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State v. City Court of City of Mesa10/11/1990
-/REF--> 594 P.2d 97 (1979). The test's recognized margin of error provides problems as to criminal convictions which require proof of guilt beyond a reasonable doubt. The circumstances under which the test is administered at roadside may affect the reliability of the test results. Nystagmus may be caused by conditions other than alcohol intoxication. And finally, the far more accurate chemical testing devices are readily available.
Blake, 149 Ariz. at 279, 718 P.2d at 181; see generally 1 ERWIN, supra, § 8A.08 (listing problems with the HGN test).
Conclusion
The HGN test satisfies Frye for the limited purposes set out in Blake and in this opinion. In a case involving only a § 28-692(A) charge, where no chemical test of blood, breath, or urine has occurred, the use of HGN evidence is restricted. Evidence derived from the HGN test, in the absence of a chemical analysis, although relevant to show whether a person is under the influence of alcohol, is only relevant in the same manner as are other field sobriety tests and opinions on intoxication. In such
a case, HGN test results may be admitted only for the purpose of permitting the officer to testify that, based on his training and experience, the results indicated possible neurological dysfunction, one cause of which could be alcohol ingestion. The proper foundation for such testimony, which the State may lay in the presence of the jury, includes a description of the officer's training, education, and experience in administering the test and a showing that the test was administered properly. The foundation may not include any discussion regarding the accuracy with which HGN test results correlate to, or predict, a BAC of greater or less than .10%.
The decision of the court of appeals is vacated and the superior court is reversed. The case is remanded for further proceedings consistent with this opinion.
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