wrote extensively about the issue of whether 702 (a1) was impacted by the 2011 amendment before Godwin and Yount. She discussed the question with which district court judges were struggling: did the amendment mean that HGN reliability was a point of proof for the State when an officer is presented as an expert? She presented the issue, and your characterization of her bias is unfair. The SOG presents the law. They do not argue a position.

      Additionally, the HGN test is not performed by shining a light in someone’s eyes. Nor is it voodoo. And for posterity, the world is round.

  5. I have two comments, one as an attorney and the other as a scientist. The Court of Appeals appears to be saying that HGN is reliable, because the General Assembly says so. If this interpretation is correct, judges have been deprived of their gatekeeping role per Daubert. Is there a constitutional issue here? Perhaps separation of powers? Of course, a practical effect is the shifting of the burden of proof to defendants.

    As a scientist who has studied HGN forensics, I can offer the following. No relevant scientific organization has accepted HGN for forensic use. (The American Optometric Association’s mere endorsement hardly qualifies.) National Highway Traffic Safety Administration (“NHTSA”) contractors in their non-peer-reviewed reports claim validation as well as accuracy, which they define in a non-conventional manner that misleads laypersons – including law enforcement, lawyers, and judges. Scientists with the National Research Council would disagree with the contractors’ claims. See the National Research Council’s 2009 report, “Strengthening Forensic Science in the United States” (available online) pages 113-122 (explaining what constitutes scientific validation and how accuracy is properly assessed for a test such as HGN).

    None of NHTSA’s reports on HGN has been peer-reviewed – nor is peer-review even possible. None of the reports provides data allowing peer-review. (By the way, NHTSA is not a scientific organization. It explicitly supports prosecutors.)

    Some might claim that the paper by Citek et al. (Optometry, 74, 695-710 (2003)) supports HGN. Whether it does cannot be determined. The authors did not report enough data to allow review. In addition, the paper does not appear to have been peer-reviewed.

    As for data, I’ve analyzed the only raw data on HGN that have been made available to the public. (These data are from NHTSA’s San Diego study. They were acquired pursuant to a FOIA request. See Hlastala et al., J. Forensic Sci., 50, 1-8 (2005).) Analysis shows that, if a law enforcement officer gets 6 out of 6 clues, it is 99% certain that the defendant’s alcohol concentration is in the range from 0.00 to 0.29 grams per 210 liters. (You read correctly; the range is that broad.) Analysis also shows that the correlation between HGN score and alcohol concentration is too small to support forensic applications. (Graphically, the relation between HGN and alcohol concentration takes the form of what scientists refer to as a “shotgun pattern.”) Finally, analysis shows that, if a person is arrested with an alcohol concentration less than 0.08, there is about a 40% chance that HGN will indicate impairment. Getting close to flipping a coin.

    Scientific bottom line: Forensically speaking, HGN is Hyped Gross Nonsense in the eye of the beholder.

  6. This reads like an article from The Onion. After years of chipping away at this test, the CoA has now decided that proving HGN’s reliability is too high a burden for the State. How did we shift into being a Daubert state and, just a few years later, not require proof of reliability before an “expert” gives their opinion to a jury?

    This is mind boggling. Per this holding, it was actually easier to challenge HGN BEFORE McGrady made NC a Daubert state. Anyone who celebrates this decision is admitting a ridiculous premise, that science doesn’t benefit from peer review, publication, or creating industry/field standards. These are the bare necessities of scientific reliability.

    I will continue to argue against allowing HGN testimony in every one of my DWI cases. To sit back and allow the state to present evidence that isn’t scientifically valid or reliable would be close to malpractice.

  7. Guy – That is a remarkably well written and well researched post, and one that our Judges need to read. I feel like all of this Daubert discussion has distracted from issues of separation of powers as well as denial of due process. One wonders if there is a Federal due process violation when the legislature declares something that is not reliable science to be reliable science. Regardless, at the trial level right now I am stuck reminding judges that just because evidence is admissible doesn’t mean that it is persuasive. Your post will help me do that I think.

    Jesse – You owe Ms. Denning an apology and you know it. This blog doesn’t need another troll.


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.