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BALLARD v. STATE4/3/1998
This appeal requires us to decide whether the horizontal gaze nystagmus test, or "HGN" test, satisfies the standard for admissibility of scientific evidence established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and reaffirmed as the governing standard in Alaska in Contreras v. State, 718 P.2d 129, 134-36 (Alaska 1986).
In the HGN test, the subject is asked to cover one eye and then use the remaining eye to track the lateral progress of an object (usually a pen) as the officer moves the object at eye-level across the subject's field of vision. As the moving object travels toward the outside of the subject's vision, the officer watches the subject's eye for "nystagmus" — an involuntary jerking movement of the eyeball. If the person's eyeball exhibits nystagmus, and especially if the nystagmus occurs before the moving object has traveled 45 degrees from the center of the person's vision, this is taken as an indication that the person is intoxicated. See the description of the HGN test contained in State v. Grier, 791 P.2d 627, 629 (Alaska App. 1990).
As we explain in more detail below, we conclude that the horizontal gaze nystagmus test is premised on generally accepted scientific theory. Although there is genuine dispute as to whether a person's precise level of intoxication or precise blood-alcohol level can be ascertained by his or her performance on the HGN test, there is no dispute that alcohol consumption causes observable nystagmus. We conclude that, if a person demonstrates nystagmus during the HGN test, this is a reasonable indication that the person may have consumed alcohol and is potentially intoxicated. Therefore, with certain qualifications explained below, we hold that evidence of a person's performance on the HGN test is admissible under the Frye-Contreras rule.
How This Case Arose
In the early morning of March 1, 1994, Alaska State Trooper Lee Robert Oly was patrolling the Glenn Highway, accompanied by his supervisor, Trooper Oscar Siegfried. Oly observed an oncoming Toyota pull off to the other side of the highway. Intending to check on the welfare of the Toyota's driver, Oly turned his patrol car around and pulled up behind the stopped Toyota. Ballard, who was driving the Toyota, got out of his vehicle. Ballard had to steady himself against the Toyota, and he staggered as he walked toward Oly. When Ballard stopped walking, he continued to have difficulty maintaining his balance; he swayed from side to side. Oly smelled the odor of alcoholic beverages on Ballard's breath, and he saw that Ballard appeared to have difficulty focusing his eyes (which were bloodshot). Based on these observations, Oly decided to administer field sobriety tests to Ballard.
Ballard performed several field sobriety tests; one of these was the horizontal gaze nystagmus test. After Ballard failed all of the field sobriety tests, Oly arrested him and charged him with driving while intoxicated.
Ballard's Pre-Trial Objection to the HGN Evidence and the Testimony Presented at the Frye Hearing
Before trial, Ballard asked the district court to exclude all evidence of his performance on the HGN test, contending that the HGN test did not meet the Frye standard for admissibility. District Court Judge Natalie K. Finn conducted an extensive hearing into the scientific foundations of the HGN test, as well as its reliability and validity.
At this hearing, the State presented an instructional videotape produced by the National Highway Transportation Safety Administration (NHTSA), demonstrating its recommended procedure for administering a three-part HGN test. The State also called Trooper Tim Schoenberg, who dem
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