County Criminal Court: CRIMINAL LAW – Field Sobriety Test – HGN (horizontal gaze nystagmus test) admissible to prove impairment without corroborating blood, breath, or urine test. However, police must first introduce evidence of test conductor’s qualifications. In this case, there was such testimony. Order suppressing evidence reversed. State v. Brooks, No. CRC 05-67 APANO, (Fla. 6th Cir.App. Ct. July 17, 2007).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 05-67APANO

UCN522005AP00067XXXXCR

GREGORY JAMES BROOKS

 

            Appellee.

_____________________________________/

 

Opinion filed ______________________.

 

Appeal from a decision of the Pinellas County Court

County Judge Thomas Freeman

 

Noelle Caserta, Esq.

Assistant State Attorney

 

Jane McNeill, Esq.

Assistant Public Defender

 

 

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the State’s appeal from an order denying its motion in limine. The effect of the order is to deny the State’s request to introduce certain evidence. Since it is essentially an order suppressing evidence, this Court has jurisdiction to review it. See Fla.R. App.P. 9.140(c). Moreover, pursuant to §924.07(1)(l), Fla. Stat. (2006), a circuit court has jurisdiction to hear an appeal from a non-final order “suppressing evidence or evidence in limine.” After reviewing the briefs and record, this Court reverses the decision of the trial court.

            The defendant was stopped for failing to yield the right of way. The deputy who stopped the defendant noticed signs of impairment, so he conducted field sobriety exercises --- including the Horizontal Gaze Nystagmus (“HGN”). The defendant was subsequently arrested for DUI. He refused to take a breath test. The State wanted to introduce the information it obtained during the HGN test, but the trial court refused to allow it to be admitted. The State is seeking review of that decision.

            There are two issues in this case. First, are the results of HGN tests admissible in DUI cases under any circumstances as evidence of impairment in the absence of a corroborating blood, breath, or urine test? [1] Second, did the deputy in this case have sufficient background and experience to testify about the results of the HGN test?

            As to the first issue, it is clear that the HGN test results are admissible in a DUI case as evidence of impairment. In State v. Meadors, 674 So.2d 826, 835 (Fla. 4th DCA), review denied, 686 So.2d 580 (Fla. 1996), the court held that HGN test results are admissible upon a showing of the traditional predicate. That means the State must show reliability, the qualifications of the person conducting the test, and the meaning of the results. Id. at 835. Subsequently, in Williams v. State, 710 So.2d 24 (Fla. 3d DCA), review denied, 725 So.2d 1111 (Fla. 1998), the court squarely held that “HGN test results … are admissible into evidence once a proper foundation has been laid that the test was correctly administered by a qualified DRE.” Id. at 32.  In Bowen v. State, 745 So.2d 1108 (Fla. 3d DCA 1994), the court goes one step further and holds that HGN test results can be introduced through any properly trained and qualified officer who correctly administered the test; not just a drug recognition expert (“DRE”). These cases leave no doubt that HGN test results are admissible in evidence in a DUI case on the element of impairment.

            Unfortunately, the discussion on the first issue does not stop there because of some unexpected language in Bowen. That court said: “while the defendant expresses concerns about the reliability of the HGN test at roadside, the case law in this district addressed that problem by holding that there must be a confirmatory blood, breath, or urine test before HGN is admissible.” Id. at 1109. Based upon this language, at least one circuit court acting in its appellate capacity ruled that “[t]here must be a confirmatory, blood, breath, or urine test before HGN is admissible.” Cropper v. State, 7 Fla. L. Weekly Supp. 323 (Fla. 11th Cir.Ct. Feb. 29, 2999). This interpretation of Bowen is not controlling in the Sixth Circuit, and this Court respectfully disagrees.

            We hold that Bowen does not stand for the proposition that HGN test results are only admissible as proof of impairment if there is a confirmatory blood, breath, or urine test. We reach that conclusion for several reasons. First, Bowen relies upon Williams, and there is absolutely no doubt that Williams does not require a confirmatory blood, breath, or urine test. Second, Bowen does not distinguish between situations where the State is attempting to use HGN test results to establish a specific blood alcohol level and situations where the State is attempting to use HGN test results as one piece of evidence to prove impairment. While we need not, and specifically decline to decide this question, it would be understandable to require a corroborating blood, breath, or urine test where the State seeks to infer a specific blood alcohol level from HGN test results. However, such a requirement is much more difficult to understand in a case such as the one at bar, where the State seeks to rely on HGN test results solely as proof of impairment.

            Most importantly, the third and final reason for rejecting the suggestion that Bowen requires a confirming blood, breath, or urine test is that the language in the opinion was dicta. The sole issue in Bowen was whether HGN test results were admissible where the State shows that the test was correctly administered by a properly trained and qualified officer who is not certified as a DRE. The reference to a confirmatory blood, breath, or urine test was a purely gratuitous comment which had nothing to do with the issue before the court. Indeed numerous trial courts have reached that conclusion. See State v. Clements, 9 Fla. L. Weekly Supp. 282 (Fla. Manatee Cty. Ct. March 22, 2002); State v. Morales, 9 Fla. L. Weekly Supp. 57 (Fla. Dade Cty. Ct. Oct. 24, 2001); State v. Suarez, 8 Fla. L. Weekly Supp. 790 (Fla. Dade Cty. Ct. Aug. 5, 2001); State v. Allen, 7 Fla. L. Weekly Supp. 626 (Fla. Monroe Cty. Ct. June 27, 2000).

            Clearly, HGN test results are admissible in evidence through properly trained and qualified witnesses to prove impairment in a DUI case. Bowen firmly supports this conclusion.

            The second issue in the case at bar is whether or not the deputy had sufficient background and experience to testify about the results of the HGN test. The determination of whether or not a witness is qualified to give testimony is a discretionary decision for the trial judge to make. See Rose v. State, 506 So.2d 467 (Fla. 1st DCA 1987). However, in the case at bar, this Court cannot discern from the record if the trial judge decided the witness was unqualified. Such a decision would not be supported by the record.

            The evidence overwhelmingly establishes the qualifications of the deputy to administer the HGN test and interpret its results. The deputy had been working for the Pinellas County Sheriff for four years and had previously worked for the Clearwater Police Department for three and one–half years. He was assigned to the DUI enforcement unit known as the STEP unit and had conducted over 500 DUI investigations. The deputy had extensive training, which included eight to sixteen hours on DUI detection and twenty-four hours on standardized field sobriety testing. In addition, the deputy had been an intoxilyzer operator for almost six years and a certified drug recognition expert for approximately two years. He was also a field sobriety instructor. He participated in symposiums and had schooling on drug recognition and HGN testing for eighty hours. Twenty-four of those hours were taught by an optometrist. He also took an updated field sobriety training course, eight hours of which were taught by medical doctors. To become a certified DRE, the deputy had to pass a seven to eight hour test. The deputy had performed the HGN test over 500 times and had previously testified in this jurisdiction about the HGN test.  There is no doubt that the foregoing training and experience qualified this deputy to administer the HGN test and to testify about the results. He was qualified to lay the necessary foundation required by Williams and Bowen. There may be cases where the witness the State relies upon to establish the foundation for the introduction of the HGN test results is not qualified. But this is certainly not such a case.

            In summary, this Court finds that HGN test results are admissible into evidence to prove impairment in a DUI case through a properly trained and qualified witness who administered the tests. And a corroborating blood, breath, or urine test is not required in such cases. In addition, this Court finds that the deputy in the case at bar was a properly trained and qualified witness. Thus, the trial court erred in excluding the HGN test results as evidence of impairment.

IT IS THEREFORE ORDERED that the decision of the trial court is reversed, and this matter is remanded to the trial court for further action consistent with this Order and Opinion.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of July, 2007.

 

                                                                                                _______________________

                                                                                                            David A. Demers

                                                                                                            Circuit Judge

 

 

 

 

                                                                                                _______________________

                                                                                                            Robert J. Morris, Jr.

                                                                                                            Circuit Judge

 

 

 

 

                                                                                                _______________________

                                                                                                            Irene H. Sullivan

                                                                                                            Circuit Judge

 

cc:        Public Defender

 

            State Attorney

 

            Judge Freeman

 

 

 

 



[1] This case does not involve the admissibility of the results of HGN tests as evidence of blood alcohol levels and this Court does not reach that issue.