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STATE v. TAYLOR4/18/1997
[ 1] Leslie J. Taylor appeals both from the order entered in the Superior Court (Cumberland County, Delahanty, J.) denying his motion to suppress evidence and from the judgments entered against him following jury verdicts of guilty on the charges of operating under the influence (Class D) in violation of 29 M.R.S.A. § 1312-B (Supp. 1994), and operating after having been declared a habitual offender (Class D) in violation of 29 M.R.S.A. 2298 (Supp. 1994). Taylor contends on appeal that the Superior Court committed error in denying his motion to suppress evidence obtained from the vehicle stop and admitting in evidence expert testimony regarding the Horizontal Gaze Nystagmus (HGN) test. We affirm the judgments.
[ 2] On September 3, 1994, at about 1:00 a.m., Officer Mark Green was patrolling in Brunswick. Officer Green saw Taylor's car from a distance of about seventy-five feet and observed that the rear license plate was unilluminated. After stopping Taylor's car, Officer Green approached Taylor, explained his reason for doing so, and asked Taylor for his license. Taylor apologized for the light being out and said that he was unaware that the light was defective. Officer Green noted that Taylor had an odor of alcohol on his breath and that his speech was slow and thick. Taylor told Officer Green that he had consumed one beer about one and one-half hours earlier.
[ 3] Taylor performed four sobriety tests after exiting the car. While attempting to recite the alphabet, Taylor correctly stated the order of the letters but paused twice during the recital. When performing the walk-and-turn test, Officer Green observed that Taylor did not count his steps out loud as requested, stepped off-line once, incurred balance problems, and did not turn as Officer Green had requested. Taylor put his leg down, swayed, and lost count while attempting to perform the one-leg stand.
[ 4] Officer Green also administered an HGN test, which detects the presence of involuntary jerking of the eyes. During each of the three phases of the test, Officer Green observed jerking in both of Taylor's eyes. Officer Green testified that, as a result, Taylor had six "clues" of intoxication. At the conclusion of the sobriety tests, Officer Green placed Taylor under arrest for driving under the influence of alcohol. At the police station, Taylor refused to take a breathalyzer test. Officer Green never cited Taylor for a
[ 5] Taylor was indicted for operating a motor vehicle after his right to operate had been revoked pursuant to the habitual offender law, 29 M.R.S.A. § 2298 (Supp. 1994), and for operating under the influence 29 M.R.S.A. § 1312-B (Supp. 1994). After entering pleas of not guilty, Taylor moved to suppress evidence alleging that it was the product of an illegal stop. After a hearing, the court denied the motion based on Officer Green's testimony that he observed that the light was defective.
[ 6] At the jury trial, Taylor moved in limine to exclude the HGN results because no case law or scientific foundation proved its reliability. The State directed the court's attention to State v. Superior Court, 718 P.2d 171 (Ariz. 1986) (en banc), and the scientific evidence cited in that case, to show the reliability of the HGN test. The court denied Taylor's motion and concluded that it would allow expert testimony at trial on the HGN test subject to the laying of an adequate foundation.
[ 7] Officer Green testified that he had taken a three-day course which included the horizontal gaze nystagmus testing procedure and was taught by instructors at the Maine Criminal Justice Academy. He testified that the HGN test "deals with the eyes . . . s a person's intoxication level increas
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