Schultz v. State8/31/1995
tandard required by Kelly." ( People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240 at 1249, 130 Cal. Rptr. 144, is the California equivalent of Maryland's Reed v. State, supra, 283 Md. 374.) (As we shall hereafter take judicial notice of the reliability and acceptability in the relevant communities of HGN testing generally, the Leahy court's (and the Williams court's) holding that officers cannot generally establish the foundational scientific reliability of the test will not be of direct importance to our subsequent determination.)
Pennsylvania courts have noted that scientific evidence is "evidence that draws its convincing force from some principle of science, mathematics and the like." Commonwealth v. Miller, 367 Pa. Super. 359, 532 A.2d 1186, 1188 (Pa. Super. 1987). The Miller court noted that a proper Frye foundation must be laid before such evidence may be admitted. "The rationale for subjecting motorists suspected of driving under the influence of alcohol to the HGN test derives from the scientific principle that consumption of alcohol causes nystagmus." Id.at 1189. In Commonwealth v. Apollo, 412 Pa. Super. 453, 603 A.2d 1023 (Pa. Super.), alloc. denied, 613 A.2d 556 (Pa. 1992), the Pennsylvania court again confirmed that a proper foundation must be laid before HGN test results may be admitted in the courts of that state. In Apollo, the State attempted to lay a Frye foundation by introducing the testimony of a single expert, an optometrist who was also a certified instructor in respect to HGN testing. The court, in holding that a proper foundation had not been laid, noted:
Dr. Sisson conducted his own study of the incidence of gaze nystagmus in "sober" persons. His study indicated that approximately one in five hundred sober patients would fail the HGN test, in contrast to national studies which have estimated a failure rate of two to four percent in a similar population. Dr. Sisson testified that he was aware of no studies evaluating the reliability of the HGN test that have reached any conclusion other than that it is the most accurate field sobriety test available.
Id. at 1027. See also Commonwealth v. Moore, 430 Pa. Super. 575, 635 A.2d 625 (Pa. Super. 1993).
We join the states of Arizona, Alabama, California, Georgia, Illinois, Kansas, Louisiana, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oregon, Pennsylvania, Texas, Washington, and West Virginia and hold the HGN is a scientific test. In so holding, we note our awareness that the courts in Ohio, Arkansas, Iowa, and South Carolina -- the only states that we are aware of that have held that the HGN test is not scientific because it is merely a "field test," have deemed the test results admissible without requiring a foundation.
We shall further hold, however, that the results of HGN tests are, nevertheless, admissible in the trial courts of this State without further reference to the Frye/Reed standard. We take judicial notice of the reliability and acceptance of theHGN test. We perceive that the studies, scientific articles, foreign cases, and other literature on the subject that we have reviewed reveal that most courts and scientific authorities have held the tests reliable if properly administered. The cases also reveal a general trend in admissibility determinations towards emphasizing the qualifications of the person administering the test. That evolution of emphasis from the scientific framework of the test itself to the qualifications of those who administer it is where we feel the focus should not be. We address judicial notice first, and then the matter of the officer's qualifications, both generally and specifically.
Judicial Notice
In Faya v. Almaraz,
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