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Hillery v. State12/3/2003
liable. Appellant's argument is not persuasive. Jason Watson, a deputy with the Clark County Sheriff's Office, administered the breathalyzer test to appellant. He testified that he is certified to administer the breathalyzer test. He further testified that appellant's blood-alcohol level registered at .312, which was well-above the then-legal limit. Appellant did not dispute Watson's qualifications or argue that he improperly administered the test.
Rather, appellant elicited testimony from his own witness, Dr. Roger Hawk, to support the unreliability of breathalyzer tests in general, and to raise questions concerning the reliability of the actual machine used to test appellant. Dr. Hawk is the chairperson of the Applied Science Department at the University of Arkansas at Little Rock. He testified that with a blood-alcohol level of .25 to .4, the range in which appellant's results fell, a person experiences symptoms such as general inertia, marked stupor, loss of muscular coordination, and the inability to walk or stand.
He also explained the process used in a breathalyzer, including the internal checks that the machine performs on itself to make sure it is purged of residual alcohol gas before it is used. Dr. Hawk stated that the process may yield inaccurate results, sometimes as much as 40%, due to the variations in pressure with which people blow into the machine, and variations in the temperature of different portions of the lungs. He further stated that various physical conditions, such as gastroesophagus reflux and the retaining of mouth alcohol in "pockets" in the mouth, could affect the results. Dr. Hawk concluded that appellant's result, .312, was a "real big number" that was probably the result of residual mouth alcohol released in a "quiet belch." However, Dr. Hawk also testified that the "evidence ticket," which indicated how the machine had operated and what the results were, showed that there was nothing wrong with the machine and that "everything went clickety, clickety, click."
The jury heard the evidence concerning the reliability of the breathalyzer machines, in general, and of the reliability of the machine used in this case, in particular, and chose to believe that the machine in this case was reliable. Further, appellant's conduct, as described by Forthman, was consistent with the conduct described by Dr. Hawk that would be expected from a .312 reading. Viewing the evidence in the light most favorable to the State, we hold that there was substantial evidence to support appellant's conviction.
II. Testimony Regarding the Horizontal Gaze Nystagmus Test
Appellant's second argument is that the trial court erred in denying his motion to exclude the officer's testimony regarding the HGN test, because the test is unreliable. An HGN test is administered by having a driver to cover one eye and focus the other eye on an object, usually a pen, held by the officer at the driver's eye level. As the officer gradually moves the object toward his ear, out of the range of vision of the driver, the officer watches the driver's eyes to detect involuntary jerking, which is indicative of intoxication.
Appellant offers extensive argument supporting why the HGN test should be considered unreliable under the standard for admitting scientific evidence adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). This four-factor test examines testing, peer review, error rates, and acceptability in the scientific community. Id. Under the Daubert approach, the trial must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and me
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