In State v. Baity, the Washington Supreme Court found the basis for HGN testing, that intoxicated people will exhibit nystagmus, to be generally accepted under Frye. Baity also addressed the admissibility of the 12-step DRE examination, of which HGN was one step, employed by police officers to detect behavior associated with certain drugs and held that it constituted novel scientific evidence. The Court also placed clear limitations on officer testimony based upon this scientific testing.
Michael Baity and Edward Arnestad were each charged in separate prosecutions for driving under the influence of alcohol or drugs (DUI). In November 1997, Edward Arnestad was arrested after he rear-ended another vehicle that had been stopped at a traffic light. Arnestad had slurred speech, watery eyes and smelled like alcohol. He subsequently failed the voluntary field sobriety tests and was cited for DUI. Two months later, in January 1998, Michael Baity was arrested and cited for DUI and driving with a suspended license, after a officer observed him speeding and weaving between lanes. At the scene, Baity smelled of alcohol. He admitted to marijuana use. A DRE was called to the scene and observed that Baity’s tongue was green in color and his eyes were somewhat dilated, and that he did not demonstrate nystagmus. In 1998, both defendants appeared separately for trial and both moved to suppress the results of the drug impairment evaluation process. The Trial Court judge ruled in both cases that the DRE program did not meet the Frye standard for admissibility and excluded testimony as to the defendant’s alleged intoxication.
The Washington Supreme Court held that the HGN test satisfied Frye when used for drug detection and was admissible as evidence that a person was intoxicated on drugs. And that,“[a] properly qualified expert may use the 12 step protocol and the chart of categories of drugs to relate an opinion about the presence or absence of certain categories of drugs in a suspect’s system.” However, the court placed limits on that testimony because “the HGN test merely shows physical signs consistent with ingestion of intoxicants.” The court considered 4-days of testimony on the DRE protocol and testimony from the State Toxicologist that, absent extremely high levels, one cannot quantify the impairment from drugs. In the published opinion, Baity specifically cautioned that it does not permit prediction of a specific level of drugs (i.e., quantification) present in a suspect, and the court stated that an officer may not testify in a manner that casts an “aura of scientific certainty to the testimony.”
While courts have undertaken a thorough assessment of HGN evidence in the relevant scientific community and concluded that HGN is generally accepted to be a factor in establishing alcohol impairment, these cases did not go so far as to permit testimony couched in terms of certainty that HGN establishes that a person is impaired by alcohol. Baity properly restricted HGN testimony to comport with the limitations on this evidence as expressed in the relevant scientific community.
Remember, field sobriety tests are voluntary. If you have been arrested for DUI or are facing other similar charges, please contact Blair & Kim, PLLC today to see how a criminal defense attorney might be able to help you.
State v. Baity, 991 P.2d 1151 (2000)