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State v. Hullinger7/10/2002
On March 18, 2001, Stanley County deputy sheriff David Ludwig observed a red Camaro driving slowly out of Fort Pierre. Ludwig noticed its driver touch the curb and cross the center line several times. At the Bad River bridge, the Camaro traveled in the oncoming lane, then jerked back to the proper lane and crossed the fog line. Ludwig activated his emergency lights and the driver increased his speed as he traveled southward on Highway 83. He continued approximately 1 to 1-1/2 miles before pulling to the roadside and stopping.
[ ] The driver of the vehicle, Timothy Hullinger, provided his driver's license and registration at Ludwig's request. Ludwig noted Hullinger's eyes were bloodshot and watery and the odor of alcohol emitted from his vehicle. When Hullinger spoke, Ludwig noted his speech was slurred. Ludwig explained he stopped Hullinger for erratic driving and asked him to have a seat in the patrol vehicle and then to perform some field sobriety tests. Ludwig noted that Hullinger staggered as he walked.
[ ] Hullinger correctly recited the alphabet but Ludwig again noted his slurred speech. Ludwig next administered the horizontal gaze nystagmus (HGN) test which required Hullinger to keep his eyes on an object, in this case a pen, while Ludwig slowly moved it through space. Ludwig noted Hullinger could not smoothly follow this object. His eyes showed nystagmus at maximum deviation and an onset of nystagmus prior to 45 degrees. Hullinger was then asked to count backwards from 1988 to 1969. He was able to recite these years correctly, but slurred speech was again noted.
[ ] All of these tests were performed inside the patrol vehicle. When Ludwig asked Hullinger to perform some outside field sobriety tests, Hullinger stated that he had a problem with one of his legs and asked why he needed to perform more tests. Ludwig then administered a breathalyzer (PBT) which registered over .10 percent blood alcohol content (BAC). He arrested Hullinger for driving under the influence. Hullinger refused to provide a blood sample and was transported to jail where his driver's license was confiscated and he was issued a 30-day temporary driving permit.
[ ] The State charged Hullinger with driving under the influence in violation of SDCL 32-23-1(2) and careless driving in violation of SDCL 32-24-8. It later amended its complaint to add a charge of reckless driving in violation of SDCL 32-24-1. Following the initial charges, Hullinger filed a motion to exclude evidence of the HGN test, claiming that Deputy Ludwig was not an expert and should be precluded from testifying about his opinions or conclusions with regard to his administration of this test.
[ ] The court ruled that no witness would be permitted to testify about Hullinger's performance on the HGN test until the State presented sufficient foundational evidence to justify introduction of such testimony. At the pretrial hearing, the State presented three witnesses: 1) Monte Farnsworth, training director for the Office of Highway Safety at the Division of Criminal Investigation Law Enforcement Training Academy; 2) Deputy Ludwig; and 3) Dr. Larry Menning, optometrist and expert witness. Farnsworth testified that he is a standardized field sobriety test instructor who has instructed approximately 700 police officers in administering the HGN test and analyzing its results. He further testified on these test methods, their standardization and reliability. Ludwig testified regarding his administering the test to Hullinger, its results, and his training and experience in administering the test. Dr. Menning testified regarding the effects of alcohol on the central nervous system, recognized studies regarding the HGN test and its scoring crit
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