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BALLARD v. STATE4/3/1998
te played a videotape produced by the NHTSA that demonstrated the proper administration of the test, and the State offered the testimony of Trooper Schoenberg, an HGN test instructor, who demonstrated the test in the courtroom and explained how the test results are scored. Trooper Oly, the officer who arrested Ballard, then testified regarding how he had been trained to administer and assess the HGN test, and he too demonstrated the three portions of the test on a volunteer in the courtroom.
As noted above, Ballard presented only one criticism of Oly's in-court demonstration of the test: Oly had performed all three portions of the test on one eye before moving to the other eye, while the NHTSA recommends alternating eyes. However, Ballard gave the court no reason to believe that this variation could be expected to make any difference in the test results. On this record, Judge Finn could properly conclude that Trooper Oly had received adequate training in the administration of the HGN test and that Oly was therefore qualified to testify about the results of Ballard's HGN test.
We recognize that Ballard potentially had another foundational attack on the State's HGN evidence. Ballard could argue that Trooper Oly failed to substantially comply with proper testing procedures when he administered the test to Ballard. Compare Williams v. State, 884 P.2d 167, 174 (Alaska App. 1994) (holding that "substantial compliance" with Intoximeter procedures is required to establish the foundation for admitting breath test evidence).
Most of the courts cited above treat this issue as affecting the weight of HGN evidence rather than its admissibility. They recognize that a poorly administered HGN test may yield results that are not particularly probative, but they note that the same is true of the other field sobriety tests.
On appeal, Ballard argues that proper testing procedure is a foundational matter — something that the State must prove before HGN evidence can be admitted. Quoting People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 667, 882 P.2d 321, 325 (1994), he argues that the proponent of scientific evidence "must demonstrate that correct scientific procedures were used in the particular case". Ballard then faults Judge Finn for failing to decide whether Oly properly administered the HGN test to him.
Even assuming that a substantial variance from accepted testing norms could render HGN evidence inadmissible, Ballard presented no evidence of such a substantial variance at the pre-trial hearing. It must be remembered
that the primary purpose of that pretrial hearing was to determine whether HGN evidence met the Frye standard for admissibility. Even if Judge Finn ruled that HGN satisfied the Frye test, Ballard would still have another opportunity (at his trial) to attack the particular procedures that the trooper employed when administering the test to him.
This is seemingly the reason why the evidence presented at the pre-trial hearing centered on the scientific basis for the HGN test and the approved methods for administering the test, and not on the particular procedures Oly employed when administering the test to Ballard. Ballard's attorney did cross-examine Oly to a limited extent about the trooper's administration of the HGN test to Ballard (the procedures he used and the observations he made), but this cross-examination occupies only 7 pages of transcript out of a total of 420 pages.
As Judge Finn later noted in her written decision, " here was some discussion during the hearings . . . about whether the HGN test was administered accurately to [Ballard]." However, given the evidence before her, Judge Finn could justifiably
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