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09/07/93 STATE MISSOURI v. RICHARD HILL

September 7, 1993

STATE OF MISSOURI, RESPONDENT,
v.
RICHARD HILL, APPELLANT, CITY OF KANSAS CITY, MISSOURI, AMICUS CURIAE.



APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY, MISSOURI. The Honorable Donald Barnes, Judge

Before Spinden, P.j., Fenner and Hanna, JJ.

The opinion of the court was delivered by: Fenner

Appellant, Richard Alan Hill, appeals his convictions after trial by jury of driving while intoxicated and driving while revoked.

I.

In his first point on appeal, appellant argues that the trial court erred by allowing testimony regarding the horizontal gaze nystagmus (HGN) test. Appellant argues specifically that the HGN test does not meet the Frye test for reliability. Appellant further argues that the HGN test was improperly used as a method of determining blood alcohol concentration.

A. HGN

The court in Frye v. United States , 54 App. D.C. 46, 293 F. 1013, 1014 (D.C. Cir. 1923), held that evidence deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community. Missouri has adopted the Frye standard for determining the admissibility of new scientific techniques. Alsbach v. Bader , 700 S.W.2d 823, 828 (Mo. banc 1985). *fn1

In the case at bar, the State presented expert testimony in regard to the HGN test from Dr. Marcelline Burns. Dr. Burns is a Ph.D. in psychology who is Director of the Southern California Research Institute. The Southern California Research Institute is engaged in research having to do with alcohol and drug effects on performance. *fn2

Dr. Burns has studied the effects of alcohol on human behavior. The record reflects that Dr. Burns and her associates have conducted two large-scale studies on behalf of the National Highway and Traffic Safety Administration (NHTSA) to determine the most accurate field sobriety tests available to police officers and to standardize the procedures for these tests. Dr. Burns testified that the studies determined the three best field sobriety tests to be HGN, walk and turn, and one leg stand. Dr. Burns has continued to do research and training across the country on the use of the HGN test. She has also testified extensively on the use of the HGN test.

Nystagmus is an involuntary jerking of the eyes. Under the HGN test, an individual's eye movements are tested as a means of determining whether they are under the influence of alcohol. A suspect is required to follow an object such as a finger or pen with his eyes as the object is moved laterally along a horizontal plane to the periphery of the suspect's vision. Dr. Burns testified that there are three separate indicators that an officer looks for under the HGN test. First, an officer observes how smoothly a suspect follows the object as it is moved to the periphery of the suspect's vision. Jerking of the eyes rather than the ability to follow the object smoothly indicates the influence of alcohol. Second, an officer observes whether or not a distinctive jerking occurs in the eyes at the maximum point of deviation when the eye moves to the far periphery of vision. Distinctive jerking is indicative of the influence of alcohol. Third, an officer observes the angle at which nystagmus occurs. Nystagmus occurring at or before the eye is looking at a 45-degree angle is indicative of the influence of alcohol.

A standard scoring system gives one point for eye movement indicative of alcohol influence for each of the three tests for each eye. The highest possible score is six points. A score of four or more points is an indication that a suspect is intoxicated. Dr. Burns testified that at least eight hours of training on the use of the HGN test is recommended. She further testified that law enforcement in all 50 states use the HGN test and that it is generally accepted in the behavioral science community as a reliable basis to determine whether or not an individual suspect is intoxicated. Dr. Burns was aware of no scientific research inconsistent with her research and results.

The State established that the HGN test has achieved general acceptance within the behavioral science community. We find that when properly administered by adequately trained personnel, the HGN test is admissible as evidence of intoxication.

As established herein, adequate training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test. Proper administration of the HGN test requires (1) that the test be conducted by requiring a suspect to follow an object such as a finger, pencil or pen with his eyes as the object is moved laterally along a horizontal plane to the periphery of the suspect's vision, and (2) that the indicators be interpreted and scored, one eye at a time, as follows: (a) the person administering the test is to observe how smoothly a suspect follows the object as it is moved to the periphery of the suspect's vision. Jerking of the eyes rather than the ability to follow the object smoothly indicates the influence of alcohol; (b) the person administering the test is to observe whether or not a distinctive jerking occurs in the eyes at the maximum point of deviation when the eye moves to the far periphery of vision. Distinictive jerking is indicative of the influence of alcohol; and (c) the person administering the test is to observe the angle at which nystagmus occurs. Nystagmus occurring at or before the eye is looking at a 45-degree angle is indicative of the influence of alcohol.

One point is scored for eye movement indicative of alcohol influence for each of the three tests for each eye. The highest possible score is six points, with a score of four or more points constituting ...


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