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State v. Lasworth12/7/2001
INTRODUCTION
In State v. Torres, 1999-NMSC-010, 30, 127 N.M. 20, 976 P.2d 20, the Supreme Court held that the results of a horizontal gaze nystagmus (HGN) field sobriety test constitute scientific evidence within the meaning of Rule 11-702 NMRA 2001 when offered by the State against a defendant in a prosecution for driving while intoxicated; and, that HGN test results may not be admitted unless the State, as the proponent of HGN evidence, has demonstrated that such evidence meets the evidentiary reliability standard adopted by the Supreme Court in State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). In the present case, the district court, applying Torres, ruled that the results of Defendant's HGN test were inadmissible at trial. We affirm.
Overview of HGN and Standardized Field Sobriety Tests
HGN has come to be a principal component of standardized field sobriety tests (FSTs) as the result of a series of studies conducted under the auspices of the National Highway Traffic Safety Administration (NHTSA). In the mid-1970s, Drs. Marcelline Burns and Herbert Moskowitz, doing business as the Southern California Research Institute, were awarded a contract by the NHTSA to conduct laboratory studies of various FSTs then in use around the country, with the goal of identifying the most effective battery of FSTs. The results of the research were published in 1977. M. Burns and H. Moskowitz, Psychological Tests for DWI Arrest, Final Report, No. DOT-HS-802-424 (1977) (hereafter the 1977 Report). The 1977 Report recommended a battery of three FSTs: one-leg-stand, walk-and-turn, and HGN. According to Dr. Burns and Dr. Moskowitz, the combined scores from the proposed three-test FST battery correctly discriminated between subjects having blood alcohol concentrations (BACs) below 0.10 percent and those having BACs at or above 0.10 percent eighty-three percent of the time.
NHTSA sponsored a further study to standardize administration and scoring of the FSTs. The results of this second study were published in 1981. V. Tharp, M. Burns, and H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrest, No. DOT-HS-805-864 (1981). The researchers reported that in the laboratory, police officers trained in the administration of the three-test battery were able to discriminate between subjects whose BAC was below 0.10 percent and those whose BAC was at or above this level eighty-one percent of the time.
NHTSA funded a third study. The purpose of this study was to evaluate the effectiveness of the three-test battery in the field. Researchers concluded that a properly-administered HGN test would correctly identify a suspect as having a BAC at or above 0.10 percent seventy-seven percent of the time, and that when the HGN and walk-and-turn results were combined using a decision matrix, the two tests would correctly identify a suspect as having a BAC at or greater than 0.10 percent eighty percent of the time. T. Anderson, R. Schweitz, and M. Snyder, Field Evaluation of a Behavioral Test Battery for DWI, No. DOT-HS-806-475 (1983).
There have been further studies validating the NHTSA standardized FST battery, including studies in Colorado, M. Burns and E. Anderson, A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery, Final Report, submitted to Colorado Department of Transportation (1995) (hereafter 1995 Colorado Report); Florida, M. Burns and T. Dioquino, A Florida Validation Study of the Standardized Field Sobriety Test (S.F.S.T.) Battery, (1998); and California, J. Stuster and M. Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, Final Report, submitted to U
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