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State v. Lasworth12/7/2001
eview of the entire transcript of Defendant's trial satisfies us that the district court remained open to any witness who was capable of providing biological, physical, or medical evidence about the relationship of HGN to a subject's BAC.
We note an alternate statutory rationale for upholding the exclusion of HGN evidence. This alternate ground follows from our recognition that the HGN FST has been validated, if at all, solely as a means of discriminating between BACs at or above a given level, and BACs below that level.
NMSA 1978, § 66-8-107(A) (1978, as amended through 1993) provides that " ny person who operates a motor vehicle within this state shall be deemed to have given consent . . . to chemical tests of his breath or blood or both, approved by the scientific laboratory division of the department of health." (Emphasis added). NMSA 1978, § 66-8-110(A) (1978, as amended through 1993), provides that " he results of a test performed pursuant to the Implied Consent Act [66-8-105 to 66-8-112 NMSA 1978] may be introduced into evidence in any civil action or criminal action arising out of the acts alleged to have been committed by the person tested for driving a motor vehicle while under the influence of intoxicating liquor or drugs." (Emphasis added). Lastly, Section 66-8-110(E) provides that " he determination of alcohol concentration shall be based on the grams of alcohol in one hundred milliliters of blood or the grams of alcohol in two hundred ten liters of breath." (Emphasis added).
The statutes cited in the preceding paragraph were enacted by Chapter 35 of 1978 N.M. Laws, which created the Motor Vehicle Code. In 1978 when the Motor Vehicle Code was enacted, Dr. Burns and her colleagues had only recently published the first laboratory study advocating the adoption of HGN as a FST. In view of the experimental status of the HGN FST in 1978, it is not surprising that the Legislature did not include HGN as a method of proving a suspect's BAC. Although the HGN FST has come to be widely known and widely used subsequent to the enactment of the Motor Vehicle Code in 1978, the Legislature has not amended the Motor Vehicle Code to authorize a conviction based upon the results of non-chemical BAC tests such as the HGN FST.
CONCLUSION
The decision of the trial court excluding the results of Defendant's horizontal gaze nystagmus field sobriety test is affirmed.
IT IS SO ORDERED.
WE CONCUR:
JONATHAN B. SUTIN, Judge
IRA ROBINSON, Judge
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