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Yell v. State7/16/1993
ntific community. The only evidence concerning the HGN test came from the officer who administered the test to the appellant. Officer James testified that he had received training to administer the test and he explained in general terms how he had administered the test to the appellant. He also testified as to what he had been taught with regard to analyzing test results, and he stated his evaluation of the appellant's performance of this test. This evidence falls far short of that required to demonstrate that the reliability of the test is generally accepted in the concerned scientific community. Accordingly, no proper foundation was laid for the admission into evidence of the results of the HGN test.
Appellant also complained that error occurred when the officer testified as to his opinion of the appellant's blood alcohol level at the time of the arrest, based largely upon the results of the HGN test. The record reflects that the officer testified to a correlation between blood alcohol concentration of .10 and above, and the rapid eye movement displayed during the HGN test. He then testified that based upon the HGN test and the other field sobriety tests, he believed the appellant to have had a blood alcohol level significantly higher than .10.
Title 47 O.S. 1991 § 11-902 [47-11-902] provides that it is unlawful for a person who has a blood or breath alcohol level of .10 to be in actual physical control of a motor vehicle. While the code provides at 47 O.S. 1991 § 757 [47-757] that competent evidence bearing on the question of whether a person was under the influence may be introduced at trial, it is clear that evidence other than that derived from chemical tests may not be used to quantify alcohol levels. Title 47 O.S. 1991 § 756 [47-756] specifically limits the methods of quantifying alcohol levels to chemical tests designed to analyze blood or breath. Because no chemical test was administered to the appellant in the case at bar, it was error for the officer to testify as to his opinion of the specific alcohol concentration maintained by the appellant at the time of his arrest.
In light of the foregoing discussion we find that the errors which occurred at trial were twofold. First, the results of the HGN test were not properly introduced at trial, as the reliability of this test was not shown to have been generally accepted by the concerned scientific community. As such, this did not constitute competent evidence bearing on the question of whether appellant was under the influence of alcohol. Second, even if the prosecution could have made the requisite showing for the results of this test to be admissible, such results could not, under Oklahoma's statutory scheme, be used as a basis upon which to quantify appellant's alcohol level. The results of the HGN test would not be admissible as scientific evidence creating a presumption of intoxication. Instead, the HGN test, predicated by the proper foundation, would be considered in the same manner as other field sobriety tests, such as the walk and turn test and the one leg stand test.
Accordingly, because we cannot find the evidence concerning the HGN test to have been harmless beyond a reasonable doubt, we must REVERSE and REMAND for a NEW TRIAL appellant's conviction for Driving Under the Influence .
IT IS SO ORDERED.
/s/ GARY L. LUMPKIN
Presiding Judge
/s/ CHARLES A. JOHNSON
Vice-Presiding Judge
/s/ JAMES F. LANE
Judge,
/s/ CHARLES CHAPEL
Judge.
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