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Hillery v. State12/3/2003
thodology used by the expert has been properly applied to the facts in the case. Id. The Arkansas Supreme Court has adopted the Daubert test to determine the admissibility of expert testimony, scientific or otherwise, under Arkansas Rule of Evidence 702. The Coca Cola Bottling Co. of Memphis, Tennessee v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).
Appellant concedes that the Arkansas courts have recognized the admissibility of the HGN test under the relevancy approach announced in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), but he maintains that Daubert requires a stricter approach than Prater. However, even in adopting Daubert, the Arkansas Supreme Court did not reject the Prater rule; to the contrary, the court noted the similarities between the two approaches, with reliability being the critical element. See Foote, supra. Prater requires the trial court to conduct a preliminary inquiry of any novel scientific evidence, focusing on: 1) the reliability of the process used to generate the evidence; 2) the possibility that the jury would be overwhelmed, confused, or misled by the evidence; 3) the connection between the evidence to be offered and the disputed factual issue in the particular case. Prater, supra; see also Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).
However, appellant asserts that under Daubert, the trial court must conduct a preliminary inquiry, regardless of whether the HGN test is "novel" scientific evidence. We do not agree. The Arkansas Supreme Court has not expressly ruled that a Daubert inquiry is required in the absence of novel scientific evidence. Further, this court has held that a Daubert inquiry is not necessary where the witness's testimony was based on experience and observations rather than methodology, and where the testimony was not novel in any respect. Arrow Int'l Inc. v. Sparks, 81 Ark. App. 42, 98 S.W.2d 48 (2003)(concerning a physician's testimony).
Accordingly, we hold that the trial court did not err in admitting the officer's testimony concerning the HGN test. An officer's testimony regarding a HGN test is admissible to show that a driver has ingested substances that would make him an unsatisfactory driver, and is relevant as some indication of intoxication, but not to show the percentage of blood-alcohol content. Whitson v. State, supra. Moreover, no preliminary finding under Prater is necessary, where the defendant makes no showing that use of the HGN test results is "novel," but merely argues regarding the reliability and relevance of admitting the HGN test results. Whitson v. State, supra. That is, where HGN tests are admitted merely as an indication of intoxication, this is not considered "novel" scientific evidence, and the Daubert test does not apply.
Thus, Daubert did not require a preliminary inquiry in the instant case. Here, appellant did not offer evidence that the HGN test was novel; instead, he offered evidence that the HGN test results were unreliable and irrelevant. Further, while Officer Forthman very briefly explained how the test was performed and explained that eye jerking is an indication of intoxication, his testimony appears to be based on his experience and personal observations rather than HGN testing methodology. Moreover, Forthman merely testified as to his experience in conducting the HGN test on appellant; he did not testify as to the reliability of the methodology of the HGN test in general.
Finally, the evidence regarding the HGN test was not admitted to prove that appellant's blood-alcohol level was above the legal limit. That fact was subsequently established by the results of appellant's breatha
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