96-541

 

No. 96-541

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 108

 MARY IRIS HULSE,

 Petitioner and 

Appellant, 

 

 v.

 STATE OF MONTANA, 

DEPARTMENT 

 OF JUSTICE, MOTOR VEHICLE 

DIVISION, 

 

 Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

 In and for the County of Stillwater,

 The Honorable Diane G. Barz, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Gary R. Thomas, Thomas Law Office, Red Lodge, Montana

 For Respondent:

 Joseph P. Mazurek, Attorney General, Tammy K. Plubell,

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Assistant Attorney General, Helena, Montana; Douglas Howard,

Columbus Town Attorney, Columbus, Montana

 

 Heard: November 18, 1997

 Submitted on Briefs: November 18, 

1997 

 Decided: May 5, 1998

 Filed:

 __________________________________________

 Clerk

Justice James C. Nelson delivered the Opinion of the Court

¶1 Defendant Mary Hulse (Hulse) appeals from the Findings of Fact, 

Conclusions of Law and Order of the Thirteenth Judicial District Court, 

Stillwater County, denying her petition to reinstate her driving privileges after 

those were suspended for her refusal to take a breath test pursuant to § 61-8-402, 

MCA, as well as the court's denial of her motion in limine to exclude 

evidence concerning the results of field sobriety tests conducted prior to her 

arrest for driving while under the influence of alcohol. We affirm. 

¶2 The sole issue raised on appeal is whether the District Court erred when 

it denied Hulse's petition to reinstate her driver's license. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶3 On March 23, 1996, at 7:30 p.m., Officer Patrick Kennedy was 

patrolling eastbound on Pike Avenue, one of the main streets in Columbus, 

Montana, when he observed Hulse drive away from the New Atlas Bar. 

Although it was dark outside, Hulse proceeded westbound on Pike Avenue 

without her vehicle headlights on. Hulse and Officer Kennedy passed each 

other about one and one-half blocks later, and Hulse continued driving without 

her headlights on. In response, Officer Kennedy activated his overhead lights, 

made a U-turn and drove behind Hulse for approximately two blocks, but 

Hulse did not stop. Instead Hulse turned onto another street and Officer 

Kennedy activated his siren. Hulse drove for another one-half block before 

she turned into the driveway of her friend, a passenger in Hulse's vehicle. 

Officer Kennedy pulled in behind Hulse and positioned his vehicle to block 

the driveway. 

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¶4 Officer Kennedy approached Hulse, identified himself, and informed 

her he had stopped her because she was driving without her headlights on after 

dark. Hulse responded that she did have her headlights on. Officer Kennedy 

asked her to produce her driver's license, registration and proof of insurance. 

Hulse produced her registration and after several attempts produced her proof 

of insurance. When Officer Kennedy again asked her for her driver's license, 

Hulse became agitated. After Officer Kennedy requested her driver's license 

for the third time, Hulse produced it. 

¶5 During this time, Officer Kennedy smelled the odor of alcohol on 

Hulse's breath and asked her if she had been drinking. Hulse first responded 

in the negative but later stated she drank one eight-ounce glass of beer. 

Officer Kennedy asked Hulse to get out of her car and step down to the 

sidewalk to perform some field sobriety tests. At this time, Officer Kennedy 

noticed that Hulse's eyes were bloodshot and that she had difficulty walking. 

He administered three field sobriety tests (the Horizontal Gaze Nystagmus 

(HGN), the one-legged stand, and the walk-and-turn) and Hulse performed 

poorly on the tests. After completing the field sobriety tests, Officer Kennedy 

arrested Hulse for driving under the influence of alcohol (DUI), handcuffed 

her, and helped her into the back seat of the patrol car. 

¶6 Officer Kennedy transported Hulse to the sheriff's office and read her 

Montana's Implied Consent Law. Officer Kennedy asked Hulse to submit to 

a breath test, but Hulse refused. As a result, pursuant to § 61-8-402, MCA 

(1995), Officer Kennedy seized Hulse's driver's license. On March 26, 1996, 

pursuant to § 61-8-403, MCA (1995), Hulse filed a petition in the Thirteenth 

Judicial District Court, Stillwater County, asking the court to review the 

suspension of her driver's license and requesting the court reinstate her driver's 

license until the court held her license reinstatement hearing. The District 

Court entered an order temporarily reinstating Hulse's driver's license and set 

a hearing date for May 20, 1996. 

¶7 On May 15, 1996, Hulse filed a motion in limine to exclude Officer 

Kennedy's testimony concerning the results of the field sobriety tests Hulse 

performed prior to her arrest, including the Horizontal Gaze Nystagmus 

(HGN) test. Specifically, Hulse sought to exclude evidence of the field 

sobriety tests as constituting an illegal search and the HGN test for failing to 

meet the Daubert criteria for admission of scientific evidence. On May 17, 

1996, the State filed an objection to Hulse's motion in limine, arguing that 

evidence of these field sobriety tests was admissible under Montana law. The 

District Court did not issue a written order on Hulse's motion in limine. 

However, on May 20, 1996, at the beginning of the license reinstatement 

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hearing, the court ruled that "[f]or the record, the Motions in Limine are 

absolutely denied. They are completely inappropriate for a hearing of this 

nature[.]" 

¶8 Consequently, in addition to testifying about the facts and 

circumstances surrounding his initial stop and subsequent arrest of Hulse, 

Officer Kennedy testified as to his administration and evaluation of the field 

sobriety tests Hulse performed prior to her arrest for driving while under the 

influence of alcohol. He testified that after completing the basic training 

course at the Montana Law Enforcement Academy where he received 40 hours 

of training in the administration and evaluation of the HGN, the one-legged 

stand, and the walk-and-turn field sobriety tests, he began working as a 

patrolman for the town of Columbus, Montana, on July 5, 1995. Furthermore, 

Officer Kennedy described each test and explained in detail his administration 

of these tests on Hulse as well as his evaluation that she performed poorly on 

each of the three field sobriety tests. 

¶9 On May 29, 1996, after considering the hearing testimony, the District 

Court entered its findings of fact, conclusions of law and order denying 

Hulse's petition to reinstate her driver's license and lifting the stay on the 

suspension of her license. From this order, Hulse appeals. 

DISCUSSION 

¶10 Did the District Court err when it denied Hulse's petition to 

reinstate her driver's license? 

¶11 Pursuant to § 61-8-403(4)(a), MCA (1995), in a driver's license 

reinstatement proceeding, a district court is limited to considering whether: 

(i) a peace officer had reasonable grounds to believe that 

the person had been driving or was in actual physical control of 

a vehicle upon ways of this state open to the public while under 

the influence of alcohol, drugs, or a combination of the two; 

(ii) the person was placed under arrest; and 

(iii) the person refused to submit to the test or tests. 

¶12 The reasonable grounds requirement set forth in § 61-8-403(4)(a)(i), 

MCA (1995), is the equivalent of particularized suspicion as defined 

in § 46-5-401, MCA. Seyferth v. State (1996), 277 Mont. 377, 384, 922 P.2d 494, 498 

(citing Anderson v. State (1996), 275 Mont. 259, 263, 912 P.2d 212, 214). 

Section 46-5-401, MCA, provides: 

Investigative stop. In order to obtain or verify an account of 

the person's presence or conduct or to determine whether to 

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arrest the person, a peace officer may stop any person or vehicle 

that is observed in circumstances that create a particularized 

suspicion that the person or occupant of the vehicle has 

committed, is committing, or is about to commit an offense. 

"When a police officer seizes a person, such as in a brief investigatory stop, 

the Fourth Amendment right against unreasonable searches and seizures 

applies." Bauer v. State (1996), 275 Mont. 119, 125, 910 P.2d 886, 889. 

Therefore, because an investigatory stop must be justified by an objective 

manifestation that the individual stopped "has committed, is committing, or is 

about to commit an offense," we have adopted a two-part test to evaluate 

whether a police officer had sufficient cause to stop an individual. First, the 

State must establish objective data from which an experienced officer can 

make certain inferences. Second, the State must establish a resulting suspicion 

that an occupant of a vehicle is, or has been, engaged in wrongdoing or was 

a witness to criminal activity. Seyferth, 277 Mont. at 384, 922 P.2d at 498; 

State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296. Therefore, 

whether particularized suspicion exists is a question of fact dependent on the 

totality of the circumstances. Anderson, 275 Mont. at 263, 912 P.2d at 214 

(citing State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540, 542-43). 

¶13 Next, to determine whether a person was placed under arrest, § 61-8-403(4)(a)(ii), 

MCA (1995), we must consider whether an officer had the right 

to make the arrest. Grinde v. State (1991), 249 Mont. 77, 80, 813 P.2d 473, 

475. An officer has the right to make an arrest if the arrest is supported by 

probable cause. Section 46-6-311, MCA. Probable cause for an arrest exists 

when the facts and circumstances within the arresting officer's personal 

knowledge are sufficient to warrant a reasonable person to believe that the 

suspect has committed an offense. Jess v. State Dept. of Justice, MVD (1992), 

255 Mont. 254, 261, 841 P.2d 1137, 1141. Additionally, particularized 

suspicion for a stop can ripen into probable cause to arrest based on the 

occurrence of facts or incidents after the stop. Jess, 255 Mont. at 261, 841 

P.2d at 1141. That is, "an officer who makes an investigative stop is not 

precluded from making an arrest based on observations made during the stop." 

Anderson, 275 Mont. at 265, 912 P.2d at 215. 

¶14 Finally, if an officer had particularized suspicion which ripened into 

probable cause to arrest an individual for DUI, the court must determine 

whether the person refused to submit to a blood alcohol test or tests, 

§ 61-8-403(4)(a)(iii), MCA (1995). Because a presumption of correctness attaches 

to the State's act of suspending or revoking a driver's license, the driver bears 

the burden of proving that the suspension or revocation of a driver's license 

was improper. Jess, 255 Mont. at 259-60, 841 P.2d at 1140. We review a 

denial of a petition for reinstatement of a driver's licence to determine whether 

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the district court's findings of fact are clearly erroneous and whether its 

conclusions of law are correct. Anderson, 275 Mont. at 262, 912 P.2d at 214 

(citing Bauer, 275 Mont. at 122, 910 P.2d at 888). 

¶15 Hulse argued in the District Court that the second factor under § 61-8-403(4)(a), 

MCA (1995), was not satisfied because her arrest was not supported 

by probable cause. As indicated in her notice of appeal, Hulse appeals from 

the District Court's denial of her petition for reinstatement of driver's license. 

However, within her appellate briefs, Hulse more specifically argues the 

impropriety of the District Court's denial of her motion in limine to exclude 

evidence of the field sobriety test results. Accordingly, we will also review 

the District Court's denial of Hulse's motion in limine for abuse of discretion. 

As we have previously stated: 

"The purpose of a motion in limine is to prevent the 

introduction of evidence which is irrelevant, immaterial, or 

unfairly prejudicial." Accordingly, the authority to grant or 

deny a motion in limine "rests in the inherent power of the court 

to admit or exclude evidence and to take such precautions as are 

necessary to afford a fair trial for all parties." Thus, we will not 

overturn a district court's grant [or denial] of a motion in limine 

absent an abuse of discretion. 

City of Helena v. Lewis (1993), 260 Mont. 421, 425-26, 860 P.2d 698, 700 

(citations omitted). Furthermore, "[t]his Court will uphold the decision of a 

district court, if correct, regardless of the lower court's reasoning in reaching 

its decision." Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 

(citations omitted). 

¶16 In the case at bar, Hulse does not dispute that she refused to submit to 

a blood alcohol test. However, she does argue that the suspension of her 

license was improper because her arrest was invalid due to a lack of probable 

cause. See § 61-8-403(4)(a)(ii), MCA (1995). In this regard, Hulse contends 

that the District Court abused its discretion when it summarily denied her 

motion in limine which sought to exclude evidence of the field sobriety tests 

as constituting an illegal search and the HGN test for failing to meet the 

Daubert criteria for admission of scientific evidence. Ultimately, Hulse argues 

that the District Court erred when it denied her petition to reinstate her driver's 

license. 

¶17 The State responds that the District Court's summary denial of Hulse's 

motion in limine was proper because a license reinstatement hearing is civil in 

nature, and, therefore, the exclusionary rule does not apply. Additionally, the 

State contends the motion in limine was not the appropriate mechanism for 

attacking the foundation of testimony regarding HGN test results. 

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Alternatively, the State argues that even if the motion in limine was 

appropriate, the District Court still reached the right result in denying the 

motion based on current Montana law. 

¶18 We will not address the State's arguments concerning the applicability 

of the exclusionary rule in civil license reinstatement hearings and the 

impropriety of using a motion in limine to attack the foundation of testimony 

regarding HGN test results because these arguments are raised for the first 

time on appeal. See State v. Fuhrmann (1996), 278 Mont. 396, 404, 925 P.2d 

1162, 1167 (citing State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 

1013, 1016). Rather, we will address the merits of Hulse's arguments that the 

District Court abused its discretion in summarily denying her motion in limine. 

¶19 Hulse first argues that field sobriety tests, such as the HGN, the 

one-legged stand, and the walk-and-turn, which she performed, constitute a search 

and seizure of an individual within the meaning of both Article II, Section 11 

of the Montana Constitution and the Fourth Amendment to the United States 

Constitution and thereby implicate an individual's right to privacy under 

Article II, Section 10 of the Montana Constitution. Consequently, Hulse 

contends that these warrantless searches will only be constitutional if 

supported by probable cause coupled with exigent circumstances. Hulse 

asserts that the information Officer Kennedy had at the time he administered 

the field sobriety tests was insufficient to provide him with probable cause to 

believe she was driving under the influence of alcohol. Therefore, Hulse 

argues the tests violated her constitutional right to be free from unreasonable 

searches and seizures, and, thus, rendered her subsequent arrest invalid as 

well. As such, Hulse requests that this Court reverse our decision in State v. 

Purdie (1984), 209 Mont. 352, 680 P.2d 576, wherein we held that the 

administration of field sobriety tests does not constitute a search under the 

Montana or federal constitutions. In turn, Hulse suggests we adopt the rule 

that field sobriety tests constitute a search requiring probable cause as adopted 

in State v. Nagel (Or. 1994), 880 P.2d 451, and People v. Carlson (Colo. 

1984), 677 P.2d 310. 

¶20 The State first responds that we should not disrupt current Montana 

case law holding that field sobriety tests do not constitute a search. See 

Purdie, 209 Mont. 352, 680 P.2d 576. However, the State asserts in the 

alternative that if this Court determines that field sobriety tests do constitute 

a search requiring probable cause, the more stringent standard of probable 

cause was satisfied at the time Officer Kennedy requested Hulse perform the 

field sobriety tests. Furthermore, the State suggests that if this Court reverses 

its holding in Purdie and determines that field sobriety tests constitute a search 

under the Montana and federal constitutions, we should adopt particularized 

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suspicion, not probable cause, as the appropriate standard for the permissible 

administration of field sobriety tests. 

¶21 Article II, Section 10 of the Montana Constitution provides that "[t]he 

right of individual privacy is essential to the well-being of a free society and 

shall not be infringed without the showing of a compelling state interest." 

Furthermore, Article II, Section 11 of the Montana Constitution provides: 

Searches and seizures. The people shall be secure in their 

persons, papers, homes and effects from unreasonable searches 

and seizures. No warrant to search any place, or seize any 

person or thing shall issue without describing the place to be 

searched or the person or thing to be seized, or without probable 

cause, supported by oath or affirmation reduced to writing. 

Likewise, the Fourth Amendment to the United States Constitution provides: 

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no Warrants shall issue, but 

upon probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons 

or things to be seized. 

¶22 In State v. Carlson, we defined a "search" as the use of some means of 

gathering evidence, such as a visual examination, which infringes upon a 

person's reasonable expectation of privacy. State v. Carlson (1982), 198 

Mont. 113, 119, 644 P.2d 498, 501 (citing United States v. Hartley 

(U.S.D.C.Fl. 1980), 486 F.Supp. 1348, 1354). Therefore, to determine 

whether an unlawful search has occurred we must first consider whether the 

government has intruded into an area where an individual has a reasonable 

expectation of privacy. State v. Scheetz (Mont. 1997), 950 P.2d 722, 724, 54 

St.Rep. 1286, 1288. "Where no reasonable expectation of privacy exists, there 

is neither a 'search' nor a 'seizure' within the contemplation of the Fourth 

Amendment of the United States Constitution or Article II, Section 11 of the 

Montana Constitution." Scheetz, 950 P.2d at 724-25, 54 St.Rep. at 1288. We 

apply a two-part test to determine whether an individual has a constitutionally 

protected right of privacy. First, the individual must have either a subjective 

or an actual expectation of privacy. Second, the individual's expectation of 

privacy must be viewed by society as reasonable. State v. Solis (1984), 214 

Mont. 310, 314, 693 P.2d 518, 520. 

¶23 In Purdie, we held that a field sobriety test, as a mere observation of a 

person's physical behavior, does not constitute a search because an individual 

lacks any reasonable expectation of privacy in his physical behavior. Purdie, 

209 Mont. at 355-56, 680 P.2d at 578. A police officer stopped Purdie as a 

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part of traffic control at a vehicular accident site. When the officer spoke with 

Purdie, he smelled alcohol and thereafter observed Purdie drive erratically 

from the accident site. As a result, the officer pursued Purdie and stopped 

him. The officer then requested that Purdie exit his vehicle and perform a 

field sobriety test. Thereafter, the officer arrested Purdie for driving under the 

influence. Purdie, 209 Mont. at 353, 680 P.2d at 577. In response to Purdie's 

motion to suppress certain evidence, the District Court ruled that the results of 

the field sobriety test, a handwriting specimen and the opinions and 

observations of police officers concerning Purdie's sobriety were admissible. 

Purdie, 209 Mont. at 354, 680 P.2d at 577. 

¶24 After a jury found him guilty of driving under the influence, Purdie 

appealed, arguing in part that the district court erred in admitting the results of 

the field sobriety test. Specifically, Purdie asserted that the field sobriety test 

constituted an illegal warrantless search under the Montana and federal 

constitutions. Purdie, 209 Mont. at 353-54, 680 P.2d at 578. We disagreed, 

holding that the administration of field sobriety tests constitutes a mere 

observation of an individual's physical behavior, and, therefore, does not 

constitute a search under the Montana or federal constitutions: 

[T]his field sobriety test failed to constitute a search protected 

by either the federal or Montana Constitutions. The officer 

merely observed appellant's behavior which hardly amounts to 

an intrusion into his reasonable expectation of privacy. If 

observed behavior occurs in a place where the defendant 

knowingly exposes it, then no Fourth Amendment violation 

occurs. 

Purdie, 209 Mont. at 355, 680 P.2d at 578. We explained that like voice and 

handwriting samples, an individual lacks any reasonable expectation of 

privacy in his physical behavior. Purdie, 209 Mont. at 355-56, 680 P.2d at 

578. 

¶25 In addressing search and seizure issues in contexts other than those 

involving field sobriety tests, we have explained that Montanans are afforded 

broader privacy protections under Article II, Section 10 of the Montana 

Constitution than under the Fourth Amendment to the United States 

Constitution or Article II, Section 11 of the Montana Constitution. See State 

v. Nelson (1997), 283 Mont. 231, 241-42, 941 P.2d 441, 448. In Nelson, we 

held that while medical records were not historically protected under the 

Fourth Amendment's prohibition against unreasonable searches and seizures, 

these records were protected under Montana's separate constitutional guarantee 

of privacy because Article II, Section 10 encompassed not only "autonomy 

privacy" but confidential "informational privacy" as well. Nelson, 283 Mont. 

at 241-42, 941 P.2d at 448. Therefore, we further held that to give the right 

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to informational privacy any meaning the right must "at a minimum, 

encompass the sanctity of one's medical records." Nelson, 283 Mont. at 242, 

941 P.2d at 448. 

¶26 We explained that, unlike telephone company billing records, medical 

records fall within the "zone of privacy" protected by Article II, Section 10 of 

the Montana Constitution. Nelson, 283 Mont. at 242, 941 P.2d at 448. We 

pointed out the Montana Legislature has recognized that "health care 

information is personal and sensitive information that if improperly used or 

released may do significant harm to a patient's interests in privacy and health 

care or other interests." Nelson, 283 Mont. at 242, 941 P.2d at 448 (quoting 

§ 50-16-502(1), MCA). We concluded that medical records are 

"quintessentially 'private' and deserve the utmost constitutional protection." 

Nelson, 283 Mont. at 242, 941 P.2d at 448. 

¶27 Nonetheless, we further explained that an individual's privacy rights 

under Article II, Sections 10 and 11 of the Montana Constitution are not 

absolute. Nelson, 283 Mont. at 243, 941 P.2d at 449. Likening an 

investigative subpoena which seeks to discover protected medical records or 

information to a search warrant, we held that the strictures of the Fourth 

Amendment and Article II, Section 11 of the Montana Constitution would be 

satisfied only upon a showing of probable cause that an offense was 

committed and medical information relating to the offense is in the possession 

of the person or institution to whom the subpoena is directed. Nelson, 283 

Mont. at 243-44, 941 P.2d at 449. 

¶28 In light of our recent decision in Nelson recognizing that Article II, 

Section 10 of the Montana Constitution encompasses "informational privacy," 

we agree with Hulse that it is appropriate at this time to re-examine our 

holding in Purdie that field sobriety tests do not constitute a search because an 

individual lacks any reasonable expectation of privacy in his physical 

behavior. In contrast to our holding in Purdie, the Colorado Supreme Court 

in People v. Carlson, stated that an individual has a constitutionally protected 

privacy interest in the "coordinative characteristics" exposed by the 

administration of field sobriety tests. Carlson, 677 P.2d at 317. 

A roadside sobriety test involves an examination and evaluation 

of a person's ability to perform a series of coordinative physical 

maneuvers, not normally performed in public or knowingly 

exposed to public viewing, for the purpose of determining 

whether the person under observation is intoxicated. 

Carlson, 677 P.2d at 316. 

¶29 The court held that to be constitutionally valid field sobriety tests may 

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only be administered if an officer had probable cause to arrest a driver for 

driving under the influence or when a driver voluntarily consents. Carlson, 

677 P.2d at 317-18. The court, however, pointed out that an individual driving 

a vehicle has no legitimate expectation of privacy in his physical traits and 

demeanor that are in plain sight of a police officer during a valid traffic stop. 

Carlson, 677 P.2d at 316. The court explained that an officer's observation of 

an individual's gait upon exiting the vehicle and walking to the rear of the 

vehicle does not differ from observation of an individual's general physical 

characteristics, such as height and weight. Carlson, 677 P.2d at 316. 

¶30 Similarly, the Oregon Supreme Court held in Nagel that field sobriety 

tests were searches under both Article I, Section 9 of the Oregon Constitution 

and under the Fourth Amendment to the United States Constitution. Nagel, 

880 P.2d at 457-59. In concluding that these tests were searches under the 

Fourth Amendment, the Court explained that the administration of field 

sobriety tests ran counter to an individual's reasonable expectation of privacy 

for two reasons. First, an individual must perform certain maneuvers not 

normally performed in public, and, thus, the tests expose to view certain things 

not otherwise obvious through passive observation of an individual. Nagel, 

880 P.2d at 457-58. 

Unlike the quality of one's voice or one's handwriting, people do 

not regularly display that type of behavior to the public--there 

is no reason to believe that motorists regularly stand alongside 

a public road reciting the alphabet, count backward from 107, 

stand upon one leg while counting from 1001 to 1030, or walk 

a line, forward and back, counting steps and touching heel to 

toe. 

Nagel, 880 P.2d at 457. 

Second, an individual has a reasonable expectation of privacy in the 

information an officer obtains from the field sobriety tests. The court 

explained that like the chemical analysis of urine, "a field sobriety test may 

reveal evidence of equally private facts about an individual, including whether 

the individual is illiterate, has alzheimer's disease, or suffers from multiple 

sclerosis." Nagel, 880 P.2d at 458 (citing Skinner v. Railway Labor 

Executives' Assn. (1989), 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 

L.Ed.2d 639). 

¶31 The court concluded that because constitutionally protected privacy 

interests are implicated in both the process of conducting the field sobriety 

tests and in the information disclosed by the tests, these tests constitute a 

search under the Fourth Amendment to the United States Constitution. Nagel, 

880 P.2d at 458. The court held that based on the specific facts in Nagel, the 

field sobriety tests performed were reasonable; they were administered upon 

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probable cause to arrest Nagel and under exigent circumstances due to the 

evanescent nature of evidence of impairment resulting from blood alcohol. 

Nagel, 880 P.2d at 459. The court declined to address the constitutionality of 

Oregon's statutory scheme which authorized the administration of field 

sobriety tests upon less than probable cause. Nagel, 880 P.2d at 459. 

¶32 We recognize that law enforcement officers use field sobriety tests as 

investigative tools to assist them in discovering and arresting persons driving 

under the influence of alcohol. We agree with the Oregon Supreme Court in 

Nagel that, as such, field sobriety tests create a situation in which police 

officers may observe certain aspects of an individual's physical and 

psychological condition which would not otherwise be observable. See Nagel, 

880 P.2d at 455. Just as medical information may be revealed by subpoenaing 

a person's medical records or through the chemical analysis of a person's urine, 

so too is certain information concerning an individual's physical and 

psychological condition potentially revealed through the administration of 

field sobriety tests. See Nelson, 283 Mont. at 242-44, 941 P.2d at 448-49, and 

Nagel, 880 P.2d at 457-58. As such, this information falls within the zone of 

privacy protected by Article II, Section 10 of the Montana Constitution. In 

contrast, we point out, as did the Colorado Supreme Court in Carlson, that an 

individual has no reasonable expectation of privacy in his physical 

characteristics or behavior such as handwriting, speech, height, weight, gait, 

appearance or smell. See Carlson, 677 P.2d at 316. Therefore, an officer's 

observation of such physical traits during a valid traffic stop does not 

constitute a search. See Carlson, 677 P.2d at 316. 

¶33 For these reasons, we hold that field sobriety tests are not "merely 

observations" of a person's physical behavior, but, rather, constitute a search 

under the Fourth Amendment to the United States Constitution and, 

independently of the federal constitution, under Article II, Section 11 of the 

Montana Constitution because an individual's constitutionally protected 

privacy interests are implicated in both the process of conducting the field 

sobriety tests and in the information disclosed by the tests. See Nagel, 880 

P.2d at 458. Consequently, Purdie, 209 Mont. 352, 680 P.2d 576, and any 

other Montana case that has held that field sobriety tests are "merely 

observations" of a person's physical behavior are hereby overruled to that 

extent. 

¶34 Because an individual has a legitimate privacy interest in both the 

process of conducting the field sobriety tests and in the information revealed 

by the tests, this privacy interest may not be invaded absent a compelling state 

interest. Art. II, Sec. 10, Mont.Const. We have explained that "[a] compelling 

state interest 'exists where the state enforces its criminal laws for the benefit 

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and protection of other fundamental rights of its citizens.' " Solis, 214 Mont. 

at 319, 693 P.2d at 522 (quoting State ex rel. Zander v. District Court (1979), 

180 Mont. 548, 556, 591 P.2d 656, 660). Montana has a compelling interest 

to remove drunk drivers from our roadways. This compelling interest is 

embodied in both § 61-8-401, MCA (prohibiting driving while under the 

influence of alcohol or drugs), and § 61-8-406, MCA (making driving with an 

alcohol concentration of 0.10 or more per se illegal), as well as §§ 61-8-714, 

-722 and -723, MCA (1995) (providing escalating penalties for repeat 

offenders of §§ 61-8-401 and -406, MCA). Yet even with this compelling 

state interest, the State may not invade an individual's privacy unless the 

procedural safeguards attached to the right to be free from unreasonable 

searches and seizures are met. See Solis, 214 Mont. at 319, 693 P.2d at 522. 

¶35 Warrantless searches are per se unreasonable under the Fourth 

Amendment and Article II, Section 11 of the Montana Constitution; however, 

both federal and state law recognize certain specific exceptions to the warrant 

requirement. An investigatory stop is such an exception. State v. Collard 

(Mont. 1997), 951 P.2d 56, 60, 54 St.Rep. 1366, 1368. In Terry v. Ohio, the 

United States Supreme Court ruled that an officer's stop and search of an 

individual may be constitutionally permissible even in the absence of probable 

cause. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. 

Similarly, in Gopher, we held that "when a trained police officer has a 

particularized suspicion that the occupant of a vehicle is or has been engaged 

in criminal activity, or witness thereto, a limited and reasonable investigatory 

stop and search is justified." Gopher, 193 Mont. at 194, 631 P.2d at 296. See 

also § 46-5-401, MCA (permitting an officer to make an investigative stop on 

the basis of particularized suspicion). 

¶36 To determine whether a search conducted within an investigatory stop 

is reasonable, and, therefore, constitutionally permissible, we must balance the 

state's interest in conducting the search against the level of intrusion into an 

individual's privacy that the search entails. The United States Supreme Court 

in Terry held: 

[W]here a police officer observes unusual conduct which leads 

him reasonably to conclude in light of his experience that 

criminal activity may be afoot and that the persons with whom 

he is dealing may be armed and presently dangerous, where in 

the course of investigating this behavior he identifies himself as 

a policeman and makes reasonable inquiries, and where nothing 

in the initial stages of the encounter serves to dispel his 

reasonable fear for his own or others' safety, he is entitled for 

the protection of himself and others in the area to conduct a 

carefully limited search of the outer clothing of such persons in 

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an attempt to discover weapons which might be used to assault 

him. 

Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d 889, 911. 

¶37 Relying on the rationale of Terry, the Arizona Supreme Court held in 

State v. Superior Court that, although searches pursuant to the Fourth 

Amendment, field sobriety tests may be justified by a police officer's 

particularized suspicion that an individual was driving while intoxicated. 

Refusing to adopt the probable cause standard required by the Colorado 

Supreme Court in Carlson, the Arizona court explained: 

[T]he threat to public safety posed by a person driving under the 

influence of alcohol is as great as the threat posed by a person 

illegally concealing a gun. If nothing in the initial stages of the 

stop serves to dispel the highway patrol officer's [particularized] 

suspicion, fear for the safety of others on the highway entitles 

him to conduct a "carefully limited search" by observing the 

driver's conduct and performance of standard, reasonable tests 

to discover whether the driver is drunk. The battery of roadside 

sobriety tests is such a limited search. The duration and 

atmosphere of the usual traffic stop make it more analogous to 

a so-called Terry stop than to a formal arrest. 

State v. Superior Court (Ariz. 1986), 718 P.2d 171, 176 (citation omitted). 

Many other jurisdictions have similarly held that probable cause is not 

required before a law enforcement officer administers field sobriety tests. See 

State v. Taylor (Fla. 1995), 648 So.2d 701; State v. Lamme (Conn.App. 1989), 

563 A.2d 1372; State v. Gray (Vt. 1988), 552 A.2d 1190; State v. Stevens 

(Iowa 1986), 394 N.W.2d 388, cert. denied, 479 U.S. 1057 (1987); State v. 

Golden (Ga.App. 1984), 318 S.E.2d 693; State v. Wyatt (Haw. 1984), 687 P.2d 

544; State v. Little (Me. 1983), 468 A.2d 615. 

¶38 We agree with the sound rationale of the Arizona Supreme Court in 

Superior Court that public safety is equally threatened by a person driving 

under the influence of alcohol as by a person illegally concealing a gun. See 

Superior Court, 718 P.2d at 176. Because we recognize that field sobriety 

tests, like investigative stops, are important investigative tools used by police 

officers to determine whether probable cause for arrest exists, we also 

acknowledge that to require probable cause that an individual has been driving 

under the influence before allowing police officers to administer field sobriety 

tests would defeat the very purpose of these tests. Therefore, while we agree 

with the holdings in Carlson and Nagel that field sobriety tests constitute a 

search, we disagree that to be reasonable, and, therefore, constitutionally 

permissible, the tests must be supported by probable cause. Rather, we 

conclude that the State's interest in administering field sobriety tests based 

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upon particularized suspicion rather than the more stringent standard of 

probable cause substantially outweighs the resulting limited intrusion into an 

individual's privacy. Accordingly, we hold that just as an investigative stop 

must be based upon particularized suspicion to be constitutionally valid under 

both the Fourth Amendment to the United States Constitution and Article II, 

Section 11 of the Montana Constitution, field sobriety tests, as searches, must 

also be based upon particularized suspicion. 

¶39 In this regard, we note that particularized suspicion for the initial stop 

may also serve as the necessary particularized suspicion for the administration 

of field sobriety tests, providing the basis for the initial stop was of the nature 

that would lead an officer to believe that the driver was intoxicated. In other 

words, if an individual is driving erratically--e.g., if he is driving all over the 

road, crossing the center line and the fog line, weaving in and out of traffic, or 

braking for green lights--such evidence would serve as particularized suspicion 

both for the officer to initially stop the driver and to administer field sobriety 

tests. 

¶40 Likewise, we recognize that investigative stops can take on the quality 

of an escalating situation. As the Appellate Court of Connecticut explained: 

Once a lawful stop is made, a police officer's suspicions 

may become further aroused and the stop may become further 

prolonged and the scope enlarged as required by the 

circumstances, provided the scope of the investigation remains 

within the limits created by the facts upon which the stop is 

predicated and the suspicion which they arouse. 

Lamme, 563 A.2d at 1374 (citing Terry, 392 U.S. at 21-22, 29, 88 S.Ct. at 

1879-81, 1883-84, 20 L.Ed.2d 889). For example, if an officer only observed 

an individual driving with a broken taillight and after making his initial stop 

he did not observe any signs of intoxication, he would not have particularized 

suspicion that the driver was driving under the influence, and, therefore, would 

be prohibited from administering field sobriety tests. By contrast, if an officer 

stops a driver for a broken taillight and upon approaching this driver the 

officer does observe signs of intoxication, e.g., the driver's breath smells of 

alcohol, his eyes are bloodshot and glassy, or his speech is slurred, the officer 

would have a separate particularized suspicion that the individual was driving 

under the influence of alcohol, and, therefore, may administer field sobriety 

tests. If the driver should fail the field sobriety tests, the officer would then 

have probable cause to arrest this individual for driving under the influence of 

alcohol. 

¶41 The case at bar is a good example of such an escalating situation, 

Officer Kennedy first observed Hulse drive away from the New Atlas Bar and 

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down one of the main streets in Columbus, Montana, without her headlights 

on after dark in violation of § 61-9-201, MCA. In response, he activated his 

overhead lights to which she did not respond. After following her for two 

more blocks, Officer Kennedy activated his siren. Despite Officer Kennedy's 

actions, Hulse did not stop for another one-half block. This objective data 

established that Officer Kennedy's initial stop of Hulse was permissible 

because it was based on a particularized suspicion that Hulse had committed 

an offense. 

¶42 After Hulse pulled into her friend's driveway and stopped, Officer 

Kennedy approached Hulse, explained his reason for the stop, and asked Hulse 

to produce her vehicle registration, proof of insurance and driver's license. At 

this time, Officer Kennedy smelled alcohol on Hulse's breath and observed 

that her eyes were bloodshot. Additionally, he noted that Hulse had difficulty 

with her balance when she exited her vehicle. Furthermore, he observed that 

Hulse had difficulty producing her driver's license. Based on these 

observations, Officer Kennedy asked Hulse to perform three field sobriety 

tests. This objective data further established that Officer Kennedy had a 

separate particularized suspicion that Hulse was driving while under the 

influence of alcohol, and, therefore, his administration of field sobriety tests 

was a constitutionally permissible search under the Fourth Amendment to the 

United States Constitution and under Article II, Section 11 of the Montana 

Constitution. Because under the totality of the circumstances, the evidence of 

record is sufficient to support a particularized suspicion, we hold that the 

District Court's finding that Officer Kennedy had reasonable grounds to 

believe that Hulse was driving under the influence of alcohol is supported by 

substantial credible evidence and is not otherwise clearly erroneous. 

See § 61-8-403(4)(a)(i), MCA (1995).

¶43 Relying on Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, Hulse next argues that the District 

Court abused its discretion when it summarily denied her motion in limine and 

admitted evidence concerning results of the Horizontal Gaze Nystagmus 

(HGN) test, one of the field sobriety tests she performed at Officer Kennedy's 

request. Hulse contends that because the HGN is a scientific test, evidence 

concerning the results of this test are inadmissible unless the requirements of 

Daubert are met. Hulse maintains that by failing to determine whether, under 

the Daubert standard, the HGN test results were admissible, the District Court 

abused its discretion in admitting the HGN test results. 

¶44 Consequently, Hulse asserts that without the admission of her HGN 

tests results, the remaining evidence was insufficient to support a finding that 

Officer Kennedy had probable cause to arrest her. Hulse, therefore, argues 

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that because her arrest was invalid, the District Court erred in denying her 

petition to reinstate her license. In this regard, Hulse asserts that our decision 

in State v. Clark (1988), 234 Mont. 222, 762 P.2d 853, is confusing as to what 

foundation is required for the admission of HGN test results. Hulse suggests 

that in light of our adoption of Daubert, which Hulse maintains is inconsistent 

with our decision in Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 

657 P.2d 594, overruled on other grounds by Martel v. Montana Power Co. 

(1988), 231 Mont. 96, 752 P.2d 140, we should clarify our decision in Clark 

concerning the admissibility requirements of HGN test results. 

¶45 The State first responds that Hulse waived her objections concerning 

the HGN test results because after the District Court denied her motion in 

limine, Hulse did not renew her objection to Officer Kennedy's testimony 

concerning her HGN test results and did not attempt to refute his testimony 

through cross-examination. Alternatively, the State argues that even if Hulse's 

objections were preserved, the District Court properly denied her motion in 

limine. The State asserts that the HGN test administered to Hulse is a test with 

a basis in science that has already been established. The State, therefore, 

contends that pursuant to Clark, the District Court properly admitted evidence 

of Hulse's HGN test results because the State demonstrated through Officer 

Kennedy's testimony that he was properly trained to administer the HGN test 

and that he in fact administered the test in accordance with such training. 

46 At the outset, we agree with Hulse that she preserved for appeal her 

objections to the admission of the HGN test results by filing a motion in limine 

specifying the grounds of her objection. See Fuhrmann, 278 Mont. at 403, 

925 P.2d at 1166. Because a motion in limine is a pre-trial objection to 

evidence, a party need not continually renew the objection to preserve alleged 

errors for appeal. Barrett v. ASARCo, Inc. (1990), 245 Mont. 196, 205, 799 

P.2d 1078, 1083-84 (citation omitted). Consequently, because Hulse 

preserved this issue for appeal, we will address the merits of her arguments. 

¶47 We begin with Rule 702, M.R.Evid., to determine whether the District 

Court properly admitted evidence concerning Hulse's HGN test results. Rule 

702, M.R.Evid., identical to its federal counterpart, governs the admissibility 

of expert testimony: 

If scientific, technical, or other specialized knowledge will assist 

the trier of fact to understand the evidence or to determine a fact 

in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify thereto in the form 

of an opinion or otherwise. 

¶48 We have stated that "[t]he test for the admissibility of expert testimony 

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is whether the matter is sufficiently beyond common experience that the 

opinion of the expert will assist the trier of fact to understand the evidence or 

to determine a fact in issue." Durbin v. Ross (1996), 276 Mont. 463, 469, 916 

P.2d 758, 762 (quoting Jim's Excavating Service v. HKM Assoc. (1994), 265 

Mont. 494, 509, 878 P.2d 248, 257 (construing Rule 702, M.R.Evid.)). 

Furthermore, we have explained: 

The Commission Comments to Rule 702, M.R.Evid., note that 

the rule sets forth two standards. First, the subject matter must 

be one that requires expert testimony. Expert testimony is 

required in areas not within the range of ordinary training or 

intelligence. Second, the particular witness must be qualified as 

an expert to give an opinion in the particular area of the 

testimony. Thus, Rule 702, M.R.Evid., implicitly requires a 

foundation showing that the expert has special training or 

education and adequate knowledge on which to base an opinion. 

Within the confines of the rule of evidence, a trial court has 

broad discretion in determining the admissibility of the 

evidence. 

Durbin, 276 Mont. at, 477-78, 916 P.2d at 767 (citations omitted). In addition 

to the standards of Rule 702, M.R.Evid., we have imposed additional 

admissibility requirements upon expert testimony pertaining to scientific 

evidence. 

¶49 In Barmeyer, we addressed the issue of whether the district court 

properly allowed defendant's expert witness to testify based on his application 

of "corrosion analysis" that fire arc-marks found on defendant's east-phase 

conductor existed prior to the date the subject grass and forest fire occurred. 

Barmeyer, 202 Mont. at 191-92, 657 P.2d at 597. In response to Barmeyer's 

contention that the district court abused its discretion in admitting the evidence 

because "corrosion analysis" was not generally accepted or recognized by the 

scientific community, we held that with the advent of Rule 702, M.R.Evid., 

which exemplified a trend to liberalize the admission of expert testimony, the 

Frye "general acceptance" standard was "not in conformity with the spirit of 

the new rules of evidence." Barmeyer, 202 Mont. at 192-93, 657 P.2d at 598. 

Agreeing with the philosophy articulated in United States v. Baller (4th Cir. 

1975), 519 F.2d 463, cert. denied, 423 U.S. 1019 (1975), we further held: 

"Deciding whether these conditions have been met is normally 

within the discretion of the trial judge. Absolute certainty of 

result or unanimity of scientific opinion is not required for 

admissibility. 'Every useful new development must have its first 

day in court. And court records are full of the conflicting 

opinions of doctors, engineers, and accountants, to name just a 

few of the legions of expert witnesses.' Unless an exaggerated 

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popular opinion of the accuracy of a particular technique makes 

its use prejudicial or likely to mislead the jury, it is better to 

admit relevant scientific evidence in the same manner as other 

expert testimony and allow its weight to be attacked by cross-examination 

and refutation." 

Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598 (quoting Baller, 519 F.2d at 

466). We found in the case sub judice that a sufficient foundation was laid for 

defendant's expert witness to testify, and, therefore, concluded that the district 

court did not abuse its discretion. Barmeyer, 202 Mont. at 194, 657 P.2d at 

599. 

¶50 Thereafter, in Clark, we described appellant's reliance on the Frye 

general acceptance standard as misplaced and instead relied on Rule 702, 

M.R.Evid., and Barmeyer, to determine whether the district court properly 

allowed Clark's arresting officer to testify as to the results of the HGN test 

performed by Clark prior to his arrest for DUI. Clark, 234 Mont. at 226-28, 

762 P.2d at 856-57. Stating the admission of HGN test results was a matter 

of first impression, we noted that several other states had allowed admission 

of this evidence as one method of indicating impairment, and "adopt[ed] the 

position of these courts in allowing the admission of the tests." Clark, 234 

Mont. at 226, 762 P.2d at 856 (citing Howard v. State (Tex.App. 1987), 744 

S.W.2d 640; Superior Court, 718 P.2d 171; and People v. Vega (1986), 496 

N.E.2d 501). We then pointed out, however, that the "pivotal question" was 

one of proper foundation. Clark, 234 Mont. at 226, 762 P.2d at 856. 

¶51 In response to Clark's argument that his arresting officer, Deputy Irby, 

was not sufficiently qualified to testify as to the scientific reliability of the 

HGN test, we simply stated that "the scientific reliability was nonetheless 

discussed through Clark's own witness, Dr. Curt Kurtz." We thereafter set 

forth a portion of Dr. Kurtz's testimony concerning various causes, including 

alcohol, of nystagmus and its use by police as an indicator of intoxication. 

Clark, 234 Mont. at 227, 762 P.2d at 857. We affirmed the district court's 

admission of the HGN test results, concluding: 

Upon the testimony of Dr. Kurtz, the District Court 

found sufficient basis for the admissibility of the HGN test. 

This Court has long held it is within the jurisdiction of the trial 

judge to admit scientific and expert testimony. State v. 

Sharbono (1977), 175 Mont. 373, 384, 563 P.2d 61, 68. 

As to the results of the test, Deputy Irby testified he was 

certified through the Montana Law Enforcement Academy, 

completing the required number of training hours. Further 

Deputy Irby testified he administered the test in the proper 

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manner. No other foundation need be shown. 

Clark, 234 Mont. at 227-28, 762 P.2d at 857. 

¶52 Subsequent to our decisions in Barmeyer and Clark, the United States 

Supreme Court also rejected the Frye general acceptance standard for 

admissibility of expert testimony concerning novel scientific evidence in 

response to the liberalized requirements of Rule 702, F.R.Evid. Daubert, 509 

U.S. at 588-90, 113 S.Ct. at 2794-95, 125 L.Ed.2d at 479-81. The Supreme 

Court explained that a trial court is required under Rule 702, F.R.Evid., to 

screen this evidence to ensure not only its relevancy, but its reliability. 

Daubert, 509 U.S. at 589, 113 S.Ct. at 2795, 125 L.Ed.2d at 480. To assist 

trial courts, the Supreme Court set forth several non-exclusive factors for 

consideration which we adopted: 

(a) whether the theory or technique can be and has been tested; 

(b) whether the theory or technique has been subjected to peer 

review and publication; (c) the known or potential rate of error 

in using a particular scientific technique and the existence and 

maintenance of standards controlling the technique's operation; 

and (d) whether the theory or technique has been generally 

accepted or rejected in the particular scientific field. 

State v. Moore (1994), 268 Mont. 20, 41, 885 P.2d 457, 470-71 (citing 

Daubert, 509 U.S. at 592-95, 113 S.Ct. at 2796-98, 125 L.Ed.2d at 482-84). 

¶53 We adopted the rationale of Daubert in Moore to determine whether the 

district court properly admitted DNA analysis evidence. We first explained 

that we had previously rejected the Frye general acceptance test because "[i]n 

determining whether to allow expert testimony concerning novel scientific 

evidence, this Court has held that 'it is better to admit relevant scientific 

evidence in the same manner as other expert testimony and allow its weight to 

be attacked by cross-examination and refutation.' " Moore, 268 Mont. at 41, 

885 P.2d at 470 (quoting Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598). 

We concluded that the guidelines set forth in Daubert were consistent with our 

previous holding in Barmeyer concerning the admission of expert testimony 

of novel scientific evidence. Moore, 268 Mont. at 42, 885 P.2d at 471. As 

such, we further concluded that "before a trial court admits scientific expert 

testimony, there must be a preliminary showing that the expert's opinion is 

premised on a reliable methodology." Moore, 268 Mont. at 42, 885 P.2d at 

471. However, we explained that the trial court must be flexible in this 

inquiry. Moore, 268 Mont. at 42, 885 P.2d at 471. 

¶54 Thereafter, we again applied the Daubert standard in State v. Cline 

(1996), 275 Mont. 46, 909 P.2d 1171, to determine the admissibility of expert 

testimony concerning the age of the defendant's fingerprint. Citing Moore, we 

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again pointed out the "continuing vitality of Barmeyer." Cline, 275 Mont. at 

55, 909 P.2d at 1177. Additionally, before reviewing the district court's 

decision to admit this evidence under the Daubert standard, we explained: 

It must also be noted that we do not consider fingerprint 

evidence in general to be novel scientific evidence. However, 

in the present case the issue is whether it is possible to 

determine the age of a fingerprint utilizing magnetic powder. 

We apply the Daubert standard to this case because we consider 

fingerprint aging techniques in this context to be novel scientific 

evidence. Certainly all scientific expert testimony is not subject 

to the Daubert standard and the Daubert test should only be 

used to determine the admissibility of novel scientific evidence. 

Cline, 275 Mont. at 55, 909 P.2d at 1177. 

¶55 We agree with Hulse that in light of this subsequent case law, the 

required foundation for admission of HGN test results, as set forth in Clark, 

is less than clear. As is evident from our case law, while Rule 702, M.R.Evid., 

generally governs the admission of expert testimony, we have imposed an 

additional admissibility requirement upon expert testimony concerning "novel" 

scientific evidence, such as DNA analysis and fingerprint aging techniques. 

See Moore, 268 Mont. at 41, 885 P.2d at 470, and Cline, 275 Mont. at 55, 909 

P.2d at 1177. Hulse suggests that Daubert is not limited to the admissibility 

of "novel" scientific evidence and that Barmeyer and Daubert are inconsistent. 

We disagree. Accordingly, we take this opportunity to clarify our decision in 

Clark concerning the admissibility requirements of HGN test results and to 

clarify the admissibility requirements of scientific evidence in general. 

¶56 First, as is clearly stated in Cline, "all scientific expert testimony is not 

subject to the Daubert standard and the Daubert test should only be used to 

determine the admissibility of novel scientific evidence." Cline, 275 Mont. at 

55, 909 P.2d at 1177. Such a conclusion is supported by the language of 

Daubert itself. The issue in Daubert concerned the admissibility of a novel 

scientific theory that birth defects were caused when pregnant women ingested 

Benedectin, an anti-nausea drug. The Supreme Court noted that although Rule 

702, F.R.Evid., also applied to technical or other specialized knowledge, its 

discussion was limited to the scientific context due to the nature of the 

expertise at issue. Daubert, 509 U.S. at 590 n.8, 113 S.Ct. at 2795, 125 

L.Ed.2d at 481. 

¶57 Additionally, the Supreme Court explained that while Frye focused 

exclusively on novel scientific techniques, the Court did not "read the 

requirements of Rule 702 to apply specially or exclusively to unconventional 

evidence." Daubert, 509 U.S. at 592 n.11, 113 S.Ct. at 2796, 125 L.Ed.2d 

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at 482. The Ninth Circuit Court of Appeals, after citing to this part of the 

Daubert decision, concluded that the requirements of Daubert "apply to all 

proffered expert testimony--not just testimony based on novel scientific 

methods or evidence." Claar v. Burlington Northern Railroad Co. (9th Cir. 

1994), 29 F.3d 499, 501 n.2 (citing Daubert, 113 S.Ct. at 2796 n.11). We 

disagree with this interpretation of Daubert and reassert our holding in Cline 

that the Daubert test should only be used to determine the admissibility of 

novel scientific evidence. Cline, 275 Mont. at 55, 909 P.2d at 1177. 

¶58 Other jurisdictions have similarly held that Daubert is limited to novel 

scientific evidence. Recently, a federal district court concluded that 

"Fed.R.Evid. 702 is still viable and the principles enunciated in Daubert 

should be narrowly limited to controversial and novel scientific evidence." 

Thornton v. Caterpillar, Inc. (D.S.C. 1997), 951 F.Supp. 575, 578 (holding 

that mechanical engineer's testimony concerning design defect and lack of 

adequate warning fell within technical and specialized knowledge, "not within 

the narrowly limited area of unique, untested and novel scientific evidence as 

enunciated in Daubert"). See Waitek v. Dalkon Shield Claimants Trust 

(N.D.Iowa 1996), 934 F.Supp. 1068, 1087-89 n.10 (providing an extensive list 

of federal courts so holding)(concluding in the case sub judice that Daubert 

did not apply to a gynecologist's expert testimony because his opinions "were 

not based on a novel scientific test or a unique, controversial methodology or 

technique; rather, he based his opinions on his experience and training as both 

a gynecologist and as a doctor experienced in the use of and medical problems 

associated with the Dalkon Shield"). See also Williams v. Hedican (Iowa 

1997), 561 N.W.2d 817, 825-27 (concluding, in dicta, that the approach taken 

in Thornton and other federal courts restricting Daubert in favor of a 

conventional Rule 702 analysis was reasonable); Collins v. Commonwealth 

(Ky. 1997), 951 S.W.2d 569, 574-75 (concluding that although the court 

previously adopted the Daubert analysis, Daubert was not triggered because 

the doctor's expert testimony concerned basic female anatomical findings that 

"did not involve any novel scientific techniques or theories"); and State v. 

Hodgson (Minn. 1994), 512 N.W.2d 95, 98 (acknowledging that Minnesota 

follows the Frye test and declining to address the impact of Daubert because 

the issue sub judice involved the expert testimony of a forensic odontologist 

concerning bite mark analysis which was not a novel or emerging type of 

scientific evidence). 

¶59 Furthermore, we clearly stated in Moore, and reiterated in Cline, that 

Barmeyer remains viable in light of our adoption of Daubert. In Moore, we 

stated that Barmeyer set forth the standard for admitting novel scientific 

evidence, and as such it was consistent with the guidelines set forth in 

Daubert. Moore, 268 Mont. at 41-42, 885 P.2d at 470-71. We recognize that 

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Moore, as written, creates a source of confusion concerning the applicability 

of Barmeyer. Certainly, our statement in Moore that Barmeyer applies when 

determining the admissibility of novel scientific evidence is correct. However, 

upon review, we conclude that such a statement interprets Barmeyer too 

restrictively. 

¶60 In Barmeyer, we were presented with the issue of whether the district 

court abused its discretion by admitting expert testimony which the plaintiff 

asserted was not generally accepted by the scientific community. It was within 

this context that we chose to demonstrate the more liberal trend apparent in the 

rules of evidence by rejecting the Frye general acceptance standard. 

Barmeyer, 202 Mont. at 193, 657 P.2d at 598. We never expressly 

characterized the expert testimony at issue as "novel" scientific evidence, but 

rather we addressed the issue as framed by the appellant in the context of the 

Frye general acceptance standard. As such, we rejected Frye, and approached 

the issue under a conventional Rule 702 analysis. Barmeyer, 202 Mont. at 

192-94, 657 P.2d at 598-99. 

¶61 Consequently, Barmeyer should not be read as applying only to novel 

scientific evidence. Rather, our statements in Barmeyer more broadly 

referenced the entire trend to liberalize the admission of expert testimony as 

it applied to scientific evidence in general. Thus, we held, "it is better to admit 

relevant scientific evidence in the same manner as other expert testimony and 

allow its weight to be attacked by cross-examination and refutation." 

Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598. The United States Supreme 

Court set forth this same principle in Daubert. 

¶62 The Court, in Daubert, addressed concerns regarding the consequences 

of abandoning the Frye general acceptance test, by explaining that "[v]igorous 

cross-examination, presentation of contrary evidence, and careful instruction 

on the burden of proof are the traditional and appropriate means of attacking 

shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S.Ct. at 2798, 

125 L.Ed.2d at 484. The Court went on to state that "[t]hese conventional 

devices, rather than wholesale exclusion under an uncompromising 'general 

acceptance' test, are the appropriate safeguards where the basis of scientific 

testimony meets the standards of Rule 702." Daubert, 509 U.S. at 596, 113 

S.Ct. at 2798, 125 L.Ed.2d at 485. 

¶63 Although Daubert was limited to "novel" scientific evidence, this 

rationale is wholly consistent with our decision in Barmeyer concerning the 

admissibility of scientific evidence in general. That is, a trial court, presented 

with scientific evidence, novel or not, is encouraged to liberally construe the 

rules of evidence so as to admit all relevant expert testimony pursuant to 

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Barmeyer. Certainly, if a court is presented with an issue concerning the 

admissibility of novel scientific evidence, as was the case in both Moore and 

Cline, the court must apply the guidelines set forth in Daubert, while adhering 

to the principle set forth in Barmeyer. However, if a court is presented with 

an issue concerning the admissibility of scientific evidence in general, the 

court must employ a conventional analysis under Rule 702, M.R.Evid., while 

again adhering to the principle set forth in Barmeyer. 

¶64 With this in mind, we now turn to the more immediate issue concerning 

the foundation requirements for admission of HGN test results. The State 

point outs that throughout other jurisdictions, three different lines of cases 

concerning the admissibility of HGN test results have evolved. The first line 

of cases, relying in part on the seminal case of Superior Court, 718 P.2d 171, 

conclude that the scientific reliability of the HGN test has been established and 

does not require expert testimony in every case. Another line of cases holds 

that the HGN test is not scientific, and, therefore, does not require expert 

testimony as a foundation for admissibility. Finally, a third line of cases holds 

that before HGN test results are admitted, expert testimony must demonstrate 

general acceptance in the relevant scientific community. See City of Fargo v. 

McLaughlin (N.D. 1994), 512 N.W.2d 700, 705-06 (extensively listing states 

representative of each of these three lines of cases). See also Commonwealth 

v. Sands (Mass. 1997), 675 N.E.2d 370, 372-73 (listing states that have 

admitted HGN test results under Frye, Daubert, or a rule equivalent to Rule 

702, F.R.Evid.). 

¶65 In Montana, we recognize the scientific basis underlying the HGN test 

requiring expert testimony. See Clark, 234 Mont. at 226-28, 762 P.2d at 856-57. 

However, the issue raised today is whether the District Court abused its 

discretion when it allowed Officer Kennedy to testify as to Hulse's HGN test 

results without first determining whether the requirements of Daubert were 

met. Accordingly, to decide whether Daubert should be applied to determine 

the admissibility of HGN test results, we must first determine whether the 

HGN test is novel scientific evidence. 

¶66 Nystagmus is the involuntary jerking of the eyeball resulting from the 

body's attempt to maintain balance and orientation. State v. Murphy (Tenn. 

1997), 953 S.W.2d 200, 202. Nystagmus may be aggravated by central 

nervous system depressants such as alcohol or barbiturates. Superior Court, 

718 P.2d at 173. See Schultz v. State (Md.App. 1995), 664 A.2d 60, 77 (listing 

38 possible causes of nystagmus, other than alcohol). Furthermore, the 

inability of the eyes to maintain visual fixation as they are turned to the side 

is known as horizontal gaze nystagmus. Superior Court, 718 P.2d at 173. 

The HGN test consists of three parts which measure 

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various aspects of these involuntary movements which cause 

nystagmus. In the first part, the "smooth pursuit" test, the 

officer asks the defendant to first look straight ahead, focusing 

on an object, such as a pen, which the officer then moves back 

and forth horizontally. As the driver follows the path of the 

pen, the officer looks to see whether the eyes move smoothly 

from side to side, or whether they exhibit nystagmus, 

characterized by an unsteady, bouncing movement. In the 

second part, the "maximum deviation" test, the officer moves 

the pen horizontally to the limit of the driver's field of vision, 

and watches the eyes for bouncing at the extremes. In the third 

part, the "forty-five degree" test, the officer again moves the 

object from side to side, asking the driver to follow the 

movement with his eyes. The officer watches for the onset of 

the nystagmus prior to a forty-five degree angle between the 

driver's nose and the position of the object. The underlying 

theory is that there is a strong correlation between the degree of 

a person's intoxication and the angle at which the person's eyes 

begin to exhibit evidence of nystagmus. 

Sands, 675 N.E.2d at 372 (citation omitted). 

¶67 As the Kansas Supreme Court effectively explained, the HGN test is a 

scientific test: 

The HGN test is distinguished from other field sobriety tests in 

that science, rather than common knowledge, provides the 

legitimacy for HGN testing. Certain reactions to alcohol are so 

common that judicial notice will be taken of them; however, 

HGN testing does not fall into this category. HGN test results 

are "scientific evidence based on the scientific principle that 

consumption of alcohol causes the type of nystagmus measured 

by the HGN test." HGN evidence could have a disproportionate 

impact on the jury's decision[-]making process because of the 

test's scientific nature and because the jury may not understand 

the nature of the test or the methodology of its procedure. 

State v. Witte (Kan. 1992), 836 P.2d 1110, 1115 (citing in part Superior Court, 

718 P.2d 171; other citations omitted). 

¶68 Law enforcement officials have used the HGN test for several decades. 

See John P. Ludington, Annotation, Horizontal Gaze Nystagmus Test: Use In 

Impaired Driving Prosecution, 60 A.L.R. 4th 1129, 1131 (1988). In this 

regard, as indicated by Officer Kennedy's testimony, the Montana Law 

Enforcement Academy trains officers in HGN testing. Additionally, appellate 

courts throughout the country began addressing the admissibility of HGN test 

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results as early as 1986. See Superior Court, 718 P.2d 171. The Minnesota 

Supreme Court has commented that the HGN test "can hardly be characterized 

as [an] emerging scientific technique[ ]" because nystagmus has long been 

known and the tests have been in common medical use for many years. State 

v. Klawitter (Minn. 1994), 518 N.W.2d 577, 584. Similarly, a Florida 

appellate court declared that HGN testing was neither a novel nor a new 

scientific technique. State v. Meador (Fla.App. 4 Dist. 1996), 674 So.2d 826, 

835. See also State v. O'Key (Or. 1995), 899 P.2d 663, 684 (noting HGN test 

used for three decades). 

¶69 We agree that the HGN test is not novel scientific evidence. Therefore, 

to determine the admissibility of HGN test results, a district court need not 

employ the Daubert standard. However, we continue to recognize that the 

relationship between alcohol consumption and nystagmus, the underlying 

scientific principle of the HGN test, is still beyond the range of ordinary 

training or intelligence. Therefore, a district court must still conduct a 

conventional Rule 702, M.R.Evid., analysis to determine the admissibility of 

HGN test results while adhering to the principle of Barmeyer. 

¶70 Rule 702, M.R.Evid., "implicitly requires a foundation showing that the 

expert has special training or education and adequate knowledge on which to 

base an opinion." Durbin, 276 Mont. at 477-78, 916 P.2d at 767 (citation 

omitted). As our decision in Clark illustrates, before an arresting officer may 

testify as to HGN test results, a proper foundation must show that the officer 

was properly trained to administer the HGN test and that he administered the 

test in accordance with this training. Clark, 234 Mont. at 228, 762 P.2d at 

857. However, Clark also illustrates that a foundation showing that the 

arresting officer is qualified to testify as to the HGN test results does not 

provide a sufficient basis for the officer to testify as to the scientific basis of 

the HGN test. In response to Clark's argument that his arresting officer was 

not sufficiently qualified to testify as to the scientific reliability of the HGN 

test, we stated that "the scientific reliability was nonetheless discussed through 

Clark's own witness, Dr. Curt Kurtz." Clark, 234 Mont. at 227, 762 P.2d at 

857. Consequently, we concluded through the testimony of both Clark's 

arresting officer as well as the testimony of Clark's witness, Dr. Kurtz, there 

was a sufficient foundation for the district court to admit evidence of the HGN 

test results. Clark, 234 Mont. at 227-28, 762 P.2d at 857. 

¶71 In the case at bar, after the District Court summarily denied Hulse's 

motion in limine, Officer Kennedy testified that he had completed the basic 

training course at the Montana Law Enforcement Academy where he received 

40 hours of training in the administration and evaluation of three field sobriety 

tests, including the HGN test. Thereafter, he described his administration and 

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evaluation of the HGN test and testified that Hulse failed the HGN test. No 

testimony was presented either through Officer Kennedy or another expert 

witness describing the underlying scientific basis of the HGN test other than 

Officer Kennedy's explanation that everyone's eye will exhibit nystagmus at 

"maximum deviation," but that "[w]ith the introduction of alcohol into the 

system, that nystagmus becomes more prevalent and it doesn't cease . . .." 

¶72 This testimony shows that Officer Kennedy was trained to administer 

the HGN test and, in fact, administered the HGN test on Hulse in accordance 

with this training, and, therefore, he was qualified to testify as to both his 

administration of the HGN test and his evaluation of Hulse's performance. 

However, nothing in the evidence establishes that Officer Kennedy had special 

training or education nor adequate knowledge qualifying him as an expert to 

explain the correlation between alcohol consumption and nystagmus, the 

underlying scientific basis of the HGN test. Accordingly, we conclude there 

was insufficient foundation for the admission of evidence concerning the HGN 

test and the District Court abused its discretion when it summarily denied 

Hulse's motion in limine and allowed Officer Kennedy to testify as to Hulse's 

HGN test results. 

¶73 However, even without evidence of the HGN test results, sufficient 

evidence remains to support a finding that Officer Kennedy had probable 

cause to arrest Hulse for driving under the influence, and, therefore, that 

Hulse's arrest was valid. Officer Kennedy testified that he observed Hulse 

driving way from the New Atlas Bar after dark with her headlights off and that 

she failed to immediately pull over after he activated his overhead lights and 

siren. Additionally, after Hulse stopped, Officer Kennedy testified that her 

eyes were bloodshot, she smelled of alcohol and she fumbled for her driver's 

license. Furthermore, Officer Kennedy testified that Hulse failed the other two 

field sobriety tests he administered. Consequently, we further conclude that, 

although the District Court abused its discretion when it allowed Officer 

Kennedy to testify about Hulse's HGN test results, this error was harmless. 

Accordingly, we hold that the District Court's finding that Hulse was arrested 

is based on substantial evidence, and, thus, is not clearly erroneous. See 

§ 61-8-403(4)(a)(ii), MCA (1995). 

¶74 In sum, we hold that the District Court's findings that Officer Kennedy 

had reasonable grounds to believe that Hulse was driving under the influence 

of alcohol and that Officer Kennedy had probable cause to arrest Hulse for 

DUI are supported by substantial credible evidence and are not otherwise 

clearly erroneous. See §§ 61-8-403(4)(a)(i) and (ii), MCA (1995). 

Furthermore, Hulse concedes that she refused to submit to a breath test. See 

§ 61-8-403(4)(a)(iii), MCA (1995). Therefore, we further hold that the 

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District Court correctly concluded that Hulse's driver's license was lawfully 

suspended pursuant to § 61-8-402, MCA. Accordingly, we affirm the District 

Court's denial of Hulse's petition to reinstate her driver's license. 

¶75 Affirmed. 

/S/ JAMES C. NELSON 

We Concur: 

/S/ J. A. TURNAGE 

/S/ WILLIAM E. HUNT, SR. 

/S/ JIM REGNIER 

/S/ KARLA M. GRAY 

/S/ W. WILLIAM LEAPHART 

/S/ TERRY N. TRIEWEILER 

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