NO. 06-13-00223-CR

RECEiVED IN FILCO IN

^ ^th^ST'3 IN THE COURT 0F APPEALS ^gSK'wliSf3*

£c f:JS) SIXTH DISTRICT DEC 29201,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 COURT AT LAW NO. 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 of the Texas Rules of Appellate Procedure in Support of her

request for the judgment of conviction to be overturned in Cause CR 1101695.
IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Ruleof Appellate Procedure 38.1, the undersigned counsel of record certifies that the

following persons have^an interest in the outcome of this case. These representations are made so that

the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse

themselves from participation in the 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 of Texas by and through

Joel D. Littlefield

Jeffery Kovach

Hunt County Attorney

4th Floor Hunt County Courthouse

2500 Lee Street

Greenville, Texas 75401
TABLE OF CONTENTS

Identity of the Parties and Counsel

Table of Contents

Index of Authorities

Statement of the Case

Issues Presented

Statement of the Facts

Summary of the Argument

Prayer for Relief

Certificate of compliance of typeface and word count

Certificate of Service
INDEX 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)

Hooper v. 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 other grounds by California

v. Acevedo, 500 U.S. 565, 568-80 (1991) (internal quotation marksomitted)).

United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beck v. 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: A Treatise 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.3d at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005).

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

Crim. App. 2007).

Bray, 597 S.W.2d at 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 RULES
Texas Penal Code 49.04

Rule 44.2(a) of the 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.: New York

2 Burns, M.,& Anderson, H.( 1995). AColorado validation study of the standardized field sobriety

(SFST) battery. Final Report. Colorado Department of Transportation.

3 Burns, At, & Dioquino, T.( 1997). A Florida validation study of standardized field sobriety test

(S.F.S.T. battery. Florida Department of Transportation.

4 De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore.

5 DWI detection and standardized field sobriety testing Student manual.(1995). NHTSA, U.S.

Department of Transportation.

6 DWI detection and standardized field sobriety testing Instructor manual. (1995). NHTSA, U.S.

Department of Transportation.

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 of proprioceptive information for

balance control. Symposium international de posturegraphie, 83-93.

9 Mills, K., & Bisgrove, E. (1983). Body sway and divided attention 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 of Medical Illustrations, Volume 1. CIBA Pharmaceutical

Publications.

12 Newell, F. (1996) ophthalmology: Principles and concepts, 8th edition. Mosby-Year book Inc.

13.Psychophysical tests for DWI arrest. 91977). U.S. Department of Transportation.

14 Stuster, J.,& Burns, M. (1998).Validation of the standardized field sobriety) test battery at BACs

below 0.10 percent. Final Report, NHTSA. U.S. Department of Transportation.

15. Tharp, V., Burns, M., &Moskowitz., H. (1981). Development and field test of psychophysical tests for

DWI arrest. Final report, NHTSA, U.S. Department of Transportation.

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 may kill off parts of the cellsthat helps sees on the retina.

d. Multiple Sclerosis, and Rheumatoid Arthritis both a demyelinating disease that can affect

nerves, makes them respond erratically, and causes blind spots on the retina.
STATEMENT OF THE CASE

This is an appeal of the judgment and sentence in a criminal case for the

County Court at Law Number 1 in Hunt County, Texas. Appellant Plead Guilty to

the crime of Driving while Intoxicated Second. (RR Vol. 3 p.8) Appellant filed in the

trial court an election to punishment to be made by the trial court on August

12th, 2013. The court ordered a pre-sentence investigation. Appellant was

assessed a sentence of imprisonment for Two Hundred Fifty (250) days in the

Hunt County Jail, $0.00 fine, and $433.00 in court costs on October 14th, 2013 by

the trial court. Motion for New Trial was timely filed on November 4th, 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 was filed on November 12th, 2014. Motion was granted on November

25th, 2014.
ISSUES PRESENTED

Point of Error One:

Defendant's Fourth Amendment rights were violated when the officers failed to obtain a

search warrant.

Point of Error Two:

Trial court erred in the admissibility, utilization and refutation of the State's evidence

concerning field-sobriety test.

Point of error Three:

Trial court erred in allowing Trooper Goodwin to testify that there is a certain level of

intoxication that can be determined by the HGN .
Statement of the facts

Appellant pled guilty to Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial

court admonished Appellant of the charge and the range of punishment. (RR Vol. 3 p.8-15). The

trial court then admonished the Appellant that the State was seeking to enhance his

punishment range from a Class Bmisdemeanor to a Class A misdemeanor. (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 of two 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

in the 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

herself of the opportunity to 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 violated when the officers failed to obtain a search warrant.

(2) Trial court erred in the admissibility, utilization and refutation of the State's evidence

concerning field-sobriety test. (3)Trial court erred in allowing Trooper Goodwin to testify that

there is a certain level of intoxication that can be determined by the HGN .
Point of Error One:

Defendant's Fourth Amendment rights were violated when the officers failed to obtain a search

warrant.

Requirement of a Search Warrant

The Fourth Amendment to the United States Constitution provides, "The right of the people to be

secure in their 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 all unreasonable 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 bygovernment officials," 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 of the 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 the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the 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 of government, where officers are under the 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 hurried judgment of a lawenforcement officer engaged in the often

competitive enterprise of ferreting out crime." Hudson v. State, 588 S.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)). A neutral magistrate's

prior review "prevents] hindsight from coloringthe evaluation of the reasonableness
of 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 of probable cause, and substitutes instead the far less reliable procedure

of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the

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 of probable cause

and avoid justification for a search ... by facts or evidence turned up in the course of [its] execution.'"

(quoting WayneR. LaFave, 2 Search and Seizure: ATreatise on the Fourth Amendment§ 4.3(b), at 511

(4th ed. 2004))).

"The exceptions to the rule that 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 incident to 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 of these exceptions. Id.

In the case of the 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 ever requested even though the Defendant's vehicle was searched and two

bottles of empty wine were found (RR. Vol. 4) the car had not been impounded at the time of the search

nor had a wrecker been called to pick up the vehicle at the time of the search. In fact the car was

searched more than once by more than one officer. Although one 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 (Trooper Goodwin) testified to havingsearched the car only for "inventory " purposes

however he had not come in contact with 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 a Fourth Amendment violation has the burden of producing evidence

that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the

seizure occurred without a warrant." State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011)

(footnotes omitted); see Robinson, 334 S.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 of a search warrant without a showing by those who seek

exemption from the constitutional mandate that the exigencies of the situation made that course

imperative.'" Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456). Exigent circumstances

typically fall within one or more of three 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 of evidence 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) ("In order for a warrantless arrest or search to be justified, the State must show ...the

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

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

circumstances because it contained no mention of a 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 belief that the delay

necessary to obtain a warrant will facilitate the destruction of removal of evidence...." (emphasis

added))). No attempt 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 Analysis
Because the State failed to meet its burden, a harm analysis must be performed. The admission

of evidence obtained in violation of the Fourth Amendment issubject to constitutional harm analysis

pursuant to Rule 44.2(a) of the 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). "If the appellate record in a criminal case

reveals constitutional error that issubject to harmless error review, [we] must reverse [the] judgment of

conviction or punishment unless it is determined beyond a reasonable doubt that the error did not

contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). The harmless error inquiry under

Rule44.2(a) should adhere strictly to the question of whether the error committed in a particular case

contributed to the verdict obtained in that 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't taken into police custody until

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

Trial court erred in the admissibility, utilization and refutation of the State's

evidence concerning all of the field-sobriety test that were administered

Texas Trooper Bubba Goodwin was sworn on August 13th, 2013. (RR. Vol 4

pg.6). At approximately 2:57 am on July 25th 2011 Trooper Bubba Goodwin was

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) Trial counsel objected to his testimony 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 of their 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) Trooper Goodwin admitted to giving the Defendant instructions to the one

leg stand that suggest that it was "ok for the Defendant to put her foot down and

pick it back up." What he failed to do was to inform the Defendant that 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 if she 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 her fingers could all be affected by Arthritis . (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 of intoxication 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 of the 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). In the Defendants case the arresting officer Trooper Goodwin

testified that the Defendant was over the 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. A later 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 is whether the appellant was harmed by the 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 of counsel 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 of a

reasonable probability that but for counsel's deficient performance the result of

the proceeding would have been different. Strickland, 466 U.S. at 694; Ex parte

Lane, 303 S.W. 3d at 707. A reasonable 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 if there 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 of Dr. Burns attached hereto).

Pursuant to that contract, research was performed evaluating many of the

commonly used roadside tests and narrowing the list to 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). In the end, a combination of
three tests were determined to be the best indication of impairment. There three

tests: horizontal gaze, nystagmus, one legged stand, and walk the 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 of administering, 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 of the research data or any of the accumulated data over the years. "

(Burns Stmt at page 30, line 4-7).

This position, that only tests given in the "standardized" manner, have any

validity is echoed in virtually every police manual regarding field sobriety tests.

The Ohio Supreme Court in State v. Homan (April 26, 2000) 89 Ohio St. 3d

421, 732 N.E. 2d 952, held that any variation in the use of the NHTSA

Standardized Field Sobriety Tests makes the results completely unreliable as

relates to probable cause, a lower standard than required for conviction. The

court found "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 of error that characterize

field sobriety tests 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 of probable cause to

arrest, the police must have administered the test in strict compliance with

standardized testing procedures. " In the case of the 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 that the officer did use from the three battery approved by NHTSA 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 that the

standard enunciated for admissibility in Kelly cannot be met by the prosecution.

The standard for admissibility of evidence 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 Kelly which 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 of reliability and should be precluded.

Based on the analysis of virtually every state court decision, and hearing or

reading from the foremost experts in the field of DUI/DWI investigation for both

prosecution and defense, the United States District Court for the district of

Maryland " the results of the SFSTs either individually or collectively, are not

admissible for the purpose of proving specific blood alcohol content (BAC) of a

driver charged with DWI/DUI." U.S. v Horn (D. Md. 2002) 185 F. Supp. 530.

Therefore, evidence of performance on the SFSTs is not relevant.

Dr. Marceline Burns, considered by most courts to be the foremost

proponent of SFSTs (see e.g., Horn, supra), has stated under oath "What you're

asking is are these tests of driving? 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

can judge somebody in five minutes at roadside that you never saw before to

make a decision about their driving skills." (Statement of Dr. Marcelline Burns

Under Oath, 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.
In the closing of Trooper Goodwin's testimony he was asked by the Court to

clarify one of the 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 of them you said was that

she well, let me just ask you the question. Ithink that I heard 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 City but 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. And that's one of the 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. In what 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. Did you ever inquire of Ms. Nance where she was actually from?

A. No, sir.

Q. Okay. So ifshe's from Mount Pleasant, that would be the direction of going

home, would it not?

A. I asked 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 refer to a different place as home as opposed to where

they live, don't they?

A. Yes, sir.

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

In John V. State, 517 S.W. 2d 536 (Tex. Crim. App. 1975) which has long

stood for the proposition that being intoxicated at the scene of a traffic

accident which the defendant was alleged to be the driver was not evidence

that the defendant was driving while intoxicated.

Texas law requires the State to establish, beyond a reasonable doubt, a

temporal link between 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:

In evaluating legal sufficiency of the 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 of the evidence

presented. Brooks, 323 S.W. 3d at 917 (Cochran, J., concurring). We examine

legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the trial judge "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).

NOT REPORTED in S.W. 3d, 2011 WL3862861, (Tex. App.-Texarkana 2011, no

pet.).
Point of Error 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 of 3 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 of 0.087 mg % (2) and in 1997 to a BAC

of 0.05% (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 of either 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 brief will review one of these tests, the Horizontal Gaze Nystagmus (HGN)

Test, and will demonstrate problems in using it as a determinant of whether

someone is accurately and reliably evaluated as Driving While Intoxicated.

Blood Alcohol Concentration (BAC) in fact is not a measure of intoxication, but

only of the level of alcohol in the blood at that moment in time. Despite NHTSNs

desires and research pronouncements, there are problems with these SFSTs. Its

initial support for these studies, however, was guarded because the 1977 initial

report included the following disclaimer on the front page. "Prepared for the

Department of Transportation, National Highway Traffic Safety Administration

,under Contract No. DOT: HS-5-01242. This document is disseminated under the
sponsorship of the Department of Transportation in the interest of information

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

use thereof, (n)rIt is of important note that other NHTSA funded studies by the

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 only true 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 of the BAC.

The validity of indirect measures of BAC 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 of their total body, including their nervous, skeletal and

muscular systems. This cannot 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% of the people who

failed lto 3 Field Sobriety Tests had a BAC of at least 0.1 mg % (as tested by

breath (13), another indirect measure). By adding in those individuals who were

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

depicted to be 90% accurate for all people tested. Interestingly, this 90% figure

also included over 20% who tested positive and failed 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, using the SFST in the real world of DWI 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 by the government to have a BAC greater than the acceptable

level of 0.08 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 of 0.08 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 of the SFSTs at the 0.08 mg%

level in Florida in 1995 and subsequently at the 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 of people 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 in fact it remains almost the same. Even the Horizontal Gaze Nystagmus Test

which is touted by NHTSA as the most accurate test of all three SFSTs and is not

subjected to voluntary control, reflects little change in the 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 Sobriety Test by the Southern California Research Institute

because it has a claimed higher accuracy rate than the other two tests and

appears to be totally out of the 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 other factors

besides alcohol and drugs that can precipitate or exaggerate HGN.

Adams' "Textbook of Neurology" defines nystagmus as the "involuntary

rhythmic movements of the eyes". The NHTSA Driving While Intoxicated

Detection and Standardized Field Sobriety Test Instructor and Student Manuals

define Nystagmus for law enforcement as "the involuntary jerking of the 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 likely because there are so many other causes

for it besides just alcohol.

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

The slow, natural tracking of the object (smooth pursuit) stops, the

eye quickly darts back toward the midline, then returns to slowly

track the 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 of this

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 of the brain, the Pons of the Brain Stem, as well as the

neutral pathways that connect these structures.

The Retina of the eye must see the object without distortion, and have that

message register in the optic region of the brain. Of the Extra-Oculomotor

Muscles, the Lateral and Medial Rectus of each eye must be the only muscles

involved in just lateral movement, tracking, and actual Horizontal Gaze

Nystagmus. If other muscles of the eye are used or stimulated, then there is no

checking of horizontal gaze. As the eye moves to follow the object, the nerves and

muscles send information via neural pathways to the Cerebellum about the

amount of movement, 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 of eye 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 of the eye and slowly moved

toward one side and then the other. The individual receives a total of up to six

points based on poor performance in three different aspects of the test, although
only four are required to fail the test, which would determine that their BAC was

over O.lmg %,0.08 mg %, or 0.05 mg %, depending on the study:

IThe eye tracks laterallytoward the side, and ifthe slow tracking is not smooth,

the individual receives one point for each eye that the tracking is not smooth.

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

jerky movement in that corner ,the individual is again scored one point for each

eye that there is significant movement.

3 Finally, the angle from directly in front that nystagmus beginsis

determined, and if it occurs before a 45° angle, they again 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

understanding that alcohol can influence Horizontal Gaze Nystagmus (HGN).

These include the Effects of Alcohol 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 in the blood will be different than

the alcohol level in the Labyrinth System ofthe Inner .Ear during theAscending

and Descending phase ofalcohol use because alcohol is slow to pass through to

the blood brain barrier .This means that during the Ascending
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's Labyrinth System will

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 target they are

following whichgives a "jerky • non-smooth appearance called Horil.ontal Gaze

Nystagmus. To the non-medical observer, the eyes have trouble following, or

have problems compensating, and appear to act like "a marble 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" or tracking movement of 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 it is another scientific

finding which helps to understand why Horizontal Gaze occurs.

These two scientific facts explain why alcohol in the blood can cause an

exaggeration in normal nystagmus, which is the basis for the HGN of the SFSTs.

These legitimate scientific findings 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 other factors can

cause or exaggerate Horizontal Gaze Nystagmus in a non-intoxicated individual..

In fact, these other causes of HGN are very important because they speak to the

validity of the law enforcement determination of Intoxication , and subsequent

revocation of a Driver's License and/or a DWI conviction. They may also be too

complex, involving so many neuroanatomical structuresand be so influenced by

past and present medical issues, that non-medical personnel, such as law

enforcement officers, simply cannot 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 also acknowledged that Barbiturates and PCP could cause Nystagmus

(4,5) Many prescription medications can also cause or exacerbate 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 these drugs exaggerate, enhance and cause Nystagmus,

they also help the "abnormal" person to function normally. If the individual were

stopped and tested by a law enforcement officer for HGN, as in the case of the

Defendant they would test positive, although they are in fact on medication to

help them function normally.

Retina, Optic Nerve Damage

The Retina and Optic nerve may bedamaged sufficiently to cause or to impair the

HGN test but not be damaged enough to impairan individual's ability to see to

drive. Diseases can impair the Macula. This is the central part of the retina, which

is the part of the eye that has the most sensitive Optic Nerve cells and which

helps an individual to accurately focus on an object. Any disease such as Albinism,

Arthritis ,Retinatitis Pigmentosah, Diabetes, and Multiple Sclerosis" can affect this

part of one or both Retina and in turn cause or exacerbate HGN. People who are

born with eye problems such asStrabismus (cross-eyed) or who have had eye or

lid surgery 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 test the 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 in that they work together while

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

enabling the eye to move from side to side. In turn, the two eyes must also work

together in 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 DWI Instructor and Student Manual. In fact, any problem with

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

between one eye's movement and the other .The cause of this could be surgery in

childhood to correct eye problems, damage to the muscles of one eye, or even a

"lazy eye, "which will cause Nystagmus, although the individual had not been

drinking.

Alcohol, which depresses the Central Nervous System, may affect the smooth

coordination of these two opposing muscles and cause a breakdown of the

balance between them, which many exacerbate nystagmus. The NHTSA HGN

examination is done above eye level, which is what the NHTSA Manuals and

Videos recommend. This height brings into play the four other Occulomotor

muscles (the Superior Rectus, 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. Check the suspect's eyes for the ability to track

together. Move the stimulus smoothly across the suspect's entire field of vision.

Check to see ifthe eyes track the stimulus together or one lags behind the other,

ifthe eyes don't track together it could indicate a possible medical disorder,

injury, or blindness.
Testing in this manner complicates and invalidates the HGN test because not just

the Lateral Rectus and Medical Rectus Occulomotor muscles are being tested. The

test as it is taught and as the NHTSA Manual instructs is then invalid.

Inner Ear

An intact Inner Ear 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 at the side of

the road are not trained to and do not take a detailed medical history about

childhood illness, past traumas and other medical problems when the individual is

beingjudged for intoxication. The individual himself may 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 Stem connects many aspects of the Autonomic

Nervous System and the Voluntary Nervous System. It receives and sends

impulsesfrom Labyrinth System of the inner ear, the Extra-Ocular Muscles, and

the Ocular Cortex where what the eye actually sees register.

The Cerebellum connects to the Brainstem, and is also part of the

feedback system which receives input about nerve and muscle activity, and

then modulates or counterbalances each muscle's contraction with its

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

that connect and feed- back messages from the eyes, the Occulomotor

muscles, the Cerebellum, the Inner Ear's Labyrinth System, and the Brain

Stem. Interference with any of the neural pathways between these diverse

parts of the head can cause HGN. Many factors, 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 in turn their ability to

send and receive data. Small bleeds (such as those caused by hyper

tension), small tumors, and even injuries (such as those caused by minor

head trauma, from boxing, automobile or sporting accidents) can cause

damage which will result in 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 by EMT prior to taking the HGN test. Cerebral palsy ,congenital

cerebella problems, demyelinating diseases such as Multiple Sclerosis,

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, which will exaggerate normal nystagmus, and may

be seen when tested for HGN.

Anything that interrupts or damages any part of this system, be it from infection

(childhood or adulthood), including meningitis, encephalitis, an inner ear

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 functioning they are of little consequence.

Summary

The Standardized Field Sobriety Tests, which include the test of

Horizontal Gaze Nystagmus (HGN), are used bylaw

enforcement as ifthey were direct measures of blood alcohol

content, initially at the 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 is justification 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 of alcohol, Blood Alcohol

Content, as are alt other Field Sobriety Tests. Nystagmus itself

is a normal process. It can be exaggerated by the influence of

alcohol and drugs. Nystagmus, however, can also be influenced

by many other factors, including medication to help an

individual function such as in the case of the Defendant who

was prescribed Lithium , their past and present medical

condition in the Defendant's case her Rhuematoid Arthritis,

and the environment they are tested in. These other factors

might cause a person to be judged intoxicated when they are

not, and they are often ignored in SFST testing as in the case of

the Defendant Nance. The process by which nystagmus occurs

is a very complex feedback loop that involves neuroanatomical

structures in the Brain. Inner Ear, Brain Stem, Rectus of the eye

and Extra-Ocular muscles, as well as the millions of neural

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 fail the HGN part of the 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% of all individuals who fail

the HGN test and refuse a breath test will not only unfairly lose their license, but

also possibly suffer a wrongful DWI conviction, because their BAC would have

been below the 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 of the HGN test. They will have "false

positives" and will be assumed guilty, rather than assumed innocent" The built in

inaccuracy ofthese test may well be the reason the U.S. Department of

Transportation continues to put the disclaimer on each new study they sponsor,

stating: "The United States Government assumes no liability for the contents or

use thereof." (15)
In summary the State did a "very sloppy" job of investigating the accident. They

failed to get a search warrant and to they failed to fully investigate what really

happened that night. What we have here is a case of a young woman who was hit

from behind by a 18 wheeler who was free to go. He (the driver of the 18

wheeler) was never asked to perform any sort of field sobriety test unlike the

Defendant even though he was the cause of the accident. The State used two

nonstandardized tests that based on research have no probative value

determining ifsomeone is intoxicated. The State used a HGN test that based on

research if certain medical disorders are in to play such as Arthritis or a person

who has been prescribed Lithium as in the case of the Defendant those test are

invalid as well. And finally you have a officer who asked the Defendant where she

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

because he was thinking she was lost when in all actuality she was trying to tell

him she was headed home to Mount PI easant 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 DOUBT that the Defendant was

intoxicated where in this case it is clearly obvious they have failed to do. The

Defendant prays that this Court REVERSE the judgment and REMAND the case

back to the trial court and render a judgment of acquittal. In the alternative,

Appellant praysthat the cause be remanded for a new trial or for further

proceedings in accordance with the law of this Court's ruling.
PRAYER FOR RELIEF

For the reasons set forth above, Appellant prays that this Court REVERSE

the judgment and REMAND the case back to the trial court and render a

judgment of acquittal. In the alternative, Appellant praysthat the cause be

remanded for a new trial or for further proceedings in accordance with the law

and this Court's ruling.

Respectfully submitted:

Jessica Nance

P.O. Box 211362

Bedford, Texas 76095

214-650-4387
CERTIFICATE OF COMPLIANCE

I certify that this document was prepared with Microsoft Word and that

according to that program's word count function, the sections covered by Tex. R.

App. P. 9.4(i) contains 10,028 words.

JESSICA NANCE
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing has

been forwarded to the following persons listed Jason A. Duff 2615 Lee Street PO

Box 11 Greenville, Texas 75043, State of Texas Jeffery Kovach 2500 Lee Street,

Greenville, Texas 75401, and the Sixth Court of Appeals 100 North State Line Ave.

Ste. 20 Texarkana, Texas 75501.

JESSICA NANCE (-< j-S ^L / L
CERTIFICATE OF SERVICE

I hereby certify that a true 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 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 ONE

EXAM 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. And I 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 the penalties of perjury of

13 the State of California that the foregoing is true

14 and correct.

15 Executed on the day of

16 19 ,at

17 -

18

19

20

21 W1TNLSS

22

23

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1

2 I, LoriRaye, A Certified Shorthand Reporter

3 for the State of California, do hereby certify:

4 That prior to being examined, MARCELLINE

5 BURNS, Ph.D., the witness namedin the foregoing

6 examination under oath was by me duly sworn to

7 testify the truth,thewhole truth and nothing but

8 the truth pursuant to 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 place therein set forth,

12 and wastaken down by me stenographically 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 subscribed my name this 5th dayof May 1998.

19

20

21

-

22 L6WJUVS

23 CSRNo. 7052

24

25

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1 with misguided pride that they've made the test a

2 little more difficult, or changed 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 THE WITNESS: If the 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 the ground, point the toe, watchtheir

19 toe, their foot at all times, and to count.

20 Now, this is a place where NHTSA has

21 made a change. Our instructions 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 .10 very often can hold it to 20 or 25

3 seconds. It's only when the attention 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 . NHTSA has just within 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, if a 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 six inches and straight out. But if it's five and

5 a half inches or seven inches, it's not going to

6 make a difference in the test 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 the ground,

n Q. In all these 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 placewherethehighway goes

16 in a mountain gap,and you've got 25-mile-an-hour

17 winds. It's probablynot the best placeto give

18 the test, 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 of the

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 who should have been

2 arrested if 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 by releasing

5 them.

6 Q. By assuming some of the mistakes were

7 as a result of being cold?

8 A. Either that, or they just felt sorry

9 for them.

10 MR. BAIR: Didn't complete the tests?

11 THE WITNESS: Just didn't keep them - that's

12 the only thingI can assume. If officers make an

13 error, it's far more likely to be a release than an

14 arrest. They don't arrest verymanyincorrectly,

15 but theyrelease enough incorrectly that, 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 12 inches 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 of the 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 of all, the determination is 8 steps, and we talked about how the officer has to

9 made whether the eyes can track the stimulus 9 use common sense.

10 smoothly, or whether they jerk 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 "You must pivot on your foot using three

18 seconds, is there a distinctjerking, not just a 18 steps to turn around."

19 little tremor? Because that can occur because it's 19 A. I'm not aware of the source of that.

20 an uncomfortable position. There needs to be a 20 Q. This is part of the problem, 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't think that

24 when there's the first onset ofjerking. In other 24 would do any harm unless he scored an error for

25 words, has the individual deviatedhis eyes 40 25 failure to take three steps. 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 of those 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. That gets 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 is just 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. What you'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 or below .10.

17 individuals, "I want you to take nine heel-to-toe 17 Q. If I, 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 back along the line in the sameway with nine 22 BY MR. KAPSACK:

23 heel-to-toe steps. Do you understand?" 23 Q. Could be getting worse, because we've

24 And ifthe individual says "I don't 24 never studied that aspect.

25 understand," then the officer repeats the 25 A. Could be. Sometimes officers tell me

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1 recreate all the same variables in the laboratory

2 that you have at roadside, whichis one of the

3 reasons I wanted to 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 the laboratory fairly well lit It's not the kind

10 of nighttime stop that officersget involvedin.

11 A. True. Another important variable is

12 that those officers had just been trained, with one

13 exception, and that was in the secondstudy. None

14 of them had heard of Horizontal Gaze Nystagmus

15 before. It takes a period of learning 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 OFF THE RECORD)

21 BY MR. KAPSACK:

22 Q. There also must be a period of

23 institutional learning for which most police

24 departments are notoriously 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 of the 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, if you

19 understand me?

20 A. I understand you. I'm trying to think

21 if there'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 if the wind is blowing or it'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. If it 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't think 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 THE wrTNESS: It can, and I think it depends

17 on the individual. "Depending on where 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 MR BAIR: 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 of the 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 never been 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't remember now what they were.

15 MR. BAIR: I think Ijust would like to get

16 down specifically what those three tests are. If

17 you could,tell us the walk 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 THE WITNESS: 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 her head still, and theofficer or

25 person administering thetest holds the stimulus

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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 of the 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 of time

5 they can invest in any one stop. So the

6 redundancy —I can't justify 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 of a maximum of testing, whether roadside or

13 educational or psychological or medical testing,

14 that if it'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 have cancer, I

23 thinkhe wouldbe a little puzzled. He wouldlike

24 to see all his markers, blood tests, EKG's,

25 pointingin one direction to give him some

Page

45

46

1 confidence in his diagnosis.

2 So instead of saying, "Horizontal Gaze

3 Nystagmus is a pretty good test and predictor;

4 we'll just go with that," you really need more

5 evidence, in my view. And I think that'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't have 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't know.

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,if not

5 100 percent of the time these tests are given on

6 the side of the 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 working here, and

10 it works both ways. Certainly, in the controlled

11 environmentwhere there was no consequenceto an

12 officer's error, that had to affect the data. If

13 you look at the data, you can see it did.

14 One of the 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 .10 when, in fact, they weren't

18 If you look at the data as I did, you discover that

19 their criterion was really .08. In otherwords,

20 they were saying arrest at the point they saw

21 significant impairment. That was .08, not .10.

22 Their sergeants are not going to be

23 upset and the lieutenantis not going to be upset

24 if they make an error, and this person is not going

25 back on the road driving impaired. So you can't

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1 believe we left off historically 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 start with 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 if we used the word

23 "recommend." What you do in the final report is

24 you report everything you did. Everything. Who

25 the subjects were, how you did the experiment, your

Page 41

1 data analysis. Then you reach some conclusions

2 based on that set of work. 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'm not going to ask you what

9 NHTSA did, because you don't work for them so you

10 don't know. 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 other words, to standardize

18 them and develop 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 make it

23 Q. Some fme-tuning?

24 A. Some fine-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, if you recall?

Well, the final report was in '81,

7 which leads me to believe it would have been '79.

8 I don't recall the exact date of the initiation,

9 but it was, again, a two-and-a-half to 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, but the design was similar.

19 We brought ten police officers in, trained them how

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 100 of 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 If you bring the subjects back,

5 produce the same BAC, have them examined againwith

6 the same tests, sometimes by the same officer,

7 that's one kind of check. Sometimes by a different

8 officer. Do you get the same results?

9 And you have to have two

10 administrations of the test battery 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 big enough. There were a

15 lot of things 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.

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1 talking about here, has not changed.

2 'Let me addthatthedrug recognition

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

15 just started doing this test, and they say it works

16 really well"?

17 Have you had that kind of information

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 if it works"?

22 A. No. First of all, I see a lot of road

23 tests used by officers because I 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 of any 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 of thing,

18 you would know about it?

19 . a. Yes, I would. Let me add, there has

20 been a revalidation or validation study for

21 the .08. That was done by a research group called

22 National Public Services Research Institute in

23 t-andover, Maryland.. It was done two or three years

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 of themselves,

14 don't state whether the person is able to drive the

15 vehicle. In other words, these tests show there is

16 a likelihood that someone is over .1, and since the

17 medical community is pretty much in agreement

18 over .1 means you're not capable of operating 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. What you're asking is, are

24 these tests of driving? They are not If they

25 weretests of driving, theywouldbe field driving I

Ptge39

1 tests. I can elaborate on the reasons and

2 everything behind that if you want, but they are

3 not tests of driving. They are tests of sobriety.

4 There's a whole series of literature 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 of alcohol, and then you go to the literature or

10 the expert or the doctor to say what effect that

11 level of alcohol will have on a person'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 a judgment about theirsobriety or presence

24 of alcohol or impairment by alcohol, if you will.

25 Q. To fill in the blanks a little bit, I

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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 Cn if th^y Hr^'t do that that's

8 important. And then whether or not the results

9 bnvr n? Tmirh mutininc fin ymi would lik? *hrw **

10 bepomes problematic;—-—

11 Q. Let me see if I 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. If the officer tells the person to

17 take only seven steps instead of nine, but the

18 person falls off the 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 other hand, if the officer

22 says "I want you to take 35 steps," and after 13 or

23 14 the guy steps off the 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 could be 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 of it 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 of the 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 sort of also 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 NHTSA manual?

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 the NHTSA manual

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 of them, but I didn't review them.

23 MR. BAIR: But, really, the conclusions from

24 your first study, more or less, have remained the

25 same? All of your 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 - NHTSA developed the

5 scoring; I didn't There have been some slight

6 changes. NHTSA made 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 of the driver?

13 THE WITNESS: Unless the Hand-Pat was part of

14 that original series that we pilot tested, the

15 answer is no. I don't remember if it was in that,

16 but we didn't use it in either of the 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 continued to stick with

22 the three that you originally determinedto be the

23 most accurate?

24 THE WITNESS: Standardizedfield sobriety

25 testing, which includes the three tests we're

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r

1 to why it was left behind, so to speak?

2 A. It was a sensitive test, as I recall,

3 but it just wasn'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, it is.

18 Q. How important? Is it critical, fatal,

19 sort of important?

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 If Officer 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't relate to any of the

6 research data or any nf the acnimulaterl data T^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 just not 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 and it's going to be subject

18 to the same interpretation and it'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 So if it's given according to the

25 standardized criteria, then the conclusions that

Page 30

1 come from it or the data that's collected from tha

2 individual canbe related to the data mat you'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 back to the

19 data? Can you say, "Since the officer was only

20 80 percent standardized, I should adjust the final

21 result," or does it mean the final result really

22 has no backing?

23 A Neither of the above. —-

24 Q. Okay.

25 A. jjvoulri nf>t trv to "lTM** ** hy «"y

Page

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

2 jdndof depends onwhat the deviation was. Let me

3 give you an example.

4 I once saw an officer taken 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 nine heel-toe steps,

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 argument beingthat'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 think you'd have to

18 evaluate it 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 a world-shaking error. There are

22 other things that are more distressing.

23 If you don't givethe instructions

24 properly, you don't tell them to leave their arms

25 at their side, count their steps out loud, take

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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 our facility to have all thesepeople in our

11 facility, we did it on weekends, Saturdays and

12 Sundays. We had two police officers per day, and

13 as I recall, about 15 to 20 subjects, and we ran a

14 total of 238. 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 the experiment

19 A. We did.

20 Q. Again, out of everybody 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 of the 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 of the 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 was just 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 your hard 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 would have thought the

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 happens next, do you determine

3 that three of these 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. You don't crunch them on

15 your calculator. They're very sophisticated

16 statistical methods for what we needed to do, which

17 is not just 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 second best

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 the battery 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, but if you've already measured

4 balance, you don't gain much by measuring it

5 again. So although Romberg, which was one of our

6 alternates, is a very good test, an excellent test,

7 if you'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

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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 of the 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't know 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 would have 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 changed to a different 23 had no alcohol. The actual range of BACs 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 enforcement agencies 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 the CIA 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 allowed to 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. Although I 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 brought them 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 officers didn't see the people

16 going to conduct the experiment 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 peak BAC, measuredvia breath instrument, and

19 A. I'm sure we did. 19 they were introducedinto the room. At that point,

20 Q. Because you went ahead? 20 the officer could ask questions.

21 A. We went ahead. 21 We had one of our staff in 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 couldaskthem thekindsof things 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

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1 Q. As you said before, you weren't

2 just - 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 first experiment. My colleague, 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 of your

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 and if you don't recall that's fine.

20 At any time during this process, did

21 the agency or department, 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 to

Page 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't know about it early

14 on, and so I don't know if NHTSA knew 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't know 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 of the pilot

23 experiment with six tests mat we believed might

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 a bad leg -" 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 of the 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-odd years ago, you had to refresh your

24 recollection.

25 Could you tell us what you looked at?

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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 officer in the decision you just talked 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 not been a

24 big emphasis on alcohol enforcement I don't know,

25 but I would suspect they just developed 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 of those

10 were cut out for economic reasons or just

11 practicality reasons, like you said, the officer

12 not having the time or equipment, or not being safe

13 to conduct some of these tests on the side of the

14 road, which is the environment the officer finds

15 himself in; 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 of reasons 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't jump 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't know.

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 overnight decision.^ 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 just give 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 part of the

25 decision process and part of the evolvement of what

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 quite right, 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"; if a 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 and if it appeared it wasn't going 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 or the other. But in

19 research, numbers are what make the decisions, not

20 your subjective evaluations.

21 Q. To state the obvious, because that's

22 part of the reason why we're here, this was all

23 done in what is considered scientifically

24 acceptable means; correct, all these testings?

25 A. That's correct.

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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 of tests 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 DUI teams, 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 the wide-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 we couldn't

5 suggest adding apparatus on the basis of both cost

6 and just practicality.

7 . We had to mink about officer safety,

8 what they could do, and all those things eliminated

9 most of the 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've been puzzled about this for a

5 long time, that sincethe automobile wasintroduced

6 around the turn of the 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, if you'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 to recognize the signs andsymptoms associated

24 with impairment by alcohol.

25 I forgot why I got onto that long

Page 12

LORI RAYE COURT REPORTERS (818.508.1418) Page 9-Page 12
EXAM UNDER 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 the transcript. 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 your cv that you gave me

12 today.

13 Is this an accurate and up-to-date

14 copy of your cv?

15 A. It is.

16 Q. I'm not going to go into it in any

17 depth.

18 (THE DOCUMENT REFERRED TOWAS 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 father knew and his father before Him knew.

5 A. Well, I'm one of the founders of and

6 the current director of the 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 you know about

10 that process, but contracts are issued when the

11 government agency identifies an area of research

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 for proposals. Theyrecognized that the average

21 blood alcohol concentration of arrests nationwide

22 was .17 percent BAC.

23 The prevailing 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 to jail are not doing so because the officer is

4 either not detecting the driving pattern that leads

5 him to stop the vehicle, or once he stops a

6 vehicle, he's not recognizing the presenceof

7 alcohol.

8 The National Highway Safety

9 Administration actuallyfunded several research

10 contracts, but the RFP that 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, so form, 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 three tests,

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 withjust those 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,et cetera,is covered in your CV;

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't have 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, so I'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 of times?

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

LORI RAYE COURT REPORTERS (818.508 1418) Page 5 - Page 8
EXAM 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

*

Page 3

LOS ANGELES, CALIFORNIA, FRIDAY, APRIL 17,1998

12:20 p.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 the past,

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

LORI RAYE COURT REPORTERS (818.508.1418) Page 1 - Page 4
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