County Criminal Court:  CRIMINAL LAW – Field Sobriety Test -&- CRIMINAL PROCEDURE – Jurors.  In a case involving a charge of DUI, the horizontal gaze nystagmus (HGN) test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Florida Statute § 316.1934, and may not be used to establish a blood alcohol content (BAC) of 0.08 percent or more.  However, HGN test results are admissible independent of chemical tests, they are one piece of evidence that the jury may consider in determining whether the defendant was impaired under Florida Statute § 316.193(1)(a).   HGN test results are admissible in evidence once a proper foundation has been laid that an officer who was properly trained and qualified to administer an HGN test correctly administered the test. The officer does not have to be certified as a Drug Recognition Evaluator.

In jury selection, to the extent hypothetical questions involve the facts of the case they are not allowed.  However, the law is otherwise where the hypothetical does not include the facts of the case.  A hypothetical question making a correct reference to the law of the case to aid in determining the qualifications or acceptability of a prospective juror may be permitted by the trial judge in the exercise of sound judicial discretion.  Judgment and sentence affirmed.  Charles Edward Engelman v. State, No. CRC 08-00051 APANO (Fla. 6th Cir.App.Ct. June 3, 2009). 

 

 

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

 

 

CHARLES EDWARD ENGELMAN

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 08-00051 APANO

                                                                        UCN522007CT119744XXXXXX

                                                                                 522007TR120240XXXXXX

                                                                                       522007CT121110XXXXXX

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Susan P. Bedinghaus

 

Lynda B. Barack, Esquire

Attorney for Appellant

 

Office of the State Attorney

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Charles Edward Engelman’s, appeal from a conviction, after a jury trial, of Driving Under the Influence, a first degree misdemeanor, in violation of § 316.193(1) Fla. Stat. (2006).  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

            On August 10, 2007, while his driver’s license was suspended, Appellant was driving a vehicle that was involved in a rear end collision.  Appellant was placed under arrest for Driving while License Suspended and Open Container.  He was transported to a breath testing facility under suspicion of driving under the influence of alcohol or another substance and refused to submit to testing.  He was arrested for driving under the influence.

            The charge of driving under the influence proceeded to jury trial on July 16, 2008.  In jury selection, the prosecutor had a potential juror read the implied consent conditions printed on her Florida driver’s license.  The prosecutor then asked the panel of prospective jurors if they felt it was important to follow that law and if any of them felt it was a bad law. 

            Shortly thereafter Appellant’s counsel argued a motion in limine asking the court to exclude any testimony concerning the administration and interpretation of the horizontal gaze nystagmus test.  The State proffered testimony of Officer Terri Nagle as to her qualifications to testify concerning those issues.  Officer Nagle had been a police officer for more than six years and was assigned as a hit-and-run investigator.  In addition to general police officer training, she attended the standardized field sobriety testing school which is three days long and the HGN for prosecutors and law enforcement school which is one day.  She had been a DUI officer for three years and is a certified breath test officer.  She had participated in over five-hundred DUI investigations and had been the main officer on approximately three-hundred-fifty of those investigations.  She has performed the HGN test over four-hundred times but was not a Drug Recognition Evaluator.  The court denied the motion in limine.  Officer Nagle testified before the jury concerning her qualifications, her observations and involvement in the investigation and her dealings with the Appellant.  There was no testimony about the Appellant’s actual or specific blood alcohol content or about the accuracy with which HGN test results correlate to any specific blood alcohol content.

Issues

            Appellant presents two issues.  First, whether the trial court erred by allowing a police officer to testify at trial about her administration of the horizontal gaze nystagmus test to Appellant.  Second, whether the trial court erred during jury selection by allowing the prosecutor to have a potential juror read the implied consent language from her driver’s license and then ask the potential jurors if it was important to follow that law or if any of them thought it was a bad law.

Standard of Review

            The issues presented in this appeal are subject to an abuse of discretion standard of review.  Vining v. State, 637 So.2d 921, 926 (Fla.1994); Jent v. State, 408 So.2d 1024, 1029 (Fla. 1981); Rose v. State, 506 So2d 467 (Fla. 1st DCA 1987).

Testimony Concerning “HGN” Testing

            Testing for horizontal gaze nystagmus (HGN) is used by law enforcement to detect signs of impairment in persons suspected of driving under the influence.   Nystagmus is an involuntary jerking of the eyeball that can be aggravated by drugs or alcohol.

In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver's eye level. As the officer moves the object gradually out of the driver's field of vision toward his ear, he watches the driver's eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver's blood alcohol content (BAC) exceeds the legal limit of .10 percent.

 

Williams v. State, 710 So.2d 24, 29 (Fla 3rd DCA 1998); State v. Superior Court In and For Cochise County, 718 P.2d 171, 173 (Ariz. 1986).  In Florida, HGN test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Florida Statute § 316.1934, and may not be used to establish a blood alcohol content (BAC) of 0.08 percent or more.  However, HGN test results are admissible independent of chemical tests, they are one piece of evidence along with others that the jury may consider in determining whether the defendant was impaired under Florida Statute § 316.193(1)(a).  Williams, 710 So.2d at 36.  The Williams Court referenced three cases from other jurisdictions to illustrate the latter point.[1]  In the first of those cases the Supreme Court of Arizona concluded:

(W)here no chemical test of blood, breath, or urine has occurred, the use of HGN evidence is restricted. Evidence derived from the HGN test, in the absence of a chemical analysis, although relevant to show whether a person is under the influence of alcohol, is only relevant in the same manner as are other field sobriety tests and opinions on intoxication. In such a case, HGN test results may be admitted only for the purpose of permitting the officer to testify that, based on his training and experience, the results indicated possible neurological dysfunction, one cause of which could be alcohol ingestion. The proper foundation for such testimony, which the State may lay in the presence of the jury, includes a description of the officer's training, education, and experience in administering the test and a showing that the test was administered properly. The foundation may not include any discussion regarding the accuracy with which HGN test results correlate to, or predict, a BAC of greater or less than .10%.

 

State ex rel. Hamilton v. City Court of City of Mesa, 799 P.2d 855, 859 - 60 (Ariz.1990).  In the second of those cases, the Supreme Court of Ohio stated:

Although not an issue in the instant case, we hasten to add that although results on an HGN test may be admissible at trial by a properly trained officer, such an officer may not testify as to what he or she believes a driver's actual or specific BAC level would be, based solely on the HGN test results. (Cite as: 165 Ariz. 514, *518, 799 P.2d 855, **860)

(Cite as: 165 Ariz. 514, *519, 799 P.2d 855, **860)

 

State v. Bresson, 554 N.E.2d 1330, 1336 (Ohio 1990).  This Court reads the majority decision in Williams as holding, in pertinent part, that HGN testimony is admissible as evidence of impairment whether or not chemical test results have been admitted.  It should be noted that not all the judges in Williams agreed with this principle. Clearly, Judge Cope held a different view.

I concur with the majority that HGN cannot substitute for the statutory alcohol tests. The majority opinion does, however, allow HGN to come in for some purposes. Because HGN-based alcohol calculations are unreliable, I would exclude them entirely, and dissent to the extent that the majority opinion allows such HGN results into evidence.

 

Williams v. State, 710 So.2d at 38.  Thereafter, in another case, Judge Cope, offered the following description of the holding of Williams and a subsequent case:

(T)he case law in this district addresses that problem by holding that there must be a confirmatory blood, breath, or urine test before HGN evidence is admissible.

 

Bowen v. State, 745 So.2d 1108, 1109 (Fla. 3rd DCA 1999).  That description of the majority decision in Williams omitted the remainder of the holding, that HGN testimony is admissible as evidence of impairment whether or not chemical test results have been admitted.  Judge Cope’s dictum in Bowen has created some uncertainty and confusion.  See State v. Brooks, 14 Fla. L. Weekly Supp. 1078a  (Fla. 6th Cir. Ct. July 17, 2007); David A. Demers, 11 Fla. Prac., DUI Handbook, § 7.3, (2008-2009 Edition).  The Bowen case did not expressly reverse or limit Williams which remains binding authority.  The Bowen holding was that HGN test results are admissible into evidence by an officer properly trained and qualified to administer an HGN test, but who is not certified as a Drug Recognition Evaluator.  Bowen, 745 So.2d at 1109.  This Court does not read Bowen as standing for or establishing the proposition that HGN test results are only admissible as proof of impairment if there is a confirmatory blood, breath, or urine test. See Brooks, 14 Fla. L. Weekly Supp. 1078a. 

HGN test results should not be admitted as lay observations of intoxication because HGN testing constitutes scientific evidence. Thus, although the evidence may be relevant, the danger of unfair prejudice, confusion of issues, or misleading the jury requires the exclusion of the HGN test evidence unless the traditional predicates of scientific evidence are satisfied. State v. Meador, 674 So.2d 826, 836 (Fla. 4th DCA 1996).  HGN test results are admissible into evidence once a proper foundation has been laid that the test was correctly administered by an officer properly trained and qualified to administer an HGN test. The officer does not have to be certified as a Drug Recognition Evaluator.  Bowen, 745 So.2d at 1109; Cloyd v. State 943 So.2d 149,165 -166 (Fla. 3rd DCA  2006).

“HGN” Testimony in the Present Case.

HGN test results are admissible into evidence as proof that a person was impaired even where no chemical test of blood, breath, or urine has occurred.  In the present case Officer Nagle was properly trained and qualified to administer such a test and upon the proper foundation being laid, which it was, was appropriate to testify at the trial.  The officer did not testify about the Appellant’s actual or specific blood alcohol content.  There was no testimony concerning the accuracy with which HGN test results correlate to any specific blood alcohol content. Officer Nagle’s testimony addressed her qualifications, her observations and involvement in the investigation and her dealings with the Appellant.  The officer’s trial testimony was admissible.

The Propriety of the Prosecutor’s Voir Dire Questions

            Appellant argues it was error during jury selection for the court to allow the prosecutor to have a potential juror read the implied consent language from her driver’s license and for the prosecutor to then ask the potential jurors if it was important to follow that law or if any of them thought it was a bad law.  Appellant contends these were impermissible “hypothetical questions”.  The primary problem with this argument is that hypothetical questions, “designed to determine whether the jurors could correctly apply the law, are permissible.”  Moore v. State, 939 So.2d 1116, 1118 (Fla. 3rd DCA 2006); See Lavado v. State, 492 So.2d 1322, 1323 (Fla.1986).  Secondly, the prosecutor’s questions were not hypothetical, they contained no factual assumptions. 

            In jury selection, to the extent hypothetical questions involve the facts of the case they are not allowed.  Blevins v. State, 766 So.2d 401, 402 (Fla. 2nd DCA 2000).  It is error to include in a hypothetical question the very facts of the case against the accused to obtain at least a tacit commitment of the prospective juror to convict.  Minor v. State, 763 So.2d 1169, 1171 (Fla. 4th DCA 2000).  However, the law is otherwise where the hypothetical does not include the facts of the case. Blevins, 766 So.2d  at 402.  A hypothetical question making a correct reference to the law of the case to aid in determining the qualifications or acceptability of a prospective juror may be permitted by the trial judge in the exercise of sound judicial discretion.  Pait v. State, 112 So.2d 380, 383 (Fla.1959).

            In the present case, the prosecutor’s questions were designed to determine the prospective jurors’ attitudes about a relevant legal issue.  The questions were not misleading or confusing, and did not call for prejudgment of the case on the facts.  The questions were permissible in the discretion of the trial judge.

Conclusion

            This Court finds no error by the trial court. The judgment and sentence of the trial court were lawfully entered and should be affirmed.

IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.

            ORDERED at Clearwater, Florida this ____ day of June, 2009.

 

 

Original opinion entered by Circuit Judges Michael F. Andrews, Raymond O. Gross, & R. Timothy Peters.  

 

 

 

 

           

cc:        Honorable Susan P. Bedinghaus

            Office of the State Attorney

            Lynda B. Barack, Esquire                                                                                          


[1] State ex rel. Hamilton v. City Court of City of Mesa, 799 P.2d 855, 857 (Ariz. 1990); State v. Bresson, 554 N.E.2d 1330, 1336 (Ohio 1990); State v. Webber, 1998 WL 15892 (Ohio Ct.App. 1998).