Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF MCDONALD COUNTY Honorable Timothy
W. Perigo, Circuit Judge
JEFFREY W. BATES, J.
Tice (Defendant) was charged as an aggravated offender with
the class C felony of driving while intoxicated (DWI).
See §§ 577.010, 577.023. A jury found
Defendant guilty as charged, and the trial court imposed a
presents two points, the first of which is dispositive. He
contends the trial court abused its discretion in admitting
the arresting officer's testimony about the results of an
"improperly administered HGN test" because "an
adequate foundation was not established[.]" We disagree
consider the facts and all reasonable inferences derived
therefrom in a light most favorable to the verdict, and we
reject all contrary evidence and inferences." State
v. Campbell, 122 S.W.3d 736, 737 (Mo. App. 2004);
see State v. Johns, 34 S.W.3d 93, 103 (Mo. banc
2000). Viewed from that perspective, the following facts were
before the trial court.
around 1:15 a.m. on August 16, 2015, Neosho Police Officer
William Ray Cliffman (Officer Cliffman) was patrolling when a
Ford Ranger drove by, traveling 55 miles per hour in a
location where the speed limit was 45 miles per hour. Officer
Cliffman turned around and pulled over the truck. The truck
pulled over into a Taco Bell parking lot, blocking traffic
from passing. Because the truck was blocking traffic, Officer
Cliffman told the driver of the truck to move to the other
side of the business. Both the truck driver and Officer
Cliffman parked their vehicles in a gravel lot on the other
side of the Taco Bell.
Cliffman approached the truck and learned that the driver was
Defendant. The officer noticed that Defendant's speech
was slurred, and when he tried to get out of the vehicle, he
almost fell and had to catch himself by grabbing the door.
Officer Cliffman also noticed that Defendant's eyes were
bloodshot and watery. The officer asked Defendant where he
had been, and Defendant told him "Buck's
Place." Officer Cliffman knew that establishment was a
bar outside of Neosho. Officer Cliffman asked Defendant
whether he had anything to drink. Defendant said he had been
drinking, but he did not know how much he had. The officer
asked Defendant to perform field sobriety tests, and
Defendant agreed. Officer Cliffman then administered two
field sobriety tests.
first test was the horizontal gaze nystagmus (HGN), which is
a test to show "nystagmus, " i.e., involuntary
twitching of the eyes while following a stimulus, indicating
possible intoxication. There are six indicators or
"clues" that are measured when performing this
test. A score of four or more clues on the HGN test indicates
possible intoxication. Defendant exhibited five of the six
clues during the HGN test.
Officer Cliffman believed that Defendant was intoxicated
after performing the HGN test, the officer also administered
a second field sobriety test, the walk-and-turn test. There
are eight possible clues in the walk-and-turn test. Out of
the eight clues, Defendant exhibited six for the following
actions: failing to maintain heel-to-toe stance; stopping
while walking to steady himself; not touching heel-to-toe;
losing balance while walking; using arms for balance; and
taking an incorrect number of steps. Exhibiting six clues
indicates possible intoxication. Because Defendant could not
complete the walk-and-turn test, Officer Cliffman declined to
give Defendant the one-leg-stand test. The officer was
concerned that Defendant would fall and hurt himself.
Cliffman then placed Defendant under arrest and transported
him to the jail. During this transport, the officer smelled
the odor of alcohol emanating from Defendant's body.
Defendant was eventually charged with DWI.
filed a "Motion to Suppress Evidence of Standard Field
Sobriety Tests."Relying on State v. Browning, 458
S.W.3d 418, 424-30 (Mo. App. 2015), defense counsel argued
that the results of the HGN test were inadmissible because
Officer Cliffman failed to follow the National Highway
Traffic Safety Administration (NHTSA) manual while
administering the HGN test.
court held an evidentiary hearing on the motion and received
testimony from Officer Cliffman. He attended an eight-hour
course in 2013 or 2014, at which he received specialized
training in DWI detection. When he administered an HGN test,
he used a card he called his "cheat sheet" to help
him perform it correctly. He always followed all of the
directions on the card. While administering the HGN test to
Defendant, Officer Cliffman checked for the following in each
eye: (1) equal tracking, pupil size, and resting nystagmus;
(2) lack of smooth pursuit; (3) distinct and sustained
nystagmus at maximum deviation; (4) angle of onset; and (5)
vertical nystagmus. When checking for nystagmus, the officer
positions the stimulus 12 to 15 inches away from the face,
just above the eyes. When checking for lack of smooth
pursuit, he "might do it a couple times, " but he
couldn't remember whether or not he checked two different
times on Defendant. Similarly, when checking for distinct and
sustained nystagmus, and angle of onset, Officer Cliffman
checked for each at least once.
trial court sustained Defendant's motion to suppress
testimony about the HGN test results for the following
The court has before it the Browning case, where Judge Witt
[in the concurring opinion] spells out the steps from the
[NHTSA] manual. It says this is to be - step 6 says this is
to be repeated for each eye and compared. Step 7, the officer
is to check each eye at least twice for this ...