Opinion
06060051.
Decided November 30, 2006.
Faye Vitagliano, Assistant District Attorney.
Thomas A. Corletta, Attorney for Defendant.
On June 4, 2006 at 9:43 P.M. the defendant was stopped on Bay Road in the Town of Webster by Officer David Herrle of the Webster Police Department, for allegedly going 55 miles per hour in a 35 mile an hour zone.Upon an initial inquiry by the officer, the defendant stated that he was headed home after a friend's fiftieth birthday party and that he had consumed two to three beers at the Beale Street Pub. Upon observing various indicia of intoxication, Officer Herrle asked the defendant to perform certain standardized roadside tests. One of those tests was the horizontal gaze nystagmus (HGN) test. Based on these tests the defendant was placed under arrest and transported to the Webster Police Department. The defendant was eventually issued appearance tickets for Speeding, VTL 1180(d), Per se Driving While Intoxicated, VTL 1192(2) and Common Law Driving While Intoxicated VTL 1192(3).
Defense counsel filed motions that were set down for argument on September 9, 2006. As a result of said motions, Probable Cause and Huntley Hearings were conducted on October 27, 2006.After reviewing the evidence presented at said hearings, the court found that there was reasonable cause, as defined by C.P.L. 70.10(2), to stop the defendant and arrest him for the offenses in question. The court denied defense counsel's motion to suppress the statements made by the defendant to the arresting officer.
Upon completion of the hearing, the case was set down for a bench trial on January 12, 2007 at 9:00 A.M. However, the court reserved on defense counsel's motion in limine to exclude the use of the horizontal gaze nystagmus (HGN) test at trial. The basis for said motion was that a Frye Hearing has not been held in accordance with the case of Frye v. United States, (1923) 293 F. 1013.
Based on the totality of the evidence submitted, the exclusion of the HGN test at the Probable Cause Hearing would not have changed the result.
Issues Presented
Has the scientific reliability of the HGN test been established? Can the HGN test be admitted at trial without a Frye Hearing having first been conducted?
Legal Analysis
A. Scientific Reliability. This court previously ruled in People v. Lansdowne (2004) 800 NYS2d 353, 2004 {6 Misc 3d 1002(A)} W.L. 3029871 (NY Just. Ct.), 2004 NY Slip Op. 51703(U) that the results of the Horizotal Gaze Nystagmus test (HGN test) was not admissible unless the scientific reliability of the test had been established at a prior Frye Hearing.That ruling was based on established case law that continues to be valid as of the date of this decision.
"The appellate courts of this state have made clear both (a) that the courts of our state have not conclusively determined that HGN is generally accepted as reliable' People v. Heidelmark, 214 AD2d 767, 769, 624 NYS2d 656, 658
(3rd Dep't 1995), and (b) that a trial Court commits error in allowing testimony concerning the HGN field sobriety test without a proper foundation as to its
scientific acceptance or reliability.' 214 AD2d at 769, 624 NYS2d at 658. See also People v. Erickson, 156 AD2d 760, 762-63, 549 NYS2d 182, 184 (3rd Dep't 1989). Handling the DWI Case in New York, (2006-2007 Edition) at Pages 143-144.
It should be noted that the Appellate Division, Third Department, indicated that the issue of the general acceptance of the HGN's reliability was an accepted fact. The court stated in support of the idea that a Frye hearing is not required that
". . . subsequent decisions predating the trial in this case in which Frye hearings were held have determined that HGN tests are generally accepted with the scientific community as reliable indicator of intoxication (see People v. Vanderlofske, 186 Misc 2d 182, 717 N.Y.S2d 450; People v. Prue, 2001 NY Slip Op. 40594[U], 2001 WL 1729710 [and cases cited therein])." Thus, if defendant had raised the issue at trial, County Court could have declined to hold a Frye hearing and take judicial notice of the reliability of the HGN procedure and could have, instead, conducted only a foundational inquiry into whether the accepted techniques were actually employed in this case and the tester's qualifications. . . ." People v. Gallup, (2003) 302 AD2d 681, 684, 755 NYS2d 498, 501.
[See also People v. Prue, (3rd Dept. 2004) 8 AD3d 894, 779 NYS2d 271, 2004 NY Slip Op. 05492, where the court merely restates its findings in Gallup.] However, said discussion by the court in the Gallup decision was only dicta and thus not binding on this court. Despite the fact that various lower courts in the Third Department have concluded that the HGN test is reliable, (See for example People v. Prue (2001) WL 1729710 (N.Y.Co.Ct.), 2001 NY Slip Op. 40594(U)) no definitive appellate decision establishing the reliability of the HGN test has been forthcoming. Certainly the Fourth Department of the Appellate Division has not determined that the HGN test is reliable. In addition, the Fourth Department has continued to uphold the standard established by Frye vs. United States, (1923) 293 F. 1013. In People v. Wooten, (4th Dept. 2001) 283 AD2d 931, 932, 725 NYS2d 767, 669-770, 2001 NY Slip Op. 03740, which involved the use of a "lumi-lite" in the investigation by the police of a rape and murder, the court stated in upholding the trial court's denial of the defendant's motion for a Frye hearing, that "In New York a Frye hearing is required only with respect to novel scientific evidence requiring a determination as to its reliability' ( People v. Wesley . . . 611 NYS2d 97, 633 NE2d 451 {83 NY2d 417})." This, of course, begs the question as what constitutes a novel scientific test. Whether the HGN test is a novel test, as defined in New York State law, is an issue that the appellate courts and possibly the legislature need to address.
"Legal principals established by higher courts are binding on lower courts (People v. Hobson, 39 N.Y2d 479, 491). However, statements not necessary for a court's determination of the case, dicta, although carrying considerable weight, is not stare decisis and need not be followed by lower courts. . . ." People v. Morgan, 2001 WL 940234 at page 7 (NY Sup., Kings Co.), 2001 N.Y.Slip Op. 40090(U).
Nevertheless, there is no doubt that the test has scientific validity, depending on how it is used. The National Highway Traffic Safety Administration under the United States Department of Transportation recognizes the use of this standard field sobriety test in its Standard Field Sobriety Testing Student Manual (The "NHTSA MANUAL"). Handling the DWI Case In New York (2006-2007 Edition) at page 139.The problem is that the test does not definitively and exclusively indicate alcohol consumption. In other words, the nystagmus observed in an individuals eyes may be the result of a number other causes. "It has been judicially noted that nystagmus may also indicate a number of neurological problems, the presence of which would affect the accuracy of any HGN-based estimate of blood alcohol content. Nystagmus may be congenital or due to several conditions affecting the brain, such as, in addition to the ingestion of alcohol or barbituates, palsy of lateral or vertical gaze, and disorders of the vestibular apparatus and brainstem and cerebellar dysfunction". 60 ALR4th 1129, 1123.
As quoted in Peter Gertenzang's book Handling the DWI Case in New York (2006-2007) at page 139 the NHTSA Manual ". . . defines nystagmus' as follows: Nystagmus is the involuntary jerking of the eyes, occurring as the eyes gaze toward the side. Also, nystagmus is [a] natural, normal phenomenon. Alcohol and certain other drugs do not cause this phenomenon, they merely exaggerate or magnify it.' [Emphasis added.] The manual is further quoted as follows: Horizontal Gaze Nystagmus occurs as the eyes move to the side. It is the observation of the eyes for horizontal gaze nystagmus that provides the first and most valid test in the standardized field sobriety test battery. Although this type of nystagmus is most accurate for determining alcohol influence, its presence may also indicate use of PCP, certain inhalants and other central nervous system depressants. Supra at 139.
As a result, the HGN test may prove to be more useful in determining "reasonable cause" to arrest (C.P.L. 70.10(2)) an individual for driving while intoxicated. In that vein it would appear no Frye hearing would be necessary if the test was used for that limited purpose, since the Court in a Probable Cause hearing would use the results of the test in the same manner as it would the results of an alcosensor test. "The alcosensor has been held to be sufficiently reliable for use in determining the presence of alcohol and to be a factor, for example, in a determination as to whether a police officer has probable cause to arrest an individual for Driving While Intoxicated" People v. Jones, (NY Co. Ct., 2005) 10 Misc 3d 413, 416, 805 NYS2d 807, 2005 N.Y.Slip Op. 25427. Despite the fact that the alcosensor is based on sound science, "the case law generally is that evidence of an alcosenor test is not admissible at trial". Supra at 416. However, the long standing and extensive use of alcosensors would seem to prohibit such a device as being considered "novel".
B. Use of the HGN test at Trial without a Frye Hearing.As previously indicated, the reliability of the HGN test to conclusively indicate whether or not a defendant's performance of said test is based on that person's consumption of alcohol has not been definitively established by legislation or case law A conviction for driving while intoxicated can have long standing and devastating consequences to one's personal and even professional life. Use of scientific tests should not be used by the trier of fact, whether judge or jury, at trial if there results can be attributed to circumstances other than the issue at hand.Unless and until the HGN test is recognized by the courts and/or legislature as being generally accepted in the scientific community as a reliable indicator of intoxication and that other causes of the nystagmus can be excluded, a Frye hearing, establishing said reliability, would still be required before a trial court could admit testimony concerning the HGN test into evidence. "In New York, after the Supreme Court's opinion in Daubert, [Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 113 S.Ct 2786, 125 L.Ed.2d 469] the stricter general acceptance' test of Frye v. United States, 293 F. 1013 had continued to be applied in cases where the issue was the reliability and admissibility of novel scientific evidence. . . . Where, however, the evidence is not scientific or not novel, the Frye analysis is not applicable." Wahl v. American Honda Motor Co., (NY Sup. 1999) 181 Misc 2d 396, 398, 693 NYS2d 875, 877, 1999 NY Slip Op. 99368.
Conclusion .
The defendant's motion in limine to exclude the Horizontal Gaze Nystagmus (HGN) test at trial is hereby granted, subject to the results of a Frye hearing.This matter is returned to the disposition calender on December 20, 2006 at 1:00 P.M. to determine if the People wish to schedule a Frye hearing prior to the trial in this matter. This constitutes the Decision and Order of the court.