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Schultz v. State8/31/1995
affeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use. See State v. Witte, supra; State v. Clark, supra; State v. Superior Court, supra ; Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney's Textbook of Medicine §§ 84.63 and 84.64 (1990), and other cases and treatises hereinbefore mentioned.
No chemical test was administered to appellant in the case sub judice. Evidence was proffered by appellant as to injuries that may have affected his ability to perform certain of the other field tests, and there was also evidence that the odor of alcohol smelled by Officer Rossiter may have come from a source other than appellant. Accordingly, we are unable to say that the error was harmless.
We reverse appellant's convictions on the charges of driving under the influence of alcohol and driving with alcohol in his blood in violation of a court ordered alcohol restriction on his driver's license. We affirm his other conviction for speeding, as it is not otherwise challenged on appeal.
Because appellant's second issue as to the trial court's questions relates only to the matter of HGN testing and we are reversing his alcohol-related convictions, we shall not address that question.
JUDGMENT OF CONVICTION FOR SPEEDING AFFIRMED; ALL OTHER JUDGMENTS OF CONVICTIONREVERSED; COSTS TO BE PAID 20% BY APPELLANT AND 80% BY WASHINGTON COUNTY, APPELLEE.
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