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State v. Torres2/15/1999
knowledge that is novel or not generally accepted. On the contrary, the Alberico-Daubert standard explicitly incorporates "general acceptance" as a factor for courts to consider in determining the admissibility of scientific testimony, see Anderson, 118 N.M. at 299-300, 881 P.2d at 44-45, and we believe that the novel status of a particular scientific principle or procedure may be addressed in considering this factor. Indeed, in some contexts "novelty" may be nothing more than an antonym for "general acceptance." For these reasons, a finding that the scientific principles underlying HGN testing are generally accepted (or no longer a novelty) does not necessarily preclude consideration of other factors relevant to the Alberico-Daubert inquiry.
3. Scientific knowledge underlying HGN testing
{30} Courts in other jurisdictions disagree about whether the results of HGN testing in particular constitute scientific evidence that is subject to the Alberico-Daubert standard. See State v. Meador, 674 So. 2d 826, 833-34 (Fla. Dist. Ct. App. 1996) (noting that a minority of states have concluded that the HGN test is not based on scientific expertise, while the majority have concluded that the results of HGN testing are scientific evidence); State v. Merritt, 647 A.2d 1021, 1026-28 (Conn. App. Ct. 1994) (same); State v. Ruthardt, 680 A.2d 349, 355-56 (Del. Super. Ct. 1996) (same). Today we adopt the majority view that the results of HGN testing constitute scientific evidence that must meet the standard of evidentiary reliability articulated in Alberico and Daubert.
{31} The rationale for requiring evidence of HGN test results to meet the Alberico-Daubert standard has been well stated by other courts:
" hile most of the field sobriety tests are self-explanatory, HGN is not. When courts have taken judicial notice of the common physical manifestations of intoxication, horizontal gaze nystagmus is not included. Horizontal gaze nystagmus is not just a symptom such as slurred speech or bloodshot eyes, which are commonly understood signs of intoxication. . . ."
"The phenomena being tested are predicated on a scientific or medical principle that the automatic tracking mechanisms of the eye are affected by alcohol. . . ."
". . . he significance of the HGN observation is based on principles of medicine and science not readily understandable to the jury. We thus conclude that the HGN test is scientific evidence . . . ." Meador, 674 So. 2d at 833-34 (citations omitted); accord Merritt, 647 A.2d at 1026-28; Ruthardt, 680 A.2d at 355-56. We find this reasoning persuasive.
{32} Because we adopt this reasoning, we take this opportunity to correct any misapprehension of the law that may arise from Burke, 1999-NMCA-031, 11-14. While the Court of Appeals correctly notes that the use of HGN testimony "is not lay opinion under Rule 11-701 NMRA 1999," id. 12, the Discussion of the HGN testimony in that case does not support the general proposition that HGN evidence is "not based on scientific principles," id. 14. Indeed, "the trial court was never asked" to analyze the HGN evidence under the Alberico-Daubert standard in Burke because the defendant in that case "did not object below that there was no scientific basis for the officer's testimony; never mentioned either . . . Alberico . . . or Rule 11-702." Id. We thus limit Burke, 1999-NMCA-031, 14, to the situation where the trial court is not asked to perform an Alberico-Daubert analysis of HGN evidence, and thus the issue is not preserved for appellate review.
4. Admissibility of HGN test results in this case
{33} Because we conclude that HGN testing involves scient
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