NO. 06-13-00223-CR 

## RECEiVED IN FILCO IN 

# ^ ^th^ST'3 INTHECOURT0FAPPEALS ^gSK'wliSf3* 

# £cf:JS) SIXTHDISTRICT DEC2 9 201,f Texarkana, Texas < * 

## Debra Autrey, Clerk TEXARKANA, TEXAS Tawtfana, Texas FHhrat H'lrcy, Cflji JESSICA NICOLE NANCE, APPELLANT

V.



### THE STATE OF TEXAS, APPELLEE

MOTION FOR REHEARING IN CAUSE NUMBER CR 1101695

IN THE COUNTY COURTATLAWNO. 1


### OF HUNT COUNTY, TEXAS

MOTION FOR REHEARING

BRIEF

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: 

### Comes Nowthe Appellant and submits this Motion for Rehearing pursuant to the provisions ofthe Texas Rules of Appellate Procedure inSupport of her request for thejudgment ofconviction to be overturned in Cause CR 1101695.IDENTITY OF PARTIES AND COUNSEL
Pursuantto Texas Ruleof Appellate Procedure 38.1, the undersigned counsel of record certifies that the following persons have^an interest inthe outcome of this case. These representations are made so that the Justices of this Honorable Court can evaluate whetherthey are disqualified to serve or should recuse themselves from participation inthe decision of this case.

APPELLATE:

Jessica Nicole Nance

PO. Box 211362
Bedford, Texas 76095

APPELLATE ATTORNEY:

Jason A. Duff

2615 Lee Street

P.O. Box 11 Greenville, Texas 75403

Appellee:
The State ofTexas by and through

Joel D. Littlefield Jeffery Kovach

Hunt County Attorney

4th Floor Hunt County Courthouse

2500 Lee Street
Greenville, Texas 75401TABLE OF CONTENTS 

## Identity ofthe Parties and Counsel

Table of Contents

Index ofAuthorities



### Statement ofthe Case

Issues Presented



### Statement ofthe Facts 

## Summary ofthe Argument Prayer for Relief


## Certificate of compliance oftypeface and word count

Certificate of ServiceINDEX OF AUTHORITIES

CASES



### Brooks v. State, 323 S.W.3d 893 

### (Tex.Crim.App. 2010) Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007)

Gilliand v. State, 2011 WL 3862861 

### (Tex.App.—Texarkana 2011)
Hartsfield v. State, 305 S.W.3d 859 

### (Tex.App.—Texarkana 2010) Hooperv. State, 214 S.W.3d 9 (Tex.App.—Texarkana 2007)
Jackson v. Virginia, 433 U.S. 307 (1979)
Johnson v. State, 517 S.W.2d 536 

### (Tex.Crim.App.1975)


### Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012) 

## Haynes v. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971) Kentucky v. King, 131 S.Ct. 1849,1856 (2011) Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347,357(1967))

### Gonzales, 369 S.W.3d at 854 

### Bray v. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. [Panel Op.] 1980) (quoting 

### McDonald v. United States, 335 U.S. 451,455 (1948))
Johnson v. United States, 333 U.S. 10,17 (1948)
Jones v. United States, 357 U.S. 493,499 (1958).


### McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). 

## Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on othergrounds byCalifornia


## v.Acevedo, 500U.S. 565,568-80 (1991) (internal quotation marksomitted)). United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beckv. Ohio, 379 U.S. 89,96(1964) 

## Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013) (quoting Wayne R. LaFave, 2 Search and Seizure: ATreatise on the Fourth 

### Amendment § 4.3(b), at 511 (4th ed. 2004))).


### State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes omitted) 

### Robinson, 334 S.W.3dat 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 

## Robinson, 334S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007). 

### Bray, 597 S.W.2dat 765 n.l (quoting McDonald, 335 U.S. at 456).
Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).
Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990)

STATUTES and RULESTexas Penal Code 49.04


### Rule 44.2(a) ofthe Texas Rules of Appellate Procedure
See TEX. R. APP. P. 44.2(a)
Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001)
Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App. 2011).

End Notes: 1Adams, R., &Victor, M. (1993). Principles of Neurology, 5th edition. McGraw-Hill, Inc.: NewYork 2 Burns, M.,& Anderson, H.( 1995). AColorado validation study ofthe standardized field sobriety (SFST) battery. Final Report. Colorado DepartmentofTransportation. 3 Burns, At, & Dioquino, T.( 1997). A Florida validation study ofstandardized field sobriety test (S.F.S.T. battery. Florida Department of Transportation.
4 DeMyer, W. Neuroanatomy. Williams &Wilkins, Baltimore.
5 DWI detection and standardized field sobriety testing Student manual.(1995). NHTSA, U.S. Department ofTransportation.
6 DWI detection and standardized field sobriety testing Instructor manual. (1995). NHTSA, U.S. Department ofTransportation.
7 Elliot. C, & Murray. A. (1998). Repeatability of body sway measurements; day-to-day variation measured by)sway magnetometry. Physiol. Meas.19,159-164. 8 Lee,D..& Lishman, J. (1975). Vision -the most efficient source ofproprioceptive information for balance control. Symposium international de posturegraphie, 83-93.
9 Mills, K., &Bisgrove, E. (1983). Body sway and dividedattention performance under the influence of alcohol: Dose-response differences between males and females. Alcohol Clincial and Experimental Research, 7(4), 393-397. 10 Nardone, A., Tarantola, J., Giordano, A., &Schieppati, M. (1997). Fatigue effects on body balance. Electroencephalography and clinical Neurophysiology, 105, 309-320.11.Netter, F. (1993). Compilation of Pathological and Anatomical Printing. CIBA Pharmaceutical Publications, Netter F.The CIBA Collection ofMedical Illustrations, Volume 1. CIBA Pharmaceutical Publications. 

### 12Newell, F. (1996) ophthalmology: Principles and concepts, 8th edition. Mosby-Year book Inc. 13.Psychophysical tests for DWI arrest. 91977). U.S. Department ofTransportation. 14 Stuster, J.,& Burns, M. (1998).Validation of the standardized fieldsobriety) test battery at BACs below 0.10 percent. Final Report, NHTSA. U.S. Department ofTransportation. 15. Tharp, V., Burns, M., &Moskowitz., H. (1981). Development and fieldtest ofpsychophysical tests for DWI arrest. Final report, NHTSA, U.S. Department ofTransportation.

a. Albinism with an absence of pigment cells causes a loss of cells for focusingon objects. 

### b. Retinatitis Pigmentosa where the cells of the Macula, the central part of the eye,degenerate, which makes visual acuity disappear. c. Diabetes, where small hemorrhages maykill off parts of the cellsthat helps sees on the retina. d. Multiple Sclerosis, and Rheumatoid Arthritis both a demyelinating disease thatcan affect nerves, makes them respond erratically, and causes blind spots on the retina.STATEMENT OF THE CASE 

### This is an appeal ofthejudgment and sentence in a criminal case for the County Court at Law Number 1 in Hunt County, Texas. Appellant Plead Guiltyto the crime of Driving while Intoxicated Second. (RR Vol. 3 p.8) Appellantfiled inthe trial court an election to punishmentto be made by the trial court on August 12th, 2013. The court ordered a pre-sentence investigation. Appellant was 

### assessed a sentence of imprisonmentfor Two Hundred Fifty (250) days inthe 

### Hunt County Jail, $0.00 fine, and $433.00 incourt costs on October 14th, 2013 by the trial court. Motion for New Trial was timely filed on November4th, 2013 in 

### the trial court and has yet to be heard. The court reporter's record was filed on 

## April 26th, 2013. Appeal was affirmed on November 10th, 2014. Motion for rehearing wasfiled on November 12th, 2014. Motion was granted on November 25th, 2014.ISSUES PRESENTED

Point ofError One:
Defendant's Fourth Amendment rights were violated when the officers failed to obtain a search warrant.

Point ofError Two:
Trialcourt erred inthe admissibility, utilization and refutation ofthe State's evidence concerning field-sobriety test.

Point oferror Three:
Trialcourt erred in allowing Trooper Goodwin to testify that there is a certain level of intoxication that can be determined by the HGN

.Statement ofthe facts Appellant pled guilty to Driving While Intoxicated, Second

. (RR Vol. 3 p.8). The trial court admonished Appellant ofthe charge and the range of punishment. (RR Vol. 3 p.8-15). The trial courtthen admonished the Appellant that the State was seeking to enhance his 

### punishment range from a Class Bmisdemeanor to a Class Amisdemeanor. (RR Vol. 3 p. 8-15). The court informed Appellant that she had the right to have a presentence investigation and ordered it done. (CR Vol. 1 p. 195). During the sentencing hearing the State moved to admit Exhibits 1-6 which included the roadside videos, intoxilizer videos and her test results and records obtained from criminal records from Dallas County. Without objection from the Defense the trial court admitted them. (RR Vol. 3 p. 25). Both sides presented arguments and the Court came back with a sentence oftwo hundred and fifty days in jail. (RR Vol. 5p. 113-125).SUMMARY OF THE ARGUMENT 

### Jessica Nicole Nance appeals from her conviction, on an open plea of guilty, of driving while Intoxicated (DWI) second offense. Following a hearing on punishment, the trial court sentenced Nance to 250 days in jail. Nance's appointed appellant counsel filed an Anders brief 

### inthe matter detailing the procedural history of the case, summarizing and analyzingthe trial evidence, and stating that he found no meritorious issues to raise on appeal. Nance availed herselfofthe opportunityto file a pro se response. Nance contends that she received 

### ineffective assistance of counsel with respect to each of the following issues: (1) Defendant's Fourth Amendment rights were violatedwhen the officersfailed to obtain a search warrant. 

### (2) Trialcourt erred in the admissibility, utilization and refutation ofthe State's evidence 

### concerning field-sobrietytest. (3)Trial court erred in allowing Trooper Goodwin to testify that there is a certain level ofintoxication that can be determined by the HGN

.Point ofError One:
Defendant's Fourth Amendment rights were violated when the officersfailed to obtain a search

warrant.
Requirement ofa Search Warrant
The Fourth Amendment to the United States Constitution provides, "The right ofthe people to be
secure intheir persons... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue" unless certain requirements are met. U.S.CONST. AMEND. IV; see also TEX. CONST, art. I, § 9. This right "proscribes allunreasonable searches and seizures," Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012), and its "basic purpose

... isto safeguard the privacy and security of individuals against arbitrary invasion bygovernmentofficials," Haynesv. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971). "Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, [the Supreme Court ofthe United States] has inferred that a warrant must generally be secured." Kentuckyv. King, 131 S.Ct. 1849,1856 (2011). Thus, "it is a cardinal principle that 'searches conducted outside thejudicial process, without prior approval byjudge or magistrate, are perse unreasonable underthe Fourth Amendment—subject only to a few specifically established and welldelineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); Gonzales, 369 S.W.3d at 854. "'Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.'" Brayv. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451, 455 (1948)). The warrant requirement has been described as one of "the most fundamental distinctions between our form ofgovernment, where officers are underthe law, and the police-state where they are the law." Johnson v. United States, 333 U.S. 10,17 (1948).

Judicial issuance of a warrant is important because it "provides... a more reliable safeguard against

improper searches than the hurriedjudgmentof a lawenforcement officer engaged in the often 

### competitive enterprise of ferreting out crime." Hudson v. State, 588S.W.2d 348,351 (Tex. Crim. App. 1979) (quotingUnited States v. Chadwick, 433 U.S. 1,9 (1977), abrogated on other grounds byCalifornia

v. Acevedo, 500 U.S. 565, 568-80 (1991) (internal quotation marks omitted)). Aneutral magistrate's prior review "prevents] hindsight from coloringthe evaluation of the reasonablenessof a search or seizure." United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beckv. Ohio, 379 U.S. 89,96 (1964) ("Anarrest without a warrant bypasses the safeguards provided by
an objective predetermination ofprobable cause, and substitutes instead the far less reliable procedure of an after-the-eventjustification for the arrestor search, too likely to be subtly influenced bythe familiar shortcomings of hindsightjudgment."); Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013) ('"[0]ne important function of the warrant requirement is to facilitate review ofprobable cause and avoid justification for a search

... by facts or evidence turned up inthe course of [its] execution.'" 

### (quoting WayneR. LaFave, 2 Search andSeizure: ATreatise on the Fourth Amendment§ 4.3(b), at 511 (4th ed. 2004))). "The exceptions to the rulethat a search must rest upon a search warrant have been jealously and carefully drawn " Jones v. United States, 357 U.S. 493,499 (1958). Those exceptions include "voluntary consent to search, search under exigent circumstances, and search incidentto arrest." McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). It is the State's burden to show that a warrantless search falls within one ofthese exceptions. Id.
Inthe case ofthe Defendant Nance a search warrant was never obtained .Although Deputy Fernandez arrived at the scene at 2:57 a.m and the Defendant wasn't until arrested until 4:30 am at no time was a search warrant everrequested even though the Defendant's vehicle was searched and two bottles ofemptywine were found (RR. Vol. 4) the car had not been impounded at the time ofthe search

nor had a wrecker been called to pick up the vehicle at the time of the search. In fact the carwas searched more than once by more than one officer. Althoughone of the officers testified that he was checking for "inventory" it was impossible to check for inventory when the Defendant hadn't even been placed under arrest for any crime nor had she been asked to perform any FST at the time of the search. The officer (TrooperGoodwin) testified to havingsearched the car only for "inventory " purposes howeverhe had not come incontactwith the suspect at the time of the search and seizure to know if the car would indeed have to be impounded.

Burden To Prove an Exception to the Warrant Requirement 

### "A defendant who alleges aFourth Amendmentviolation has the burden ofproducing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishingthat the seizure occurred without a warrant." State v. Robinson, 334S.W.3d 776,778-79 (Tex. Crim. App. 2011) 

### (footnotes omitted); see Robinson, 334S.W.3d at 780(Cochran, J.,concurring); Ford v.State, 158 S.W.3d 488,492 (Tex. Crim. App. 2005). The burden then shifts to the State to prove that the seizure
was nonetheless reasonable. Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007). In this case a warrant was needed to search the car because the Defendant did not give consent for the car to be searched.Exigent Circumstances
'"We cannot... excuse the absence ofa search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies ofthe situation made that course imperative.'" Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456). Exigentcircumstances typically fall within one or more ofthree categories: (1) "providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance"; (2) "protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous"; and (3) "preventing the destruction ofevidence or contraband." Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

Nowhere in the record does it state the officers believed the Defendant was armed and dangerous, needed medical attention, or they felt that she was going to destroy evidence. The State

failed to establish exigent circumstances. The State has the burden to show "exigent
circumstances.-.made obtaining a warrant impracticable"); Crane v. State, 786 S.W. 2d 338, 346 (Tex. Crim. App. 1990) ("Inorderfor a warrantless arrest or search to be justified, the State must show ...the

existence ofcircumstances which made the procuring of a warrant impracticable.")

InDouds, the Fourteenth Court of Appeals found that the record did not reflect exigent

circumstances because it contained no mention ofa warrant and because there was no evidence regarding what the officer knew regarding the time needed to obtain a warrant. Douds, 434 S.W.3d at 855. Afinding of exigent circumstances "must be based on an officer's reasonable beliefthatthe delay

necessary to obtain a warrant will facilitate the destruction of removal of evidence...." (emphasis added))). Noattempt was made to obtain a warrant in this case. Eventhough there were about half a

dozen officers on the scene in this case and this accident happened almost a hour and 15 minutes later

there is no indication that officers not on the scene were unavailable to help obtain a warrant.

Harm AnalysisBecause the State failed to meet its burden, a harm analysis must be performed. The admission
ofevidence obtained in violation of the Fourth Amendment issubject to constitutional harm analysis
pursuantto Rule 44.2(a) ofthe Texas Rules ofAppellate Procedure. See TEX. R. APP. P. 44.2(a);

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001). "Ifthe appellate record in a criminal case
reveals constitutional error that is subjectto harmless error review, [we] must reverse [the] judgment of

conviction or punishment unless it is determined beyond a reasonable doubt that the errordid not
contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). The harmless errorinquiry under Rule44.2(a) should adhere strictly to the question ofwhetherthe errorcommitted in a particularcase
contributed to the verdict obtained inthat case. Snowden v. State, 353 S.W.3d 815,821 (Tex. Crim. App.
2011).

The accident occurred at 2:57 a.m. the Defendant Nance wasn'ttaken into policecustody until

4:30a.m. which gave the officers at the scene more than enough time to request a search warrant.Point ofError Two:

Trial court erred in the admissibility, utilization and refutation ofthe State's evidence concerning all ofthe field-sobriety test that were administered



## TexasTrooperBubba Goodwin was sworn on August 13th, 2013. (RR. Vol 4 

## pg.6). Atapproximately 2:57 am onJuly 25th 2011 TrooperBubbaGoodwinwas called to assist in a accident. Based on Trooper Goodwin's testimony nance was believed to be in intoxicated because he could smell alcohol on her, she thinks 

### she is headed "home" but she is actually 50 miles away, and the results from the 

### HGN task, the one leg stand, the finger dexterity and the alphabet test. (RR Vol. 4 p. 16-17) During examination Trooper Goodwin testified that there is a certain level of intoxication that can be determined by the horizontal gaze nystagmus.( 

### RR. Vol 4 pg. 10 lines 24-25) Trialcounsel objected to histestimony stating that he isn't allowed to interpret the results. (RR. Vol. 4 pg. 12 lines 11-19). The trial court overruled the objection (RR.Vol. 4 pg. 12 line 20-24). Trooper Goodwin testified he didn't perform the walk and turn test because the Defendant informed him she had "bad knees". (RR. Vol. 4 pg. 13 1-4). Although Defendant informed 

### Trooper Goodwin of her bad knees and Rheumatoid Arthritis she was still asked to perform the one leg stand test which is a test that requires a individual to put 

### all oftheir body weight onto one knee. (RR Vol. 4 pg. 14 lines 5-7) Trooper Goodwin testified to performing two non-standardized tests. The alphabet and the finger dexterity. He said that Nance performed poorly on both. RR. Vol. 4 pgs. 

### 14-16)TrooperGoodwin admitted to givingthe Defendant instructions to the one leg stand that suggestthat it was "ok for the Defendantto put herfoot down and pick it back up." What he failed to do was to inform the Defendantthat it indeed

was NOT ok to put her foot down because putting her foot down was one of the

### clues that he was looking for to see ifshe was indeed intoxicated. (RR Vol. 4 pg 21 lines 21-25 ; page 22 lines 1-9 and RR Vol. 4 pg 21. Lines 20-25)Trooper Goodwin also testified that the Defendant informed him BEFORE taking the tests that she had Rhuematoid Arthritis (RR Vol 4 pg 23 lines 1-4) He testified that he failed to 

### inquiry as to what parts of her body she suffered the Arthritis from. (RR Vol. 4 pg. 

### 23 lines 6-25)) and he also testified that her ability to stand on one leg or knee or count on herfingers could all be affected byArthritis

. (RR Vol. 4 pg. 24). Trooper Goodwin testified that even though the finger dexterity and the alphabet tests weren't standardized tests they were still an indicator ofintoxication because she 

### performed poorly.{ RR. Vol. 4 pg. 16 lines 4-9)Defendant was then placed under arrest. (RR. Vol. 4 pg. 16 lines 11-13).
While a State's witness can testify as to what was observed while 

### conducting field sobriety tests and can testify that such tests helped inform the witness decision to arrest a defendant even assuming the Court allows the State 

### to adduce testimony regarding the administration ofthe HGN test and the one leg stand in Nance's case Trooper Goodwin shouldn't have been allowed to testify that such tests for example correctly identify intoxicated individuals. See. Tex.R. 

### Evid. 705 (b). Inthe Defendants case the arresting officerTrooper Goodwin testified thatthe Defendantwas overthe limit of 0.8. (RR. Vol. 4 page 19).
In Emerson v. State, 880 S.W. 3d 759, 768-69 (Tex. Crim. App. 1994), the 

### Court ruled that an officer's testimony showing a correlation between a person's performance on the horizontal gaze nystagmus test and a specific blood alcohol concentration was impermissible. Alater court applied the Emerson court's analysis to the one leg stand test and it came to the same conclusion as the court 

### in Emerson. McCrae v. State, 152 S.W. 3d 739, 746 9Tex. App. 2004). Use of impermissible testimony is a constitutional error because it violates a defendant's 

### due process and fair trial rights under the Sixth Amendment as incorporated 

### against the States through the Fourteenth Amendment. The appropriate test then iswhetherthe appellant was harmed bythe court's error, even though there

was an objection and in this case the Defendant was harmed which in this case

was ineffective assistance of counsel.

### To prevail on an ineffective assistance ofcounsel claim the appellant must 

### show by a preponderance of the evidence both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Williams v. State, 301 S.W. 3d 675, 687 (Tex. Crim. App. 2009). Appellant must demonstrate under the first prong that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687- 

### 88; Ex parte Lane, 303 S.W. 3d 702, 707 (Tex. Crim. App. 2009). There is a strong presumption that counsel acted professionally and that counsel had his or her 

### strategic reasons behind decisions that may appear to be errors. Strickland at 689.
To meet the second prong, appellant has to show the existence ofa reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Exparte Lane, 303 S.W. 3d at 707. Areasonable probability is a probability sufficient to undermine confidence in the outcome. Jackson v. State, 877 S.W. 2d 768, 771 

### (Tex. Crim. App. 1994); Simms v. State, 848 S.W. 2d 754, 756 (Tex. App.—Houston 

## {1st Dist.} 1993, pet. ref'd).
In 1975, NTHSA funded a research project run by the Southern California Research Institute. At that time, Dr. Marceline Burns was a founder and 

### researcher at that organization. The project was to determine ifthere were, either individually or in combination, any roadside tests that could aid an officer in determining whether a person was under the influence of alcohol. (See Statement Under Oath ofDr. Burns attached hereto).

Pursuant to that contract, research was performed evaluating many ofthe 

### commonly used roadside tests and narrowing the listto approximately 15 tests that were used Nationwide and seems to have some usefulness. From that group 

### of 15 tests only 6 were eventually believed to be valid and feasible at roadside. (Burns Stmt at 10-15)
These six tests were then studied in controlled laboratory experiments to 

### determine their accuracy. (Burns Stmt at 22-24). Inthe end, a combination of

### three tests were determined to be the best indication ofimpairment. There three tests: horizontal gaze, nystagmus, one legged stand, and walkthe line, were 

### adopted by NTHSA as the ONLY tests to determine sobriety at roadside. (Burns Stmt at 7-8). 

### Additionally, as Dr. Burns has pointed out on many occasions, variance 

### from the proscribed manner ofadministering, observing, and evaluating an individual's performance of the three standardized tests deprives the tests of reliability and accuracy. "Therefore the scoring and the observations don't relate 

### to any ofthe research data or any ofthe accumulated data overthe years. " (Burns Stmt at page 30, line 4-7).


### This position, that only tests given inthe "standardized" manner, have any 

### validity isechoed in virtually every police manual regarding field sobriety tests.
The Ohio Supreme Court inState v. Homan (April 26, 2000) 89 Ohio St. 3d 421, 732 N.E. 2d 952, held that any variation inthe use ofthe NHTSA 

### Standardized FieldSobrietyTests makes the results completely unreliable as relates to probable cause, a lower standard than required for conviction. The courtfound "it is well established that in field sobriety testing even minor deviations from the Standardized procedures can severely bias the results." This is dues in part, the court reasoned, to "the small margins oferrorthat characterize 

### field sobrietytests making strict compliance critical" and "when field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable."


### Based on the foregoing rationale, the Ohio Supreme Court ruled " in order 

### for the results of a field sobriety test to serve as evidence ofprobable cause to arrest, the police must have administered the test in strict compliance with 

### standardized testing procedures. " In the case ofthe Defendant here, Trooper Goodwin did not use the three standardized tests. The test the officer did used 

## (alphabet and finger dexterity) have not been the subject of any review or study. Anytests thatthe officer did use from the three battery approved byNHTSA were done inconsistently with the prescribed matter. As stated above, such variance 

### from the standard effectively creates a new test. Based on the foregoing, those

### test do not meet the Kelly test for admissibility. Furthermore, it is clear thatthe standard enunciated for admissibility in Kelly cannot be met by the prosecution.
The standard for admissibility ofevidence based on new scientific techniques first propounded in Kelly and left unchanged by Daubert is applicable to field sobriety tests. Pursuant to the Texas Evidence Code and the decisions of the United States Supreme Court in Kumbo Tire, the Kelly standard is applicable 

### to testimony based on training and experience as well as more traditional "scientific" knowledge. Under that standard, field sobriety tests are inadmissible evidence until shown to be in conformance with Kellywhich in this case the 

### prosecution has failed to do. The tests used in this case do not and cannot be shown to meet this standard ofreliability and should be precluded.
Based on the analysis ofvirtually every state court decision, and hearing or 

### reading from the foremost experts inthe field of DUI/DWI investigation for both prosecution and defense, the United States District Courtfor the district of Maryland " the results of the SFSTs either individually or collectively, are not admissible for the purpose ofproving specific blood alcohol content (BAC) ofa 

### driver charged with DWI/DUI." U.S. v Horn (D. Md. 2002) 185 F. Supp. 530. Therefore, evidence ofperformance on the SFSTs is not relevant.
Dr. Marceline Burns, considered by most courts to be the foremost 

### proponent ofSFSTs (see e.g., Horn, supra), has stated under oath "What you're asking is are these tests ofdriving? They are not...The officer is not charged with making a decision about driving skills at roadside. He couldn't. There's no way you


### canjudge somebody in five minutes at roadside that you never saw before to make a decision about their driving skills." (Statement ofDr. Marcelline Burns 

## UnderOath, April 17th, 1998).
Since these tests, according to their foremost proponent, cannot indicate 

### driving ability, let alone impairment, they are not relevant to the charge of Driving While Intoxicated Second.


### Based on the foregoing, any testimony with regards to SFTS's is irrelevant and should be precluded.

### Inthe closing ofTrooper Goodwin's testimony he was asked by the Court to clarify one ofthe reasons why Defendant was arrested for DWI.


### Court: Iwant to clarify something in my own mind relating to your testimony about the reasons for the DWI arrest. One ofthem you said was that 

### she well, let mejust ask you the question. Ithinkthat Iheard her say, when you said, where are you heading, Ithink that you—she replied home; is that correct?

A. That's correct. 

### Q. All right. And then when you asked where she lived she said Dallas?

A. Dallas. 

### Q. Ifthe accident occurred in Royse Citybut she was stopped in Hunt County, it's true to say that she was driving east bound on 1-30, which is away from Dallas is that correct?

A. That is correct. 

### Q. Okay. Andthat's one ofthe reasons you used in your decision to arrest her?

A. That's correct.

FURTHER CROSS EXAMINATION:

BY Mr. Brooks: 

### Q. Based on that, Trooper Goodwin are you familiar with Mount Pleasant, Texas?

A. Yes sir. 

### Q. Inwhat direction from the accident—or excuse me your stop would Mount Pleasant be in?

A. East 

### Q. On past Greenville?A. That's correct. 

### Q. Didyou ever inquire ofMs. Nance where she was actually from?

A. No, sir. 

### Q. Okay. So ifshe's from Mount Pleasant, that would be the direction ofgoing home, would it not?


### A. Iasked her where she was going. She said home, and her home was in
Dallas. 

### Q. Actually, what you asked her, was where do you live.
A. Where do you live.
Q. And she said Dallas.


### A. Okay. 

### Q. Sometimes folks referto a different place as home as opposed to where 

### they live, don't they?

A. Yes, sir. 

### (RR. Vol. 4 pgs. 29-31.)


### InJohn V. State, 517 S.W. 2d 536 (Tex. Crim. App. 1975) which has long stood for the proposition that being intoxicated at the scene ofa traffic accident which the defendant was alleged to be the driver was not evidence thatthe defendant was driving while intoxicated.


### Texas law requires the State to establish, beyond a reasonable doubt, a temporal linkbetween Defendant's intoxication and her driving. Here, the admitted evidence did not establish Defendant had a blood alcohol content of 0.08 or above at the time she was behind the wheel and the circumstantial evidence did not establish Defendant lacked the normal use of mental or 

### physical faculties. As a result, no rational fact-finder could have found the

### essential elements of driving while intoxicated beyond a reasonable doubt. Defendants conviction should therefore be reversed.



### According to the unpublished opinion in Gilliand v. State:


### Inevaluating legal sufficiency ofthe evidence supporting (a) DWI conviction, we review all the evidence in the light most favorable to the verdict 

### to determine whether any rational fact-finder could have found the essential elements of DWI beyond a reasonable doubt. Brooks v. State, 323 S.W. 3d 893, 

### 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 91979); Hartsfield v. State, 305 S.W. 3d 859, 863 (Tex. App.-Texarkana 2010, pet. refd) 

### (citing Clayton v. State, 235 S.W. 3d 772, 778 (Tex. Crim. App. 2007). Our rigorous legal sufficiency review focuses on the quality ofthe evidence presented. Brooks, 323 S.W. 3d at 917 (Cochran, J., concurring). We examine 

### legal sufficiency underthe direction ofthe Brooks opinion, while giving deference to the responsibility ofthe trialjudge "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable interferences from 

### basic facts to ultimate facts." Hooper v. State, 214 S.W. 3d 9,13 (Tex.Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).
NOTREPORTED in S.W. 3d, 2011 WL3862861, (Tex. App.-Texarkana 2011, no 

### pet.).Point ofError Three


### Field sobriety tests were standardized in 1977 by the National Highway Traffic Safety Administration (NHTSA) and since then have been taught to law enforcement officers on a national basis to determine who is "Driving While Intoxicated." The primary NHTSA research was done with 238 allegedly normal volunteers, with three Standard Field Sobriety Tests. The studies suggested that the combined results of3 failed tests (SFSTs) the Horizontal Gaze Nystagmus 

### (HGN),the One-Legged Stand, and the Walk and Turn correlated 80% of the time with the subjects' Blood Alcohol Concentration (BAC) of 0.1 mg % or higher. In 1995, these tests were correlated to a BAC of0.087 mg % (2) and in 1997 to a BAC of0.05% (3), and the results were shown to be almost the same. Interestingly, the research never provided a direct correlation with an individual's failure on the 3 SFSTs and a loss of normal use ofeither mental or physical faculties. 

### They have provided what law enforcement was seeking when NHTSA tried not to develop a more sensitive test that would provide more reliable evidence of intoxication 13." The National Highway Traffic Safety Administration have viewed the SFSTs as a quick, simple, non-evasive way to determine Blood Alcohol Concentration (BAC} at a level that they defined as "intoxication" for everyone. This briefwill review one ofthese tests, the Horizontal Gaze Nystagmus (HGN) 

### Test, and will demonstrate problems in using it as a determinant ofwhether

someone is accurately and reliably evaluated as Driving While Intoxicated.
Blood Alcohol Concentration (BAC) in fact is not a measure ofintoxication, but 

### only of the level of alcohol inthe blood at that moment in time. Despite NHTSNs desires and research pronouncements, there are problems with these SFSTs. Its initial supportfor these studies, however, was guarded because the 1977 initial 

### report included the following disclaimer on the front page. "Prepared for the Department ofTransportation, National Highway TrafficSafety Administration ,under Contract No. DOT: HS-5-01242. This document is disseminated underthe

### sponsorship ofthe Department ofTransportation in the interest ofinformation 

### exchange. The United States Government assumes no liability for the contents or 

### use thereof, (n)rIt is ofimportant note that other NHTSA funded studies bythe
same primary researcher, Ms. Marcelline Burns (a behavioral psychologist), in collaboration with colleagues at the Southern California Research Institute 

### (ANACAPA Science, Inc.), a center she directs, included the same disclaimer.} 3,5,6,13,14)

Overview



### The onlytrue way to directly measure Blood Alcohol Concentration (BAC) isto draw blood and to measure the alcohol level in a proper laboratory. Field Sobriety Tests are indirect, and at best, circumstantial, measures ofthe BAC.



## Thevalidity of indirectmeasures ofBAC becomes even more suspicious with the realization that it is dependent on the external environment and the individual's 

### current physical and emotional state. An individual's ability to perform these tests involvesthe functioning oftheirtotal body, includingtheir nervous, skeletal and muscular systems. Thiscannot be assessed without knowledge of the individual's 

## past medical history, including physical traumas, and are probably too complex to be done by non-medically trained personnel such as law enforcement officers. 

### The original studies documented that between 68% and 80% ofthe people who 

## failed lto 3 Field Sobriety Tests had a BAC of at least 0.1 mg % (astested by breath (13), another indirect measure). By adding inthose individuals who were 

### not judged intoxicated (ones for whom BAC was below 0.1 mg%), the SFSTwas 

## depicted to be90% accurate forall peopletested. Interestingly, this 90% figure also included over20% whotested positive andfailed the Field SobrietyTests, and were therefore assumed to have a 0.1 mg% BAC but in fact had a BAC lower 

### than that level.Accordingly, usingthe SFSTinthe real world ofDWI arrests, these

### individuals would have been wrongly declared intoxicated and in turn would have lost their license, been arrested and possibly convicted. It must be emphasized here that the study's statistics show that the percentage of individuals who test 

### positive but have a BAC lower 0.1mg% got as high as 35% ifjust one of the SFTs

was used.


### The Southern California Research Institute's 90% accuracy claim for everyone is an 

### ostensively impressive sounding percentage. This claim, however, becomes invalid when one realizes that the BAC was determined by breath testers, another in- direct measure with questionable accuracy .This 90% accuracy number 

### becomes further suspect when the BAC was dropped to 0.08 mg % (State of Florida Test) and again to 0.05 mg % (Colorado Test,}(3),because logically and realistically, there would be some change in accuracy, or a higher percentage of people who would test positive as the BAC level is lowered, but the percentage stayed the same.
In most states, when an individual fails the SFSTs and then refuses a breath test, 

### they are assumed bythe governmentto have a BAC greaterthan the acceptable level of0.08 mg%. This means that 20% (1/5) to 35% (1/3) of all people who failed the SFSTs and then refused a breath test would lose their license, although their 

### true BAC would have been lower than the legal limit of0.08 mg % if it was done 

### by a direct test, such as blood. There is increasing political and financial pressure by the National Highway Traffic Safety Administration (NHTSA) for the states to drop the level at which legal intoxication is determined to 0.08 mg % and to continue to use the SFSTs to measure this level. The Southern California Research 

### Institute (ANACAPA Science, Inc.) has done studies ofthe SFSTs at the 0.08 mg% level in Florida in 1995 and subsequently atthe 0.05 mg% level in Colorado in 

### 1997 (2) Their findings, which again combined individuals both above and below the sought after BAC level of 0.08 mg% and 0.05 mg%, promoted over 90% accurate information. These percentages again are misleading because they 

### grouped individuals both above and below the sought after BAC level in providing the results. They are suspect because in a normal statistical distribution of 

### subjects, the percentage ofpeople who test positive should increase significantly

as the level of BAC is lowered from 0.1 mg% to 0.08 mg%, and then to 0.05 mg %,

### but infact itremains almost the same. Eventhe Horizontal Gaze Nystagmus Test which is touted by NHTSA as the most accurate test ofall three SFSTs and is not 

### subjected to voluntary control, reflects little change inthe percentage of individuals testing positive as the BAC levels drops from 0.1 mg% to 0.08 mg% to 0.05 mg %. .


### The Horizontal Gaze Nystagmus Test has been viewed as the premier Standardized Field SobrietyTest by the Southern California Research Institute 

### because it has a claimed higher accuracy rate than the othertwo tests and appears to be totally out ofthe individual's conscious control.


### To understand what HGN is, it is necessary to review how the test is done 

### and what neuroanatomically and physiologically is involved in a positive test result. Understanding this will help explain why there are many otherfactors 

### besides alcohol and drugs that can precipitate orexaggerate HGN.
Adams' "Textbook of Neurology" defines nystagmus as the "involuntary rhythmic movements ofthe eyes". The NHTSA Driving While Intoxicated Detection and Standardized FieldSobrietyTest Instructor and Student Manuals 

### define Nystagmus for lawenforcement as "the involuntary jerking ofthe eyes, occurring as the eyes gaze toward the sides.(s,6)." These Manuals go on to say" nystagmus is a natural, normal phenomenon, they merely exaggerate or magnify it." Interestingly, the Southern California Research Institute first called this 

### "Alcoholic Gaze Nystagmus, most likelybecause there are so many other causes for it besidesjust alcohol.


### In a physiological sense, HGN occurs when the eye follows an object. 

### The slow, natural tracking ofthe object (smooth pursuit) stops, the eye quicklydarts back toward the midline, then returns to slowly trackthe object a little further to the side, then quickly darts back to the midline, and this process continually repeats itself. This is a 

### normal phenomenon, which should occur in all people as the NHTSA Driving While Intoxicated manuals point out. There are two phases in this process. A slow, tracking phase, or "smooth pursuit", in which the eye follows the object away from the center, and a fast,

### compensatory phase, when the eye flicks back toward the midline, the position it had originally started from. The neuroanatomy ofthis process is very complex and involves the Labyrinth System of the 

### Inner Ear, the Optic Nerve, the Extra-Ocular Muscles of the eye, the Cerebellum ofthe brain, the Pons ofthe Brain Stem, as well as the 

### neutral pathways that connect these structures.


### The Retina ofthe eye must see the object without distortion, and have that message register in the optic region ofthe brain. Ofthe Extra-Oculomotor Muscles, the Lateral and Medial Rectus ofeach eye must be the only muscles involved injust lateral movement, tracking, and actual Horizontal Gaze Nystagmus. Ifother muscles ofthe eye are used or stimulated, then there is no 

### checking of horizontal gaze. Asthe eye moves to follow the object, the nerves and muscles send information via neural pathways to the Cerebellum about the amount ofmovement, with the Cerebellum then sending back information to the 

### eye muscles about how much more or less to move, and this feedback process continues again and again.


### The Labyrinth System of the Inner Ear simultaneously transmits information to the Cerebellum and the Pons about the body's position, trying to correlate that 

### with the information it is receiving from the Oculomotor muscles about the amount ofeye movement, and this process continues again and again. This is very fast and very complicated, and it involves multiple feedback loops and transitions 

### (1,11,12). Anything that affects these neuroanatomical structures or neural pathways will influence how Nystagmus will be manifested.

The NHTSA HGN Test Itself


### The NHTSA Horizontal Gaze Nystagmus Test must be done without glasses or contact lenses, and eye problems can invalidate the results. A light or pointer is 

### held 12 inches away from the (face, at the mid point ofthe eye and slowly moved toward one side and then the other. The individual receives a total ofup to six 

### points based on poor performance inthree different aspects ofthe test, although

### only four are required to fail the test, which would determine that their BAC was 

### overO.lmg %,0.08 mg%, or 0.05 mg%, depending on the study:



## IThe eye tracks laterallytoward the side, and ifthe slowtracking is not smooth, the individual receives one point for each eyethatthe trackingis not smooth.

2 The object isthen held to the far lateral side of each eye, and ifthere is 

## jerky movementin that corner ,the individual is again scored one point for each eye that there is significant movement.



## 3 Finally, the angle fromdirectly in front that nystagmus beginsis 

## determined, andifitoccurs before a45° angle, theyagain receive one point for each eye that it occurs in.

Scientific Basis for the


### Blood Alcohol Level Influence on HGN 

### Several valid scientific research findings have provided the basis for 

## understandingthatalcohol can influence Horizontal Gaze Nystagmus (HGN). These include the Effects ofAlcohol on the Inner Ear and the Effects of Alcohol on Muscles.

1. Alcohol Effect on the Inner Ear


### Real science has shown that the alcohol level inthe blood will be different than 

## thealcohol level in theLabyrinth SystemoftheInner .EarduringtheAscending and Descending phase ofalcohol use because alcohol is slowtopassthroughto the blood brain barrier .This means that during theAscending

### Phase of alcohol use, when alcohol is being ingested, the blood will have a higher level of alcohol than the Inner Ear's Labyrinth System has. Then, during the 

## Descending Period of alcohol use, when alcohol is being metabolized more rapidly than it is being ingested, the alcohol level in the Inner Ear'sLabyrinth Systemwill 

## be higher than that in the blood.This disparity between the alcohol level in the blood (BAC) and that in the Inner Ear causes the eyes to move in a non-smooth, 

## less rhythmic manner, undershoot and then overshoot the targetthey are following whichgives a "jerky • non-smooth appearance called Horil.ontal Gaze 

## Nystagmus. To the non-medical observer, the eyes have troublefollowing, or haveproblems compensating, and appear to actlike "amarble rolled on sandpaper" as the NHTSA Student Manual states,(5,6).

2. Alcohol's Effect on Muscles 

## Alcohol is a Central Nervous System Depressant, and as such can have a slowing effect on nerve transmission and muscle movements. The effect of alcohol is 

## thought to slow the "smooth pursuit" ortracking movementof the eye,which wil exacerbate normal nystagmus and make it look jerky.This depressant effect is 

## though to increase as one's alcohol level increases, and itis anotherscientific finding which helps to understand why Horizontal Gaze occurs.
These two scientific facts explain why alcohol inthe blood can cause an 

## exaggeration in normal nystagmus, which is the basis for the HGN of the SFSTs. Theselegitimate scientificfindings were then extended by assumptions that the Southern California Research Institute made to validate their own test results. Real science and research, however, has also proven that many otherfactors can 

## cause orexaggerate Horizontal Gaze Nystagmus in anon-intoxicated individual.. In fact, these other causes ofHGN are very important because they speak to the 

## validity of the law enforcement determination ofIntoxication , and subsequent revocation of a Driver's Licenseand/or a DWI conviction. They may also be too 

## complex, involving somany neuroanatomical structuresand be soinfluenced by past and presentmedical issues, that non-medical personnel, such as law enforcement officers, simplycannot accurately perform it.Other Causes of HGN

Medication 

## Alcohol, its effects, and how to score an individual's performance on the HGN test 

## is the primaryfocus of the NHTSA DWI Law EnforcementTraining Manuals. These manuals alsoacknowledged that Barbiturates and PCP could cause Nystagmus 

## (4,5) Many prescription medications canalso cause orexacerbate Nystagmus, but are not usually queried about bythe examining officer, including pheny-toin 

## (seizure medication), lithium (mood stabilizer), antihis-tamines(allergy medication), and barbiturates (seizure medication). Ofcritical import here is to 

## understand that although thesedrugs exaggerate, enhance and causeNystagmus, they also help the "abnormal" person to functionnormally. Ifthe individual were stopped and tested by a lawenforcement officer for HGN, as inthe case ofthe 

## Defendant they wouldtest positive, although they are in fact on medication to help them function normally.

Retina, Optic Nerve Damage 

## The Retina and Optic nerve may bedamaged sufficientlytocause or to impairthe HGN test but not be damaged enough to impairan individual's ability to see to drive. Diseases canimpairthe Macula. This is the central part of the retina, which is the part of the eye that has the most sensitiveOptic Nerve cells and which helps an individual to accurately focus on an object. Any disease such as Albinism, 

## Arthritis ,RetinatitisPigmentosah, Diabetes, and Multiple Sclerosis" can affect this 

## part of one or bothRetina andin turn cause or exacerbate HGN. People who are 

## born with eye problems such asStrabismus (cross-eyed) orwho have had eye or lidsurgery may normally have Nystagmus, which would be unrelated to alcohol use(i2). Exaggerated Nystagmus may also manifest in individuals such as miners 

## who have worked in the dark for long periods of time.

The Extra-Ocular Muscles

### There are six Extra-Ocular muscles for each eye that move the eyeball itself. These

are the Medial Rectus and the Lateral Rectus muscles, the ones used in Horizontal 

### Gaze Nystagmus, as well as the Superior Oblique, the Superior Rectus, the 

## Inferior Oblique and the inferior Roctus muscles. The NHTSA HGN test issupposed 

## to be designed onlyto testthe function of just two cranial nerves (III and IV) as well as just the two solitary, opposing Occulomotor musclesthey innervate, the Lateral and Medial Rectus muscles of each eye(4,n). Those two Occulomotor 

## muscles of each eye are "yoke" muscles inthatthey worktogetherwhile 

## opposing each other .In this manner, one contracts while the other relaxes, 

## enablingthe eye to move from side to side. In turn, the two eyes must also work togetherin order for them to focus on and to follow an object for the test. The disparity between each eye's performancesis viewed as an indication of intoxication in the DWIInstructor and Student Manual. Infact, any problem with 

### these nerves or muscles can cause an exaggeration in Nystagmus, or a disparity 

## between one eye's movement and the other .Thecause of this could be surgery in childhood to correct eye problems, damage to the muscles ofone eye, or even a 

## "lazyeye, "which will causeNystagmus, although the individual had not been drinking. 

## Alcohol, whichdepresses the Central Nervous System, may affect the smooth coordination ofthese two opposing muscles and cause a breakdown ofthe balance between them, which many exacerbate nystagmus. The NHTSA HGN 

### examination isdone above eye level, which iswhatthe NHTSA Manuals and Videos recommend. This height brings into playthe four other Occulomotor 

## muscles (the SuperiorRectus, the Superior Oblique, the Inferior Rectus and the Inferior Olique muscles) and other cranial nerves (the Trochlear and branches of the Occulomotor). 

## Position the stimulus approximately 12-15 inches from the suspect's nose and 

## slightly above the eye level. Checkthe suspect's eyes for the abilityto track 

## together. Move the stimulus smoothly across the suspect's entirefield ofvision. Checkto see ifthe eyes trackthe stimulus together or one lags behind the other, 

## ifthe eyes don't tracktogetheritcould indicate apossible medical disorder, injury, or blindness.

## Testingin this mannercomplicates and invalidates the HGN test because not just the Lateral Rectus and Medical Rectus Occulomotor muscles are beingtested. The
test as it is taught and as the NHTSA Manual instructs is then invalid.

Inner Ear 

## An intact InnerEar Labyrinth System is essential for differentiating between 

## normal and abnormal Nystagmus. Deafness, tinnitus (ringing in the ear). Meniere's disease and injuries to one or both ears from trauma or infection will 

## affect the inner ear and may damage the Labyrinth System. These changesin turn will register as HGN on SFSTs testing, (i,i2).Law enforcement officers atthe side of 

## the road are not trained to and do not take a detailedmedical history about childhood illness, past traumas and other medical problems when the individual is 

## beingjudged for intoxication. Theindividual himselfmay not even be aware of 

## these medical syndromes or has compensated for them, such that they present

no problem for the person except when he istested for HGN.

Neuroanatomical Structures and Neural Pathways 

## The Pons area of the Brain Stemconnects manyaspects of the Autonomic Nervous System and the Voluntary Nervous System. Itreceives and sends 

## impulsesfromLabyrinth System of the inner ear, the Extra-Ocular Muscles, and the Ocular Cortex where what the eye actually sees register.
The Cerebellumconnects to the Brainstem, and is also part ofthe 

## feedback systemwhich receives input about nerve and muscle activity, and then modulates or counterbalances each muscle's contraction with its 

### relaxation, the contraction ofthe others, etc. There are millions of nerves 

## that connect and feed- back messages fromthe eyes, the Occulomotor 

## muscles, the Cerebellum, the InnerEar's Labyrinth System, and the Brain Stem. Interference with any of the neural pathways between these diverse 

## parts of the head can causeHGN. Manyfactors, including vascular

### problems, minor strokes, pressure from tumors, generalized demyelinating diseases such as Multiple Sclerosis, infections, and injuries from trauma to the head or neck affect these neural pathways and inturn their ability to send and receive data. Small bleeds (such as those caused by hyper 

### tension), smalltumors, and even injuries (such as those caused by minor head trauma, from boxing, automobile or sporting accidents) can cause 

## damage which will resultin nystagmus, but would be unrelated to alcohol

use. Which in the Defendants case would have been the cause since she 

## was just hit from behind by a 18 wheeler and she had not been checked out byEMT prior to taking the HGN test. Cerebral palsy ,congenital cerebella problems, demyelinating diseases such as MultipleSclerosis, Rheumatoid Arthritis and Parkinson's Disease, and even late onset 

### inherited disease can also damage the cerebellum and cause a disruption in 

## the feedback process, whichwill exaggerate normal nystagmus, and may be seen when tested for HGN. 

## Anythingthat interrupts or damages any part of this system, be it frominfection (childhood or adulthood), including meningitis, encephalitis, an innerear infection, or even high temperature seizures (1,4), can cause sufficient damage for an individual to have abnormal nystagmus, or HGN, although in most other 

## aspects of an individual's functioningthey are of littleconsequence.

Summary 

### The Standardized FieldSobriety Tests, which include the test of Horizontal Gaze Nystagmus (HGN), are used bylaw 

### enforcement as ifthey were direct measures of blood alcohol content, initially atthe 0.1 mg % level, now at the 0.08 mg % level and soon at the 0.05 mg % level. The assumption isthat

an individual who fails the test is intoxicated by definition, and the refusal to take a breath test isjustification for mandatory loss of a driver's license in most states. In reality, Horizontal 

## Gaze Nystagmus is an indirect and circumstantial estimate of

### not only .but also the presence ofalcohol, Blood Alcohol 

### Content, as are altother FieldSobrietyTests. Nystagmus itself is a normal process. It can be exaggerated bythe influence of alcohol and drugs. Nystagmus, however, can also be influenced 

## by manyotherfactors, including medication to help an individual function such as in the case ofthe Defendant who


### was prescribed Lithium , their past and present medical 

### condition inthe Defendant's case her Rhuematoid Arthritis, and the environment they are tested in. These otherfactors 

## might cause a person to be judged intoxicated when they are not, and they are often ignored inSFSTtesting as inthe case of 

## the Defendant Nance. The process by which nystagmus occurs is a very complex feedback loop that involves neuroanatomical 

### structures inthe Brain. Inner Ear, Brain Stem, Rectus ofthe eye and Extra-Ocular muscles, as well as the millions ofneural pathways that connect these structures. Factors that have in 

### the past affected the individual's eyes, ears, and nervous system may exacerbate Nystagmus, and can cause an 

### individual to failthe HGN part ofthe SFSTs. Moreover, the 

## level at which a pointer is held to perform the test brings other muscles into play and invalidates the results. According to NHTSA statistics, at least 20 to 30% ofall individuals who fail 

### the HGN test and refuse a breath test will not only unfairly losetheir license, but also possibly suffer a wrongful DWI conviction, because their BAC would have 

## been belowthe 0.08mg% level used to determine intoxication. They will therefore be arrested for skewed HGN probable cause, but are not intoxicated and should 

## not have been arrested on the basis ofthe HGN test. Theywill have "false positives" and will be assumed guilty, ratherthan assumed innocent" The built in 

## inaccuracy ofthese test maywell be the reason the U.S. Department of 

## Transportation continues to put the disclaimeron each new study they sponsor, stating: "The United States Government assumes noliabilityfor the contents or

use thereof." (15)

### Insummarythe State did a "very sloppy" job of investigating the accident. They 

### failed to get a search warrant and to theyfailed to fullyinvestigate what really happened that night. What we have here is a case of a young woman who was hit from behind by a 18 wheelerwho was free to go. He (the driver ofthe 18 wheeler) was never asked to perform any sort of field sobrietytest unlikethe Defendant even though he was the cause ofthe accident. The State used two nonstandardized tests that based on research have no probative value 

### determining ifsomeone isintoxicated. The State used a HGN testthat based on research ifcertain medical disorders are into play such as Arthritis or a person 

### who has been prescribed Lithium as inthe case ofthe Defendant those test are 

### invalid as well. And finally you have a officer who asked the Defendantwhere she

was headed and she told him "home" he assumed the Defendant was intoxicated 

### because he was thinking she was lost when in allactuality she was trying to tell him she was headed home to Mount PIeasant where she is from. Which in her



### case would be "home' to her. Therefore because the State has the burden of 

### evidence to prove BEYOND AREASONABLE DOUBTthatthe Defendant was intoxicated where inthis case it is clearly obvious they have failed to do. The 

## Defendant praysthatthis CourtREVERSE thejudgment and REMAND the case back to the trial court and render ajudgmentof acquittal. Inthe alternative, 

## Appellant praysthatthe cause be remanded for a new trial or forfurther proceedings inaccordance withthe law of this Court's ruling.PRAYER FOR RELIEF 

### Forthe reasons setforth above, Appellant prays that this Court REVERSE thejudgment and REMAND the case back to the trial court and render a 

## judgmentof acquittal. In the alternative, Appellant praysthatthe cause be remanded for a new trial or forfurther proceedings inaccordance with the law and this Court's ruling.

Respectfully submitted:

Jessica Nance

P.O. Box 211362 

### Bedford, Texas 76095

214-650-4387CERTIFICATE OF COMPLIANCE


### Icertify that this document was prepared with Microsoft Word and that according to that program's word countfunction, the sections covered by Tex. R. App. P. 9.4(i) contains 10,028 words.

JESSICA NANCECERTIFICATE OF SERVICE 

## Ihereby certifythat atrue and correct copy of the above and foregoing has been forwarded to the following persons listed Jason A. Duff2615 LeeStreet PO 

### Box 11 Greenville, Texas 75043, State of Texas Jeffery Kovach 2500 Lee Street, Greenville, Texas 75401, and the Sixth Court ofAppeals 100 North State Line Ave. Ste. 20 Texarkana, Texas 75501.



# JESSICANANCE (-< j-S^L / LCERTIFICATE OF SERVICE
Ihereby certify that a true and correct copy of the above and foregoing has been forwarded to the followingpersons listed Jason A. Duff2615 LeeStreet PO Box 11 Greenville, Texas 75043, State of Texas Jeffery Kovach 2500 LeeStreet, Greenville, Texas 75401, and the Sixth Court of Appeals 100 North State Line Ave. Ste. 20 Texarkana, Texas 75501. 

# 4ca-zn'cu MaftCu vM^I^

JESSICA NANCE

/•>

## EXHIBIT ONEEXAM UNDER OATH MARCELLINE BURNS TM Multi-Page FRIDAY, APRIL 17, 1998

1 DECLARATION 2 3 4 5 I hereby declare that I am the deponent in the 6 within matter; that I have read the foregoing 7 examination under oath and know the contents 8 thereof. AndI declare that the same is true of my 9 knowledge, except as to the matters which are 10 therein stated upon my information or belief, and H as to those matters, I believe it to be true 12 I declare under thepenalties of perjury of 13 the State of California that theforegoing is true 14 and correct. 15 Executed on the day of 16 19 ,at

- 17 18 19 20 21 W1TNLSS 22 23 24 25 Page 61

1 

### 2 I, LoriRaye, A Certified ShorthandReporter 3 for theState ofCalifornia, doherebycertify: 4 That prior to being examined,MARCELLINE 5 BURNS, Ph.D., thewitness namedin theforegoing 6 examination under oath was by me duly sworn to 

### 7 testify the truth,thewhole truth andnothing but 8 the truth pursuantto Section No. 2093 of the Code 9 of Civil Procedure; 10 That said examination under oath was taken 11 before me, at the time and placetherein setforth, 

### 12 and wastaken down by mestenographically and 13 thereafter transcribed; 14 I further certify that I am neither counsel 15 for, nor related to, any party to said action, nor 16 in anywise interested in the outcome thereof. 17 In witness whereof, I have hereunto 

### 18 subscribedmyname this 5th dayof May1998. 19 20
21 -

22 L6WJUVS 23 CSRNo. 7052 24 25 Page 62 

### LORI RAYE COURTREPORTERS (818.508.1418) Page61 - Page 62EXAM UNDER OATH MARCELLINE BURNS TM Multi-Page FRIDAY, APRIL 17, 1998 1 with misguided pride that they've made the test a 2 little more difficult, orchanged it. I don't like 3 to discourage hard-working police officers, but I 4 have to say to them, "That's very interesting, and 5 it may be that your test is better, but we don't 6 know that So please don't do it." 7 MR. BAIR: Maybe they're getting down to .06, 8 which may be the next test. 9 THEWITNESS: Ifthe American Medical 10 Association and MADD has its way, we're going to 11 .05. 12 BY MR. KAPSACK: 13 Q. The third test I think is where we
14 were. 15 A. Third is the One-LegStand, and the 

### 16 suspect is told to standwiththeirfeettogether, 17 to lift one leg, either one, approximately six 18 inchesoff theground, point the toe, watchtheir 19 toe, their foot at all times, and to count. 20 Now, this is a place whereNHTSAhas 21 made achange. Ourinstructions were —I don't 22 think it's a significant change, but just so you're 23 aware of it, originally we said you count 1,001, 24 1,002,1,003, until you reach 1,030. 25 We wanted to be sure they held that Page 57

1 stance for 30 seconds because it turns out that 2 people at .10very often can hold it to 20 or 25 3 seconds. It's only when theattention begins to 4 waiver that the balance gets messed up, So it's 5 critical to hold it for 30 seconds, and that was 6 the point of the counting. 7 . NHTSAhasjustwithin the last couple 8 years changedthat instructionso that they're now 9 told "Count 1,001,1,002, 1,003, until I tell you 10 to stop." And the officer now times it for 30 11 seconds and then records the count. In other 12 words, ifa person was at 25, they write down 25. 13 And that's what they do. 14 Q. You had been giving us points before. 15 Do you recall the points on this one? 16 A. I believe it's two. 17 Q. Again,gettingback to one of the 18 broader themes, the person is supposed to hold 19 their foot six inches off the ground, but the six 20 inches isn't the key here? 21 A. No. 22 Q. It's holding it off the ground? 23 A. Correct. 24 Q, The officer should not be out there 25 measuringwhetherit's five and a half or eight 1 inches? 2 A. No. You have to give them some 3 instruction. I mean, there's a difference between 4 sixinches andstraight out. But if it's five and 5 a half inches or seven inches, it's not going to 6 make adifference in thetest I suppose there's 7 some point like a fulcrum at which it's easier to 8 balance,perhaps. I don't know. But the 9 instructions are six inches, approximately six 10 inches off theground,
n Q. In allthese tests, again, common 12 sense plays an important role. For instance, you 13 know, for any of these tests, I would guess, 14 standingon one leg came to my mind immediately if 15 it's beingdone in a placewherethehighwaygoes 16 in amountain gap,and you've got25-mile-an-hour 17 winds. It's probablynot the best placeto give 18 thetest, and that's going to have someeffect 19 A. It might be difficult, but, you know, 20 the field tests we did in Colorado, one ofthe 21 things we were interested in was, are these tests 22 valid in Colorado mountains where it snows and 23 blows and does all kinds of unpleasant things? And 24 we didn't find any significant effect of the 25 weather, except that officers tended to make a Page 59

1 mistake by letting people go whoshouldhave been 2 arrestedif they didn't have on adequate clothing. 3 In other words, if it was cold and they didn't have 4 a jacket, theytended to make an error byreleasing 5 them. 6 Q. By assuming some ofthe mistakes were 7 as aresult of being cold? 8 A. Either that, or theyjustfelt sorry 9 for them. 10 MR. BAIR: Didn't complete the tests? 11 THEWITNESS: Just didn'tkeep them - that's 12 the only thingI canassume. Ifofficers make an 13 error, it's far more likely to be a release than an 

### 14 arrest. They don'tarrestverymanyincorrectly, 15 but theyrelease enough incorrectlythat,as road 16 users, we should worry. 17 MR.KAPSACK: I'd like to take a five-minute 18 break. 19 20 21 22 23 24 25 (BRIEF RECESS) MR. KAPSACK: That's all we have. Thank you.

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l approximately 12inches in front of their face, 1 instructions. And there are eight —I believe 2 elevated slightly so they'll open their eyes. 2 there are eight errors that can be scored. Two 3 Because the point is, you have to see their eyes. 3 errors are reason to arrest 4 Then he or she moves the stimulus

—how shall I 4 BY MR. KAPSACK: 5 describe it?

—back and forth in front ofthe 5 Q. Let me interrupt you for a second 6 eyes laterally and observes that individual's 6 here. We talked about this a little bit earlier. 7 eyes. 7 You said they should take little 8 First ofall, the determination is 8 steps, and we talked about how the officerhas to 9 made whether the eyes can track the stimulus 9 use common sense. 10 smoothly, or whether theyjerk as they move. I'm 10 A. He demonstrates that, by the way. 11 tempted to use my hands because I teach it. So 11 Q. Right. 12 lack of smooth pursuit is one sign. That's worth 12 I have seen this where the officer has 13 one point in each eye. 13 prescribed that it must be a specific number of 14 The second sign is the distinct 14 steps. 15 jerking at maximum deviation. In other words, when 15 A. To turn around? 16 the eyes have been moved as far as they can go to 16 Q, To turn around. I have seen and heard 17 the side, and then held there for about four 17 them say "Youmustpivot on your foot using three 18 seconds, is there a distinctjerking, notjust a 18 steps to turn around." 19 little tremor? Because that can occur because it's 19 A. I'm not aware ofthe source ofthat. 20 an uncomfortable position. There needs to be a 20 Q. This is part of theproblem, little 21 distinct jerking that persists. 21 bits that have been added and taken away that have 22 And then finally, the person who is 22 occurred in some places. 23 administering the test looks for the angle of gaze 23 A. Let me say that I don'tthink that 24 when there's the first onset of jerking. In other 24 would do any harm unless he scored an errorfor 25 words, has the individual deviatedhis eyes 40 25 failure to take threesteps. If hewants them to Page 53 Page 55 1 degrees, 45 degrees or 30 degrees? Because it's 1 take three steps, I don't think that's a big deal. 2 the relationship between that and the BAC. 2 But he has no basis to score against them for 3 MR. BAIR: Each one ofthose is worth one 3 taking four because that's not part of the 4 point in each eye? 4 standardized testing. 5 THE WITNESS: That's correct. So a maximum of 5 Q. Thatgets back to your testimony 6 six, and four points is a basis for taking them 6 before, because that's what gives it its 7 in. 7 reliability. 8 The Walk-and-Turn test isjust what it 8 A. That's what gives it its predictive 9 sounds like, a test of the individual's ability to 9 power. 10 walk and execute a turn and return. They're told 10 Q. Predictive power? 11 to put the left foot on the line, put the right 11 A. "Reliability" means something 12 foot in front of it and stand in that position 12 different to me. 13 while the officer gives the rest of the 13 Q. I like that, "predictivepower." 14 instructions. 14 A. Yeah. Whatyou're trying to do is 15 He then instructs and demonstrates by 15 predict accurately whetherthis person is going to 16 showing what heel-to-toe is. He tells the 16 have a breath test that shows above orbelow .10. 17 individuals, "I want you to take nineheel-to-toe 17 Q. IfI, as an officer, score something 18 steps along the line. Watch your feet at all 18 as an error that's not considered an error under 19 times, leaveyour armsat your side, and count your 19 the standardized rules, then my power of 20 steps aloud. When you get to the ninth step, turn 20 predictability is not very good. 21 around, take small steps turning around and come 21 MR. BAIR: Or has been dirninished. 22 backalong the line in the sameway with nine 22 BY MR. KAPSACK: 23 heel-to-toe steps. Do youunderstand?" 23 Q. Could begetting worse, because we've 24 Andifthe individual says "I don't 24 never studiedthat aspect. 25 understand," then the officer repeats the 25 A. Could be. Sometimes officers tell me Page 54 Page 56 

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### Multi-Page1 FRIDAY, APRIL 17, 1998

1 recreate all the same variables in the laboratory 2 that you have atroadside, whichis one of the 3 reasons I wantedto do a field study. 4 Q. And conversely, in the laboratory, you 5 don't have some of the distractions that you would 6 have on the roadside? 7 A. That's true. 8 Q. For instance, I would assume you kept 9 thelaboratory fairly welllit It's not the kind 10 ofnighttime stop that officersget involvedin. 11 A. True. Another important variable is 12 that those officers hadjustbeen trained, with one 13 exception, and that was in the secondstudy. None 14 ofthem had heard ofHorizontal Gaze Nystagmus 15 before. It takes a period oflearning to believe 16 what you really see for officerswho are trained in 17 nystagmus. So my concern, my interest was in 18 finding what officers who had used the test battery 19 for a period of time were capable. 20 (DISCUSSION HELD OFFTHERECORD)
21 BY MR. KAPSACK: 22 Q. There also must be a period of 23 institutional learning for whichmost police 24 departments arenotoriously slow. When you talk 25 about confidence, the officers had to have Page 49

1 confidence when they came to you individually. I'm 2 sure the first few times you told the officers, 3 "You're going to take a stimulus and move it in 4 front of their eyes," they must have looked at you 5 like you were crazy. 6 A. I'm sure they did. 7 Q. But then when they went back to their 8 departments and they said, ,TNo, it really works," 9 I'm sure the rest ofthe officers looked at them 10 like they were crazy, too. 11 A. There is a period of accepting. 12 Police officers are notorious for not accepting 13 newfangled ideas, so to speak. 14 Q. When these tests are done on the side 15 of the road, is there a set standard or a given 16 margin that the officer should use regarding 17 mistakes or failures in the field sobriety tests 18 that he should attribute to the environment, ifyou 19 understand me? 20 A. I understand you. I'mtrying to think 21 ifthere's any such thing. 22 The only thing that's required for 23 nystagmus is that the suspectbe able to see the 24 stimulus and the officer be able to see his eyes. 25 It doesn't matter ifthe wind is blowing orit's Page 1 raining,you know. Those thingsjust don't
2 matter. 3 Walk-and-Turn, preferably, is done on 4 a flat, dry surface. Ifit cannot be, then I think 5 the officer is going to have to take that into 6 account But to my knowledge, there are no 7 particular guidelinesthat - there's been no 8 research that says that if the pavement slopes X 9 number of degrees, that cannot been done. But I 10 don'tthink it would be possible to do it
n Again, I think it's a matter of common 12 sense, but it has not been a matter of research. 13 MR. BAIR: Footwear would make a significant 14 impact on a study with regard to the 15 Walk-and-Tum. 16 THEwrTNESS: It can, and I think it depends 17 on theindividual. "Depending onwhere it is and 18 the circumstances, officers very often give 19 somebodywho is wearinghigh heels or boots with 20 heels the option of taking them off.
21 BY MR. KAPSACK: 22 Q. I would assume that Walk-and-Turn 23 would be hard in a six-inch spike heel. 24 a. Unless you do every day, then it's a 25 piece of cake. Page 51

50 1 MRBAIR: Tennis shoes may be difficult, 2 then. 3 BY MR. KAPSACK: 4 Q. Have you ever been asked by NHTSA, or 5 has there ever been a proposal that was requested 6 regarding any ofthe other tests that have come and 7 gone,such as, I believe the Hand-Pat was 8 mentioned, or a written alphabet or anything like 9 that that you know of that you've been involved in? 10 A. I've neverbeen asked to do any 11 research with those. It's possible —I don't 12 remember the report from the more recent study for 13 the .08. They did use some other tests, but I 14 don'tremember now what they were. 15 MR. BAIR: I think Ijustwould like to get 16 down specifically what those three tests are. If 17 youcould,tell us thewalk out nine steps, walk 18 back, exactly what those tests are so that we have 19 a record of exactly what those tests are that your 20 group came to the conclusion were accurate. 21 THEWITNESS: Well, HGN, which is a jerking 22 movement of the eyeballs, is administered by having 23 the individual stand with their arms at their side, 

### 24 holding his or herhead still, and theofficer or 25 person administering thetestholds thestimulus Page 52 

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Q- And that's 18 years ago. What's the next? a. Well, the next step is NHTSA's step, and I'm not really the person to tell you exactly what and how and why they did it, except as an outsider, to say that training began sometime thereafter of law enforcement nationwide. Q. I take it throughout this you're still 9 involved in it to a certain degree. 10 When is the next time you get a 11 contract or do a study, or anything along those 12 lines? 13 A. Well, the next time I actually worked 14 for NHTSA that involved these tests was with a 15 study of the Drug Recognition Program, of which 16 these tests are a component, and that was in 1985. 17 That's the only work I directly did for NHTSA, 18 except to appear as an expert. 19 Q. Getting back to the tests themselves, 20 why three? Is there any significanceto why - 21 you've already told us you found that some of them 22 were repetitive and things like that 23 Can the officer make a reliable 24 decision based on one test, or does he need all 25 three? Page

1 a. Okay. One ofthe reasons for three, 2 coming at it from one direction, is officers don't 3 have all night to do all the tests in the world out 4 there. There is a limit as to the amount oftime 5 they can invest in any one stop. So the 6 redundancy —I can'tjustify the redundancy. If 7 you're not getting more information, why do more 8 tests? 9 Coming at it from the other direction, 10 although Horizontal Gaze Nystagmus is almost as 11 good alone a predictor as all three tests, it's 12 kind ofa maximum of testing, whether roadside or 13 educational orpsychological ormedical testing, 14 thatifit's an important decision, you don't want 15 to base it, unless you have to, unless 16 circumstances force you to —but you would prefer 17 to have evidence from more than one test. 18 If you had very disparate results - 19 let's take anotherfield. If you went to your 20 physician and he had one test that said you have 21 diabetes and another that said you have heart 22 disease and anotherthat said you havecancer, I 

### 23 thinkhe wouldbe a littlepuzzled. He wouldlike 24 to see all his markers, blood tests, EKG's, 25 pointingin onedirection to give him some Page45

46 1 confidence in his diagnosis. 2 So instead of saying, "Horizontal Gaze 3 Nystagmus is a pretty good test and predictor; 4 we'lljustgo with that," you really need more 5 evidence, in my view. And I thinkthat's a pretty 6 widely held view. 7 So there were three, but as I said 8 before, we found adding to that of those six that 9 we identified didn't really improve predictions, so 10 we didn't have four or five. 11 Q. And you don'thave only one for the 12 reasons you just stated,becauseyou want a second 13 opinion, you want a little backup there? 14 a. Well, there's always a risk if you 15 rely on a single marker. Now, sometimes an officer 16 may have to. The circumstances may be such that 17 the only thing he can do is look at their eyes. 18 But let's suppose you have somebody who has a real 19 problem with balance because of some medical 20 condition,or you have somebodywho has really 21 strange eyes for some reason that I don'tknow. 22 But if that's the only test you have, you really 23 don't have any basis for a decision. 24 Q. Now, initially when you did the 25 experiments on these, they were done in the Page 47

1 facilities where you have a somewhat controlled 2 environment? 3 A. Absolutely. 4 Q. The overwhelming percentage,ifnot 5 100 percent of the time these tests are given on 6 the side ofthe road, how much of a factor does 7 that play? 8 A. That plays a factor mat works — 9 well, there's a number of factors workinghere,and 10 it works both ways. Certainly, in the controlled 11 environmentwhere there was no consequenceto an 12 officer's error, thathad to affectthe data. If 13 you look at the data, you can see it did. 14 One ofthe things that I'm often 15 challenged on is in the first experiment,they made 16 a lot of false alarms. That is, they said this 17 person is above .10when, infact, theyweren't 18 If you look at the data as I did, you discover that 19 theircriterion was really .08. In otherwords, 20 they were saying arrest at the point they saw 21 significant impairment. That was .08, not .10. 22 Theirsergeants are not going to be 23 upset and the lieutenantis not going to be upset 24 ifthey make an error, and this person is not going 25 back on the road driving impaired. So you can'tPage 48 

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1 believe we left offhistorically with your taking 2 the original six through the experimental stages, 3 and coming down with three. 4 A. Correct. 5 Q. And do you recall about when that was? 6 A. That report was submitted in June of 7 1977. 8 MR. BAIR; That was the '77 report? 9 THE WITNESS: Correct 10 MR. BAIR: And you did a report in '81? 11 THE WITNESS: That was the follow-up contract 12 that studied only the three.
13 BY MR. KAPSACK; 14 Q. So '77 comes, you've been submitting 15 progress reports to NHTSA all along, but now you 16 startwith the ride-alongs and the reading, culling 17 it down to 15, taking the 15 down to six, and the 18 six to the experiment. Now you say, "These three 19 are the three best, as far as we're concerned, that 20 we recommend should be the standardized battery," 21 NHTSA takes that and agrees with you? ' 22 A. I don't know ifwe used the word 23 "recommend." What you do in the final report is 24 you report everything you did. Everything. Who 25 thesubjects were, how you did theexperiment, your Page 41 1 data analysis. Then you reach some conclusions 2 based on that set ofwork. Those conclusions were 3 that those three tests were the best at 4 discriminating between above and below .10. 5 Q. So now four years goes by. 6 A. Couple years. A year and a half, two 7 years. 8 Q. Okay. I'mnot going to ask you what 9 NHTSA did, because you don'twork for them so you 10 don'tknow. But they turn around and say "We're U soliciting proposals again,"or something along 12 those lines? 13 A. Yes. 14 Q. This time, it's for a follow-up study? 15 a. What the second study was to do was to 16 do further research with the three tests to 17 standardize them. In otherwords, to standardize 18 them anddevelop the scoringand the administration 19 procedures so that theywouldbe as sensitiveas 20 you can make them. In other words, we have 21 identified the best tests. Now let's make it the 22 very best test battery we can makeit 23 Q. Some fme-tuning? 24 A. Somefine-tuning. 25 Q. Same type of thing, you submit your Page 42 1 proposal and you get it? Correct You get the contract? Correct. This was in what year, ifyou recall? Well, the final report was in '81, 7 which leads me to believe it would have been '79. 8 I don'trecall the exact date ofthe initiation, 9 but it was, again, a two-and-a-halfto three-year 10 project. 11 Q. So you spent about a year and a half, 12 two years analyzing data again, fme-tuning — 13 A. We ran a whole other experiment. 14 Q. You ran a whole other experiment? 15 Okay. Same type of experiment you described 16 before? 17 A. Very similar, except now we only use 18 three tests, not six, butthe design was similar. 19 We brought ten police officers in, trained themhow 20 to do it in a standardized way, recruited 21 subjects. Everything was double-blind. 22 One thing we did differently between 23 the two and the one is that in the second study, we 24 brought about 100of the subjects back for a second 25 session. The reason for that was to examine the Page 43 2 A. 3 Q.
4 A. 5 Q.
6 A.

1 reliability of the tests. "Reliability" being used 2 here in the statistical sense. It's very similar, 3 but has a very specific meaning. 4 Ifyou bring the subjects back, 5 produce the sameBAC,have them examined againwith 6 the same tests, sometimes by the same officer, 7 that's one kind ofcheck. Sometimes by a different 8 officer. Do you get the same results? 9 And you have to have two 10 administrations ofthe testbattery to the same 11 person in order to do that So that was an 12 addition. 13 Also, we did a small field study. Not 14 a good field study, not bigenough. There were a 15 lot ofthings that we didn't like about it, and 16 reported that we didn't like it because there 17 weren't funds to do it That was the second. 18 Q. So you submit that report, or the 19 report of all this in '81? 20 A. Correct. 21 Q. And you fine-tune the standardization? 22 A. Correct. 23 Q. And supplement your findings with the 24 additional data? 25 A. This time we had 297 subjects. Page 44 

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1 talking about here, has not changed. 

### 2 'Letme addthatthedrugrecognition 3 expert policeman uses five tests, and they include 4 the Finger-tc-Nose and the Romberg with a time 5 estimation. There are very good reasons for doing 6 that when you're looking for drugs because those 7 two tests give you informationwith regard to drug 8 symptoms that the others don't. But the 9 standardized field sobriety tests have not 10 changed.
11 BY MR. KAPSACK: 12 Q. I guess part of the questionthat I 13 was picking up is, has there been any time that 14 somebody said, "Hey, the officers in Alabama have 15just started doing this test, and they say it works 16 really well"? 17 Have you had that kind ofinformation 18 come to you and had a chance to evaluate that? Has 19 anybody said, "There's a new test that officers are 20 using," and you say, "Let's put it in the lab and 21 see ifit works"? 22 A. No. First ofall, I see a lot ofroad 23 tests usedby officers becauseI see arrest 24 reports. But you have to understand when you're 25 nonprofit research, you only do what somebody pays Page 37 1 you to do. You don't have the luxury of doing 2 anything else. 3 Q. I assume that you keep up to date in 4 this field, keep abreast ofany other studies that 5 are going on regarding — 6 A. Field sobriety tests? 7 Q. Yes. 8 A. To my knowledge, there are not any 9 others going on. 10 Q. Well, that was the follow-up 11 question. 12 A. To my knowledge. It's possible that 13 somebody somewhere is doing something, but I have 14 no information about that 15 Q. Obviously, some little sheriffs 16 office somewhere could be doing their own 17 experiment But if it was a majortype ofthing, 18 you would know about it? 19 . a. Yes, I would. Let me add, there has 20 been arevalidation or validation study for 

### 21 the .08. That wasdoneby aresearch group called 22 National Public Services Research Institute in 

### 23 t-andover, Maryland.. Itwas donetwo orthreeyears 2.4 ago. Essentially, they said, "Guess what? These 25 are the best tests." Page 38 1 Q. I know the answer, but we have to get 2 it down for the reporter. 3 When you say "Guess what? These are 4 the best tests," you mean the same three we've been 5 talking about? 6 A. Correct. 7 Q. Now, these standardized tests were 8 developed as an aid for officers to make an initial 9 determination in the field as to initially whether 10 or not the person had a blood alcohol level that 11 was over .1; correct? That was the initial

— 12 A. That's correct, .1 or above. „—_«, 13 Q. These tests, in and ofthemselves, 14 don't state whether the person is able to drive the 15 vehicle. In otherwords, these tests show there is 16 a likelihoodthat someone is over .1, and since the 17 medical community is pretty much in agreement 18 over .1 means you're not capableofoperating a 19 motor vehicle reasonably under the law, at least, 20 the tests can therefore be used for that, but 21 directly, the tests don't show the ability or 22 inability to operate a motor vehicle; correct? 23 A. Correct. Whatyou're asking is, are 24 these tests of driving? They are not Ifthey 25 weretests ofdriving, theywouldbe field driving I 

### Ptge39
1 tests. I can elaborate on the reasons and 2 everything behind that ifyou want, but they are 3 not tests of driving. They are tests of sobriety. 4 There's a whole series ofliterature that tests 5 alcohol and driving schools.

—— 6 Q. That's me nursing link, so to speak. 7 The sobriety tests will tell you the probable level 8 of alcohol, or at least the probable minimal level 9 ofalcohol, and then you go to the literature or 10 the expert or the doctor to say what effectthat 11 level of alcohol will have on aperson's mental and 12 physical abilities regarding driving? 13 A Well, the research over the years is 14 what led the legislators to choose the levels that 15 they did. And as the research accumulates, those 16 levels keep coming down. The officer is not 17 charged with making a decision about driving skills 18 at roadside. He couldri't. IhenVsno way you can 19 judge somebody in five minutes at roadside that you 20 never saw before to make a decision about their 21 driving skills. 22 What he is chargedwith doing is 

### 23 making ajudgment abouttheirsobriety orpresence 24 of alcohol or impairment by alcohol, ifyou will. 25 Q. To fill in the blanks a little bit, I Page 40 

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### FRIDAY, APRIL 17, 1998 1 nine steps, et cetera,those are critical because 2 the nature of the task requires them to assume the 3 stance on the line, to stand in that position while 4 they're given instructions, and the ability to 5 understand and follow the instructions is part of 6 the test. 7 Cnifth^y Hr^'t do that that's 8 important. And then whether or not the results 9 bnvr n?Tmirh mutinincfin ymi would lik? *hrw ** 10 bepomes problematic;—-— 11 Q. Let me see ifI can bring this to a 12 level that at least I understand. 13 For instance, nine steps is the 14 standard on a Walk-and-Turn; correct? 15 A. Correct 16 Q. Ifthe officertells the person to 17 take only seven steps instead of nine, but the 18 person falls offthe line each and every time, it's 19 not really important that he only had him do seven? 20 A. That's correct. 21 Q. But on the otherhand, ifthe officer 22 says "I want you to take 35 steps," and after 13 or 23 14 the guy steps offthe line, that kind of 24 deviation may mean that the officer's conclusion 25 that the person is under the influence or over a Page 33

1 certain level couldbe wrong because he's gone to 2 the point that it could be fatigue or something 3 else? 4 A. I think you got the meaning ofit I 5 frequently hear, for example, a lot of argument in 6 court about whether or not the stimulus for HGN was 7 held exactly 12 inches in front ofthe person. We 8 wrote into the instructions a distance as being a 9 comfortable focal distance so that the person is 10 not trying to focus too near and gets sick and 11 throws up, or is so far you're not sure. 12 You know, whether it's 11 and a half 13 or 13,1 don't really care. But you have to give 14 an instruction. In other words, hold the stimulus 15 approximately 12 inches in front, up a little bit 16 so you can see their eyes. You have to take these 17 things in context 18 MR. BAIR: But sortofalso within reason? 19 THE WITNESS: That's correct The 20 instructions, as they're written, are written for a 21 reason. You know, having them assume the position 22 on the line while they listen to the instructions, 23 that's an important componentof the test. How the 24 stimulus is held and how it's moved, those are all 25 part of the test. But a slight deviation of the Page 34 1 focal distance is not going to undermine the 2 results. 3 BY MR. KAPSACK: 4 Q. Okay. These instructions that you 5 talk about are the instructions that eventually 6 found their way into the NHTSAmanual? 7 A. Correct 8 Q. Did you get an opportunity

- and I 9 know we're jumping around a little bit, but did you 10 get an opportunity to review theNHTSAmanual 11 before it was put into mass publication to make 12 sure they didn't change any of the things you had 13 told them along the way? 14 A. Again, yes and no. The first manual 15 was sent to me, and I reviewed it, and there was at 16 least one thing in the manual which I thought was 17 an error and advised them of it It was 18 subsequently changed. But there have been 19 subsequent editions, and I'm not sure that I have 20 reviewed all of those, certainly not prior to their 21 release. I may have eventually obtained a copy of 22 all ofthem, butI didn't review them. 23 MR. BAIR: But,really, the conclusions from 24 your first study, more or less, have remainedthe 25 same? All ofyour additional studies have only Page 35

1 served to compound those conclusions or to 2 reinforce those conclusions? 3 THE WITNESS: There have been no substantive 4 changes in the tests or the - NHTSAdeveloped the 5 scoring; I didn't There have been some slight 6 changes. NHTSAmade some slight changes in 7 instructions that differ from what we did. Again, 8 I don't think they're substantive, and I don't 9 trunk they matter. 10 MR. BAIR: Have you done any tests regarding 11 the effectiveness of, like, the Hand-Pat test as a 12 method of testing the sobriety ofthe driver? 13 THEWITNESS: Unless the Hand-Pat was part of 14 that original series that we pilot tested, the 15 answer is no. I don'tremember ifit was in that, 16 but we didn't use it in either ofthe main 17 experiments. 18 MR. BAIR: So over the years, I guess, like 19 law enforcement has developed certain kinds of 20 tests, have you added any of them in and tested 21 their efficacy, or have you continuedto stick with 22 the three that you originally determinedto be the 23 most accurate? 24 THEWITNESS: Standardizedfield sobriety 25 testing,which includes the three testswe're Page 36 

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# r 1 to why it was leftbehind, so to speak? 2 A. It was a sensitive test, as I recall, 3 but itjustwasn't quite as good as the ones we 4 recommended. The analysis didn't show it to 5 improve the overall correlation with BAC,either. 6 Q. And the other one was Finger Count? 7 A. Right Same answer. 8 Q. Same thing, okay. 9 Gettingback to something you said, 10 when the officers first came in and you trained 11 them, this was the first time they had really 12 experienced a standardizedformat. 13 Is that important? 14 A. The standardized? 15 Q. Standardization, is that an important 16 factor?. 17 A. Yes, itis. 18 Q. How important? Is it critical, fatal, 19 sort ofimportant? 20 A. Well, if the tests are going to have 21 meaning as objective measures, they have to be 22 administered in a standardized way. 23 IfOfficer A - let's use 24 Walk-and-Turn, for example. 25 If officer A uses 10 steps down and 12 Page 29

1 steps back, there's nothing inherently wrong with 2 that, and it may give him a good idea whether he's 3 looking at an impairment or not, but it's not the 4 standardized instructions, Therefore, the qcvripE 5 and the observations don'trelate to any ofthe 6 research data or any nfthe acnimulaterl dataT^er 7 the years. So it's not that the officer hasn't

_ 8 gained any information; he doesn't have the same 9 pase to refer it to if he changes it. 10 q7 So it's almost as if he's creating a 11 new test because he doesn't have the scientific 12 data to back it up on? 13 A, Well, he's justnot doing it in a 14 standardized way. "Standardized" means everybody 15 is going to do it the same way every time. So if 16 it's used in Seattle or Miami, it's going to be 17 used in the same way andit's going to be subject 18 to the sameinterpretation andit's going to have 19 the same meaning when you get into court with it 20 Q. When you say "meaning," you mean as 21 far as reliability or accuracy? 22 A. I mean both. 23 Q. I think I understand. 24 Soifit's givenaccording to the 25 standardized criteria, then the conclusions that Page 30 1 come from it or the data that's collected from tha 

### 2 individualcanberelatedtothe datamatyou've | 3 compiled over the years because the officer who 4 gave it in that particular case did it the way it's 5 always been done in the experimental situations 6 correct? 7 A. In the experimental situation and in 8 the field situation, because now we have 9 accumulated a lot of years of experience. 10 Q. Okay. Is there any way that you can 11 adjust for deviation from the standard? For 12 instance, let's just say, speakinggenerally, that 13 there's a test that the standardized format 14 requires the officer to do five things or asks the 15 individual to do five things, but the officer only 16 does four of those so the officer actually gave 17 80 percent standardization. 18 Can you correlate that backto the 19 data? Can you say, "Since the officer was only 20 80 percent standardized, I should adjust thefinal 21 result," or does it mean the final result really 22 has no backing? 23 A Neither ofthe above.

—- 24 Q. Okay. 25 A. jjvoulri nf>t trvto "lTM** **hy «"y Page

1 percentacff P»i+ ^'rrthr itnnt it hng any mrnning 

### 2jdndofdepends onwhatthe deviation was. Letme 3 give you an example. 4 I once saw an officertaken to task, 5 and that's all I'll say about that because he used 6 the word "pivot" for the Walk-and-Turn. In other 7 words, he said, "Youtake nineheel-toesteps, 8 counting out loud, leave your arms to the side, 9 watch your step, and when you get to the ninth 10 step, pivot on that step and return in the same 11 manner." The argumentbeingthat's not the right 12 word, and you should tell him to turn around by 13 taking small steps. I don't think that makes much 14 difference.
-— 15 There are things that make a 16 difference; there are things that don't make a 17 difference. And I really thinkyou'd have to 18 evaluateit Some of the thingsthat people get 19 upset about don't make much difference. I mean, 20 use a little common sense. The word "pivot," in my 21 mind, is not aworld-shaking error. There are 22 other things that are more distressing. 23 If you don't givetheinstructions 24 properly, you don't tell them to leave their arms 25 at their side, count their steps out loud, take Page 32 

### LORIRAYE COURTREPORTERS (818.508.1418) Page 29 - Page 32EXAM UNDER OATH MARCELLINE BURNS TM Multi-Page FRIDAY, APRIL 17, 1998
1 person was above or below.10,which was the 2 statute in California at that time, and whether in 3 the real world, this person would be subject to
4 arrest. 5 Q. And again, obviously, mis was not the 6 type of thing that was done in one weekend or two, 7 but must have stretched out over some time? 8 A. It did. I don't recall exactly how 9 long. As I said, because it completely took over 10 ourfacility to have all thesepeople in our 11 facility, we did it on weekends, Saturdays and 12 Sundays. We had two policeofficersper day, and 13 as I recall, about 15 to 20 subjects, and we ran a 14 total of238. So it took a while. 15 Q. Again, you've already mentioned 16 double-blind and the fact that the officers did not 17 see the drinking, so you followed appropriate 18 scientific measures for theexperiment 19 A. We did. 20 Q. Again, out ofeverybody who was 21 working on the experiment throughout any of these 22 tests, the standard field sobriety tests or the six 23 that you were evaluating, nobody did it based on 24 any whim, it was all based on pure numbers? 25 a. Correct Page 25

1 Q. Did you drop any ofthe six along the 2 way, or did you wait for the entire experiment to 3 be finished to look at the data? 4 A. All ofthe subjects had at least five 5 tests. At this time, I don't remember how we 6 administered the Paper-and-Pencil test, whether it 7 wasjust people who had some problem with balance. 8 I suspect we a<hninistered it to everybody, but I 9 trothfully don't recall without looking it up. But 10 everybody had the complete set of tests. 11 Q. Then this experimental portion comes 12 to an end, and I guess that's where yourhard work 13 really starts is you sit down and look at the data 14 and analyze the data; right? 15 A. Correct. It's not the hard part. 16 It's the fun part 17 Q. Personally, I wouldhave thoughtthe 18 fun part would have been going to hit the drinks. 19 A. That's the difference between 20 attorneys and research people. We like math. 21 Q. The only math most attorneys like is 22 33 and 40 percent. 23 A. I've found that out. 24 Q. So you crunch the numbers, and you 25 make a determination that you should —well, let Page 26 1 me ask you. 2 What happensnext, do you determine 3 that three ofthese are not valid or more valid or 4 what? Where do you go next? 5 A. Well, once the data is collected, then 6 we do the statistical analysis, and you probably 7 don't want to know about this, but we did things 8 like step-wise linear regression where you put some 9 in and take some out to see which works best. 10 I did canonical correlation, which 11 shows you how you best separate above and below, 12 which tests do that best. I did discriminant 13 function. All of these are very sophisticated and 14 are done by computer. Youdon't crunch them on 15 your calculator. They're very sophisticated 16 statistical methods for what we needed to do, which 17 is notjust the best test but the best 18 combination. 19 It's fairly complex, because one might 20 be the best test, and two might be the secondbest 21 test, but if one and two are measuring the same 22 kind of thing, you might actually have a better 23 test by taking one and then the third one. So you 24 need to configure thebattery as a whole, that best 25 discriminates the above and below .10. Page 27

1 In fact, what the analysis showed us 2 is that balance is a good measure, walking is a 3 good measure, butifyou've already measured 4 balance, you don't gain much by measuring it 5 again. So although Romberg, which was one ofour 6 alternates, is a very good test, an excellent test, 7 ifyou're going to use the One-LegStand,you don't 8 really gain enough by doing another balance test to 9 include it. It doesn't mean it's a bad test. It's 10 a good test. But you have not gained anything by 11 adding —you have not harmed anything, but you've 12 taken up more time. 13 Q. Right. It's repetitive? 14 A. It's repetitive. So the final 15 configurationwere the three best tests in total 16 for making this discrimination. 17 Q. Okay. You described the three other 18 tests, and we'll skip the Paper-and-Penciltest 19 because we don't remember it too well, and I've 20 never even heard of it before today. 21 You described the Finger-to-Nose test 22 or Touch-the-Nose test 23 Was that repetitive of one of the 24 other tests, or was it found not to be an accurate 25 test,or was therejust a better configuration as Page 28 

### LORIRAYE COURTREPORTERS (818.508.1418) Page 25 - Page 28EXAM UNDER OATH MARCELLINE BURNS 

### Multi-Page1 FRIDAY, APRIL 17, 1998

1 a I looked at the final report for the 1 you were going to use as experiments. 2 research contract. 2 Can you tell us what you mean by 3 Q. Okay. So you come out of the pilot 3 "experiment"? This isn't like a chemistry thing. 4 program with these six tests? 4 A. I can describe exactly what we did. 5 A. Correct. 5 Q. Sure. 6 Q. You send a report regarding that to 6 A. We recruited the human subjects for ., 7 NHTSA; is that correct? 7 the study. The qualificationsfor this particular 8 A. I'm sure the results ofthe pilot were 8 study were that they had to be licensed drivers and 9 reported in a progressreport I no longer have 9 they had to be willing to drink alcohol. Other 10 that. Based on the pilot work, we then said, "We 10 than that

—because we wanted to recruit a 11 propose to do the experiment with these six tests," 11 cross-sectionof the driving population such that 12 and then proceededto do so. 12 police officers were going to encounter at 13 Q. Is this still under NHTSA? Is this 13 roadside. 14 who you're still answering to for the federal 14 By random procedures, we assigned 15 government? 15 them, unknown to them, to various alcohol 16 A. I don'tknow what that question 16 conditions. There were more peopleat zero —even 17 means. I don't answer to the federal government 17 though they drank a beverage, who were at zero 18 MR. BAIR: Are they the agency that employed 18 because otherwise, we wouldhave created the 19 you to conduct the study, NHTSA? 19 expectation to the officer that every other one or 20 THEWITNESS: We were under contract to them, 20 every third one is going to be under the influence, 21 yes. 21 and we didn't want to do that So an officer on a 22 BY MR. KAPSACK: 22 given day might see six people on the road who had 23 Q. And it hasn't changedto a different 23 had no alcohol. The actual range ofBACs was zero 24 organization? This is — 24 to .15. 25 A. During this research? 25 We recruited ten police officers from Page 21 Page 23 1 Q. Right 1 law enforcementagencies in and around Los Angeles, 2 a. No, it was always NHTSA 2 and brought them in for one session which was about 3 Q. I wanted to make sure we were clear on 3 four hours long, and we trained them on how we 4 that, and theCIA didn't come in and say "We're 4 wanted them to administer these six tests. In 5 taking over this project" 5 other words, "You do it this way; not creative, not 6 A. No. 6 inventive; you do it this way." But it was a short 7 Q. So in the report, you suggest to NHTSA 7 training, and given that police officers had not 8 that you be allowedto use these six tests to take 8 had any experience with standardized testing 9 into the field or into the laboratory? 9 methods,I feel fairly confident saying they hadn't 10 A. Yes. AlthoughI don't have those 10 developed any particular confidence themselves in 11 progress reports, I'm sure what happened was at the 11 what they were doing. 12 end of the pilot study, in our progress report, we 12 Nonetheless, we broughtthem in two at 13 reported the findings on the pilot studies, 13 the time on weekend days. We brought in, as I 14 reported the six that we expected to examine and 14 recall, about 15 to 20 people for drinking 15 experiment, and undoubtedly detailed how we were 15 sessions. The officersdidn't see the people 16 going to conduct theexperiment 16 during the drinking period. They were segregated. 17 Q. Then I would take it that you got the 17 They had no contact with them until they reached 18 official go-ahead. 18 their peakBAC, measuredvia breath instrument, and 19 A. I'm sure we did. 19 they were introducedinto the room. At thatpoint, 20 Q. Because you went ahead? 20 the officer could ask questions. 21 A. We went ahead. 21 We had one ofour staffin the room as 22 Q. Okay. So now you go ahead with these 22 well to observe everything that was goingon. He 23 six tests? 

### 23 couldaskthemthekindsofthings he askedthem at 24 a. Right 24 roadside, then administered the test, and then he 25 Q. And you said that these are the ones 25 had to record a decision whether he believed that Page 22 Page 24 

### LORIRAYE COURT REPORTERS (818.508.1418) Page 21-Page 24EXAM UNDER OATH MARCELLINE BURNS TM Multi-Page FRIDAY, APRIL 17, 191

1 Q. As you said before, you weren't 2just - let me back up. 3 We're saying "you." You weren't alone 4 in this project were you? 5 A. No, I was the project director on the 6 firstexperiment. Mycolleague, HerbertMoskowitz, 7 was also involved in that one. 8 Q. So we're using the plural "you," so to 9 speak. 10 A Right 11 Q. You weren't given the money and cut 12 loose, and the feds said, "Give us a report in two 13 years"; they were watching you, expectingregular 14 reports back? 15 a. That's correct. Part ofyour 16 contractual agreement is that you report your 17 progress on a monthly basis. 18 Q. This may be hard for you to recall, 19 andifyou don't recall that's fine. 20 At any time during this process, did 21 theagency ordepartment, whoeverwas overseeing 22 you for the federal government, besides accepting 23 reports or anything else, ever come in and say 24 "Wait a minute," or "Look at this," or direct you 25 in any way, or wereyou pretty much allowed toPage 17

1 focus on what you felt was scientifically correct? 2 A. I don't recall any instance of them 3 taking exception to anything that we reported and 4 saying "We don't agree with this," or "Take another 5 look," no. We're very good research people, so 6 that's not sornething that happens to us. 7 Q. Plus it must have been a little bit 8 hard for anybody, since you're the first ones going 9 down the path, to say "You're not going the right 10 way"? 11 A That's true and not true. There was 12 another large-scale project going on in Finland 13 slightly before this. I didn'tknow about it early 14 on, and so I don'tknow ifNHTSAknew about it 15 But in fact, there had been a pretty good and 16 rather extensive study that was done differently 17 than what we did because they did it 18 retrospectively by looking at records. But 19 interestingly enough, they came to the same 20 conclusions independently. 21 Q. So you're at this project for a couple 22 years, and your file report —I don'tknow what 23 the right word is. I don't want to say culls or 24 whittles, but you develop the position that the 25 three best tests are the tests that you mentioned 1 before, Horizontal Gaze Nystagmus, Walk-and-Turn 2 and One-Leg Stand? 3 A. That's correct, based on the 4 statistical analysis of that first experiment 5 Q. Again,it's not based on any whim or 6 anything; this is what the numbers show? 7 a. Absolutely. 8 Q. So you give the final blue ribbon 9 report, all typed on the right-size pages with the 10 right margins that the federal government always 11 wants, tape instead of staples so no one cuts their 12 fingers, and you give it to NHTSA? 13 A. That's correct. 14 Q. And now, NHTSA, it's my understanding, 15 put it together in a training manual; correct? 16 A. Not yet There's another process. 17 Q. Okay. Go ahead. What happens next? 18 A Well, understand that the first 19 experiment we were examining —not we. Police 20 officers wereexamining subjects who had zero 21 to .15 BAC in a double-blind designed experiment 22 with six tests. We had come out ofthe pilot 23 experiment with six tests mat we believedmight 24 work at roadside. 25 Q. Let me interrupt for a minute. Page 19

i Could you please tell us what the 2 other three tests were? I'm assuming that three of 3 them are the ones that we've been talking about, 4 and there were three more? 5 A Correct I'll probably have to look 6 at my report 7 One of them was the Paper-and-Pencil 8 test. We wanted very much to find something to use 9 when the person says, "But I have abadleg -" or 10 whatever

— "and can't do balance tests." So we 11 had Paper-and-Pencil actually, a couple. We had 12 one and an alternate. Neither one of them proved 13 workable, All ofthe other tests had some level of 14 accuracy. 15 What we did was take the best ones. 16 Let me - one of them was the Finger-to-Nose. I'll 17 tell you what the other one was. FingerCount,I 18 think. Correct, Finger Count. So there were me 19 three tests that we finally recommended for the 20 test battery,Finger-to-Nose, Finger Count and 21 Paper-and-Pencil test. 22 Q. Just so we're clear, given that it was 23 20-some-oddyears ago, you had to refresh your 24 recollection. 25 Could you tell us what you looked at? Page 20 Page 18 LORIRAYE COURTREPORTERS (818.508.1418) Page 17 - Page 20EXAMUNDER OATH MARCELLINE BURNS TM Multi-Page FRIDAY, APRIL 17, 1998
1 exposition, but that's kind of the history of - 2 Q. My questionwas, during your initial 3 ride-alongs and stuff, did you see that there were 4 certain tests that really were sort of folklorish, 5 and wonder whether or not they had any basis to aid 6 the officerin the decision youjusttalked about? 7 For instance, before we started the 8 deposition, I mentioned there was one place where 9 they said they had stopped people and made them 10 recite the alphabet backwards, and that had 11 absolutely no connection. 12 Did you discover, in either some of 13 the tests that you didn't include in your group of 14 15, or later on, that there were certain tests 15 where people or officers or the community thought, 16 hey, this is a good test to give somebody as an 17 indication, but it turns out it really wasn't a 18 good test? 19 A. Well, certainly, I observed tests that 20 didn't make the cut. Where those tests - you 21 characterized them as folklorish. I don't know 22 where they came from. Since there had been no 23 research in this area, since there had notbeen a 24 big emphasis on alcoholenforcement I don'tknow, 25 but I would suspecttheyjustdeveloped what they Page 13 1 found to help them. Because at that point, there 2 was no research on the validity and reliability of 3 these things. But yes, there were tests being used 4 in 1975 which did not make it into the first 5 experiment. 6 Q. Okay. Now, after your initial reading 7 of the literature and some of your ride-alongs, 8 you've culled down to a group of 15. Then you said 9 shortly after moving it into the lab, some ofthose 10 were cut out for economic reasons orjust 11 practicality reasons, like you said, the officer 12 not having the time or equipment, or not being safe 13 to conduct some ofthese tests on the side ofthe 14 road, which is the environment the officer finds 15 himselfin; correct? 16 A. Not quite. Those issues are all 17 constraints at roadside. But the reason some of 18 those tests were eliminated in pilot studies could 19 be one of several. Either they weren't sensitive 20 to alcohol, they didn't discriminate between above 21 and below .10, or they were not suitable for 22 certain agesor certain conditions. There were a 23 variety ofreasons why theyjust wouldn't work. 24 Q. Didn't make the grade? 25 A. Didn't make the grade. Page 14 Q. Let me back up a little bit. Obviously, you didn'tjump from a huge number, from 15 to 3. It must have been different stages along the way. About how long did that process take? A. You're talking about almost 25 years ago. I don'tknow. Q. Okay. I understand. A. The research began in '75. A final 10 report was issued in June of'77. I did all the 11 traveling, the literature review and the pilot test 12 before we actually began the experiment. So I 13 would guess it was probably three or four months, 14 but I don't recall. 15 Q. So obviously, it wasn't a hasty, 16 overnightdecision.^ It went throughthe stages you 17 just described, the initial reading and observation 18 by yourself, and then some pilot studies? 19 A. Yes. And when you perform research 20 for the federal government for agencies, they don't 21 justgive you the money and walk away and say "Let 22 me know when you get finished." There is an 23 overview process. So you're making monthly 24 progress reports to them, and they're partofthe 25 decision process and part ofthe evolvement ofwhat Page 15 1 you actually do. 2 So if I had said,just arbitrarily, 3 "Well, I don't like these, and I like these," I 4 would have been called on that. So it's a rigorous 5 process. 6 Q. Thank you. That was exactly the 7 question I was trying to get to and I didn't hit it 8 quiteright, but your answer did. 9 So you didn't say, "I don't like this 10 test, I'm not going to bother with it"; ifa test 11 appeared to be a test that was going to make the 12 grade, it stayed in whether you liked it or not, 13 andifit appeared it wasn'tgoing to make the 14 grade, it got dumped by the wayside whether you 15 liked it or not; correct? 16 A. That's very accurate. Whether I liked 17 it or didn't like it, I don't remember having any 18 strong feelings one way orthe other. But in 19 research, numbers are whatmake the decisions, not 20 your subjective evaluations. 21 Q. To state the obvious, because that's 22 part of the reason whywe'rehere, this was all 23 done in what is considered scientifically 24 acceptable means; correct, all these testings? 25 A. That's correct. Page 16 

### LORIRAYE COURTREPORTERS (818.508.1418) Page 13-Page 16EXAM UNDER OATH MARCELLINE BURNS TM Multi-Page FRIDAY, APRIL 17, 1998

1 Q. More than 100? 2 A. Well, if you include hearings as being 3 testimony, it probably would not be more than 100. 4 I don't know. I have no idea. 5 Q. The times that you have testified 6 either at trials or hearings, have you been 7 admitted as an expert

- 8 A. Yes. 9 Q. - regarding standardized field 10 sobriety tests? 11 A. Yes. 12 Q. Subsequent to your study, were the 13 three standardized field sobriety tests adopted by
14 NHTSA? 15 A. I don't know that NHTSAuses the word 16 "adopted." What they did is they took the 17 findings that we reported to them. They also took 18 our data, our actual data set, and one of their 19 staff, a man named Schweitz, did some additional 20 analysis. Ultimately, they produced a training 21 manual and began to sponsor training. 22 Now, I've told you about all I know 23 about that because I don't work for NHTSA, except 24 as a researcher. So I'm not really privy to all 25 those processes. Page 9

1 Q. Going back to 1975, shortly after you 2 get the go-ahead and the funding to start the 3 research in this area, did you start with the idea 4 that there were these three tests, Horizontal Gaze 5 Nystagmus, Walk-and-Turn and One-Leg Stand, that 6 you were going to evaluate, or did you look at a 7 broader base oftests that were currently being 8 used or talked about in the field? 9 A. Neither. 10 Q. Okay. 11 A. Any research project —well, that's a 12 pretty broad statement. I began a project with the 13 literature reviewed to find out what the state of 14 knowledge was concerning that topic at that time. 15 That was the first thing I did. 16 The second thing I did was went around 17 various places in the United States and rode with 18 DUIteams, special enforcement teams to actually 19 determine what it was that they were doing. 20 Then finally, we compiled a fairly 21 long list of tests. I think there were on the 22 order of 15 to 20 that we thought might work. We 23 did some pilot testingwith them. It soon became 24 evident that given the constraints at roadside, the 25 time, variability and circumstances, the weather,Page 10 1 thewide-ranging skills of the people you're 2 dealingwith,all of thosethings, plus you're 3 dealing with the fact of what the squad cars don't 4 have —they already have too much, and wecouldn't 5 suggest adding apparatus on the basis of both cost 6 andjustpracticality. 7 . We had to mink about officer safety, 8 what they could do, and all those things eliminated 9 most ofthe potential tests. We ended with six 10 that we believed had some merit, and then conducted 11 the first laboratory study with those. 12 Q. Regarding the initial list of 15 13 tests, you eliminated some of those based on a 14 variety ofreasons. 15 Were there any tests at that time that 16 were being given by officers which, although they 17 may have been given in that particularjurisdiction 18 for a long time, really had no basis in science, no 19 viability? In other words, they really didn't 20 relate to what the officers were investigating? 21 A. I'm not sure I know how to answer 22 that. 23 What officers were doing in 1975 24 was - there was a lot of variability between 25 agencies, even between officers and even between Page 11
1 one arrest and the next. "Standardized" was not a 2 word that had entered law enforcement in 1975. I 3 think they were doing the best they could. 4 I'vebeen puzzled about this for a 5 long time,that sincetheautomobile wasintroduced 6 around the turn ofthe century, it was recognized 7 that alcohol and driving weren't going to combine 8 very well, if you look at the literature. Why had 9 there been nothing done? The first statute with a 10 number, which happenedto be .15, was enacted in 11 Indiana fairly early on. I don't remember the 12 exact date. I have to look it up. So 1was really 13 puzzled about why nobody thought about how the 14 officers were going to enforce these statutes. 15 If you think about it, ifyou're 16 talking about .15, you're talking about a visibly, 17 obviouslyintoxicated person. Probably they didn't 18 need a lot of help at that point. But when it 19 switched from thinking about drunk drivers to 20 thinking about impaired drivers, which is what the 21 scientific literature was moving toward, then it 22 became clear that officers need some help in being 

### 23 able torecognize thesigns andsymptoms associated 24 with impairment by alcohol. 25 I forgot why I got onto that long Page 12 LORIRAYE COURTREPORTERS (818.508.1418) Page 9-Page 12EXAMUNDER OATH MARCELLINE BURNS TM Multi-Page FRIDAY, APRIL 17, 1998

1 A. lam. 2 Q. Is there any need for me to go over 3 them with you? 4 A. No. 5 Q. Obviously, at the end of this, you'll 6 receive a copy of thetranscript. If you need to 7 make any changes,you'll have an opportunity to do
8 so. 9 A. Okay. 10 Q. I have here what will be marked as 11 Exhibit 1, a copy of yourcvthat you gave me 12 today. 13 Is this an accurate and up-to-date 14 copy ofyour cv? 15 A. It is. 16 Q. I'm not going to go into it in any 17 depth. 18 (THE DOCUMENTREFERREDTOWAS MARKED
19 BY THE REPORTER AS EXHIBIT IFOR IDENTIFICATION AND 20 IS ATTACHED HERETO) 21 BY MR. KAPSACK: 22 Q. We're here today to discuss 23 standardized field sobriety tests. 24 Are you familiar with that subject? 25 A. lam. Page 5

1 Q. Could you tell us briefly how it is 2 that you know about standardized field sobriety 3 tests, outside of maybe saying it's something that 4 your fatherknew and his father before Him knew. 5 A. Well, I'm one ofthe founders ofand 6 the current director ofthe Southern California 7 Research Institute. That's a nonprofit research 8 group. We're funded by grants and contracts. 9 I don't know how much youknow about 10 that process, but contracts are issued when the 11 government agency identifies an area ofresearch 12 that they think needs to be done, and they issue a 13 request for proposal. Any research group that 14 believes they are competent to do that work can 15 respond with a cost proposal and technical 16 proposal. 17 In 1975, the National Highway Traffic 18 Safety Adniinistration, NHTSA, realized that the - 19 this is my understandingof what led to the request 20 forproposals. Theyrecognized that the average 21 blood alcohol concentration ofarrests nationwide 22 was .17 percent BAC. 23 Theprevailing statutewas 24 .10 percent. There may have been one or two that 25 still had a high one, but most of the states had Page 6 1 gone to .10. If the average arrest is :17, that 2 means that a lot of people who probably ought to go 3 tojail are not doing so because the officer is 4 either notdetecting the driving pattern that leads 5 him to stop the vehicle, or once he stops a 6 vehicle, he's notrecognizing the presenceof 7 alcohol. 8 The National Highway Safety 9 Administration actuallyfunded several research 10 contracts, but the RFPthat we responded to was 11 specificallyto develop a battery of tests that 12 police officers could use at roadside that would 13 help them to make the correct decision so that it 14 is a competitive bidding process. 15 Our bid, both the technical proposal 16 which outlines how to expect to do it, what your 17 expertise is, soform, and our cost proposal won 18 that award,and we began that research in 1975. 19 The final report was submitted in 1977,and it was 20 in that report that we recommended the threetests, 21 HorizontalGaze Nystagmus, Walk-and-Turnand 22 One-Leg Stand. 23 Based on that recommendation, they 24 subsequently issued a second contract to us to do a 25 secondstudy withjustthose three tests, and that Page 7

1 one was completed in 1981. So that's how I got 2 into this area. 3 Q. Okay. Your background information 4 regarding your ability to get into this area, your 5 expertise,etcetera,is covered in yourCV; 6 correct? 7 A. Yes and no. 8 Q. Okay. 9 A. At that time, I had several years' 10 backgroundin studying the effects of alcohol and 11 other drugs. I didn'thave any background in 12 roadside tests, nor do I think anybody in this 13 country did at that time. It's not a research 14 topic that has gotten a lot of attention worldwide. 15 Q. Okay. I forgot to ask this in the 16 beginning, soI'll ask it now. 17 Haveyou testifiedin courtpreviously 18 regarding standardizedfield sobrietytests? 19 a Yes. 20 Q. Can you give us a ballpark figure as 21 to the number oftimes? 22 A. No, not really. Not an accurate one. 23 A lot of times, but I have no idea how many. 24 Q. More than ten? 25 a. Yes. Page 8 

### LORIRAYE COURTREPORTERS (818.508 1418) Page 5 - Page 8EXAM UNDER OATH MARCELLINE BURNS

IK RE!

EXAMINATION UNDER OATH

or

XARCELLINB BURETS Page» X - 62

EXAMINATION WIDER OATS OF XARCELLIHE BURNS, Ph.D.

TAKEN OH PRIOAY, APRIt 17, 1996

REPORTED BY: LORI RAVE
CSR NO. 7092

Examination Undar oath of MARCELLINE BURNS, Ph.D., taken at 12400 Wilihlr* Boulevard,
Suit* 1300, Lor Angelei, California, on Friday, April 17, 199S, at 12:15 p.n., bafoce Lori ftaya,
CSR No. 70S2, puriuant CO notica.

APPEARANCES:

FOR ROBERT SOWN:

KAPSACK i BAIR, LLP BY: BRUCE KAPSACK, ESQ. HUDSON BAIR, ESQ. 353 sacramuto 3treat Suit* 1SO0 San Fruieiieo, California 94111 (415) 421-1021 TM Multi-Page FRIDAY, APRIL 17, 1998

Pag* 1 WIWESS
MARCELLINE BURNS, Ph.D.

6 EXAKIMATION

7 B* MR. KAPSACK

B

9

10

11

12

13 HO.

14 DESCRIPTION

15 1

16

17

IS

19

20

21

22

23

24

25 curriculum Vita* of Marcelline Burnt, Ph.D. FACE

*

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LOS ANGELES, CALIFORNIA, FRIDAY, APRIL 17,1998 12:20p.m.

MARCELLINE BURNS, Ph.D., HAVING BEEN FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:

EXAMINATION

BY MR. KAPSACK: Q. Could you please state your name and spell your last name for the record. A. My name is MarcellineBums, B-u-r-n-s. Q. And it's Dr. Bums; correct? A. Correct Q. Have you had your deposition or examination under oath taken in thepast, Dr. Bums? A. I have. Q. On more than a couple of occasions? A. Yes. Q. So you're familiar with the rules of
Pag* 2 depositions? Page 4 

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