No. 88-95 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

f-uyewQ~-f 

Plaintiff and ~A-ppcllcmk, 

-vsRONALD ATlLEN CLARK , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph R. Gary, lTudge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

McKinley Anderson, Rozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark J. Murphy, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

Jennifer Sordy, Deputy County Atty., Bozeman 

Submitted on Briefs: Aug. 11, 1988 

Decided: October 7, 1988 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the Eighteenth Judicial District 

Court, Gallatin County. Defendant/appellant, Ronald Allen 

Clark, was found guilty by the District Court, after a jurv 

trial, of Driving Under the Tnfluence of Alcohol, a 

misdemeanor, in violation of R 61-8-401, MCA. From this 

judgment, Clark appeals. 

We affirm. 

Clark raises the following issues on appeal: 

1. Whether he was denied due process by being deprived 

of a reasonable opportunity to gather exculpatory evidence, 

and ; 

2. whether the District Court erred in overruling the 

defendant's objections to the use of the Horizontal Gaze 

Nystagmus test as evidence at trial. 

On July 15, 1986, at approximately 1:30 a.m., Deputy 

Sheriff Roy Irby of the Gallatin County Sheriff's Office 

observed Clark's vehicle traveling north on 7th Avenue. 

Deputy Irby saw Clark's vehicle begin to turn north into the 

southbound lane, nearly hitting the median, but quickly jerk 

into the proper lane of traffic. Deputy Irby followed 

defendant for approximately one and one-quarter miles, 

observing Clark swerving from lane to lane and straddling the 

divider line. One-quarter mile from Clark's home, Deputy 

Irby attempted to stop defendant by flashing his emergency 

lights. Clark did not respond, but instead drove to his 

home, where Clark exited his vehicle. Deputy Irby approached 

Clark and attempted to administer various field sobriety 

tests, including the Horizontal Gaze Nystagmus test (HGN). 

Clark performed the HGN test, the result of which indicated 

alcohol consumption. Clark refused to perform any other 
sobriety tests. Based on Clark's erratic driving, results of 

the HGN test, smell of alcohol on Clark's breath, and his 

uncooperative, unruly behavior, Deputy Irby arrested Clark. 

Deputy Irby brought Clark to the Gallatin County 

Detention Center. During a booking search, Detention Officer 

Lee Kersey discovered five Valium tablets on defendant's 

person. 

During a reading of the State of Montana Implied 

Consent Law Advisory Form, Clark interrupted, asking for a 

physician's care. When Deputy Irby did not respond, Clark 

asked if he was being denied a physician's care, and Deputy 

Irby replied, "at this time." Continuing a reading of the 

implied consent form, Clark stated he wanted "a physician and 

registered nurse at this moment to take a sample of my 

blood." Deputy Irby replied, "just a minute." When Deputy 

Irby finished reading the implied consent form, Clark refused 

the breath test. 

Deputy Irby placed Clark in the custody of Deputy 

Kersey for placement in a holding cell. Deputy Kersey 

testified that Clark was unruly, uncooperative and used 

profane language. Because of his behavior, Deputy Kersey 

made phone calls for Clark. Detention Officers made five 

calls for the defendant, including three to his physician, 

Dr. Kurtz. One such call was made immediately after Clark 

was placed in the holding cell and had requested care for a 

foot injury. During none of these calls did Clark request 

the physician to perform a blood test. Clark was held for a 

period of fourteen hours, at which time he was released on 

bond. 

The first issue is whether Clark was denied due process 

by being deprived of an opportunity to obtain exculpatory 

evidence. Clark argues his two requests to Deputy Irby 

durinq the reading of the implied consent form, and the 
Deputy's reply, placed the officer on notice he was 

requesting an independent blood sample. The State contends 

phone calls were made on Clark's behalf, three to his 

physician, and during none of these calls did he request a 

blood test. These calls, the State argues, gave Clark 

sufficient opportunity to obtain an independent blood test. 

Section 61-8-405(2), MCA, allows for additional tests 

to determine blood alcohol, providing: 

[Tlhe person tested may, at his own 

expense, have a physician or registered 

nurse of his own choosing administer a 

test, in addition to any administered at 

the direction of a peace officer, for the 

purpose of determining the amount of 

alcohol in his blood at the time alleged 

as shown by chemical analysis of his 

blood, breath, or urine. . . 

As this Court has recognized, a criminal accused has a 

constitutional right to attempt to obtain exculpatory 

evidence. State v. Swanson (Mont. 1986), 722 P.2d 1155, 43 

St.Rep. 1329; State v. Peterson (Mont. 1987), 739 P.2d 958, 

44 St.Rep. 1268; State, City of Bozeman v. Heth (Mont. 1988), 

750 P.2d 103, 45 St.Rep. 194. When the crime involves 

intoxication, the accused has a right to obtain a sobriety 

test independent of that offered by the arresting officer. 

Further, this right may not be abridged solely because the 

accused refused to submit to the sobriety test chosen by the 

arresting officer. 

While these rights may seem absolute, they are not 

without limitation. Our decisions do not mandate police 

officers to affirmatively act to obtain exculpatory evidence, 

but instead, to avoid interference with efforts on the part 

of the accused to obtain a sampling of his blood. 

While the police have no duty to assist 

an accused in obtaining independent 

evidence of sobriety, they cannot 
frustrate such an effort through either 

affirmative acts or their rules and 

regulations. 

Swanson, 722 P.2d at 1158. Clearly, the Swanson rule only 

applies when (1) the defendant has timely claimed the right 

to a blood test, and (2) the officer or officers do not 

unreasonably impede the defendant's right to obtain a blood 

test. "If a blood test of the defendant is unavailable 

through no unreasonable acts of an officer or officers, the 

Swanson rule does not apply." Peterson, 739 P.2d at 961. 

No such unreasonable impediments exist in the present 

case. Rather, Clark was given an opportunity to obtain an 

independent sampling. The detention officer testified to 

phone calls made on Clark's behalf, including a call to Dr. 

Kurtz immediately after being placed in the holding cell. 

Clark requested physician attention for a foot problem. At 

no time did Clark request Dr. Kurtz to administer a blood 

test. 

We recognize Clark twice requested a physician's care 

during the reading of the implied consent form. However, 

these requests in no way diminish the effect of the later 

phone call to Clark's doctor. We reemphasize our holding in 

Swanson to the effect that police officers have no 

affirmative duty to assist in the gathering of exculpatory 

evidence, nor may they frustrate such efforts on the part of 

the accused. 

Next, Clark asserts the admission of evidence regarding 

the results of the HGN test was in error as lacking proper 

foundation. We find this argument unpersuasive. 

Horizontal Gaze Nystagmus is the inability of the eyes 

to maintain visual fixation as they are turned to the side. 

In the HGN test, the driver is asked to cover one eye and 

focus the other on an object held by the officer at the 
driver's eye level. As the officer moves the object 

gradually out of the driver's field of vision toward his ear, 

he watches the driver's eyeball to detect involuntary 

jerking. 

The admission of this type of evidence is a matter of 

first impression in this jurisdiction. Several states, 

including Texas, Arizona, and Illinois, have allowed its 

admission as one method of incicating impairment. Howard v. 

State (Tex.App. 1987), 744 S.W.2d 640; State v. Superior 

Court (Ariz. 1986), 718 P.2d 171; People v. Vega (I11.App. 

1986), 496 N.E.2d 501. We adopt the position of these courts 

in allowing the admission of the tests. The pivotal question 

now becomes one of proper foundation. 

At trial, Deputy Irby testified to the sobriety test 

administered to Clark. Upon questioning as to the "cause" of 

the nystagmus reaction, Clark objected to the testimony as 

lacking foundation. Appellant contends such testimony is not 

sufficient to establish a "general acceptance" of the test in 

the scientific community, relying on Frye v. United States 

(D.C.Cir. 1923), 283 F. 1013. This reliance is misplaced. 

Rule 702, M.R.Evid., governs admissibility of expert 

testimony. It provides: 

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. 

The foundation requirements surrounding expert testimony have 

been substantially liberalized, eroding the "general 

acceptance" doctrine enunciated in Frye. As stated in 

Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 193, 657 

P. 2d 594, 598, " [w] e hold tha-t the general acceptance rule is 
not in conformity with the spirit of the new rules of 

evidence." Unless an exaggerated popular opinion of the 

accuracy of the particular technique makes its use 

prejudicial or likely to mislead the jury, the better 

approach is to admit all relevant scientific evidence in the 

same manner as other expert testimony and allow its weight to 

be attacked by cross-examination or refutation. Barmeyer, 657 

P.2d at 598. 

Clark contends Deputy Irby was not sufficiently 

qualified to testify as to the scientific reliability of the 

HGN test. However, the scientific reliability was 

nonetheless discussed through Clark's own witness, Dr. Curt 

Kurtz. 

Q: To the best of your knowledge and 

training, what different things would 

cause that [nystagmus] reaction to an 

individual? 

A: Acute trauma to the head, chronic 

trauma to the head from a previous 

injury, some damage internally to the 

brain from whatever reason; whether it be 

from stroke or infection, various 

chemicals. Under these, I lump 

prescription drugs, tranquilizers, pain 

medications, anticonvulsants and alcohol 

Q: So, what you're saying is, t-hat 

there's a multitude of reason? 

A: There's a multitude. Nystagmus is a 

very non-specific diagnostic test in the 

world of medicine. It's qained some 

credibility with alcohol, bGt if it's 

thrown in any other variable, it's kind 

of questionable whether it's really 

reliable . . . 

[Nystagmus] was instituted as one of the 

relatively simple . . studies for a 
police officer to do on somebody 

suspected of being intoxicated. 

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 

manner. No other foundation need be shown. 

We affirm. 

We concur: 

ief Justice 
Mr. Justice John C. Sheehy, specially concurring: 

I concur in the result of this appeal but not in the 

discussion of the nystagmus test. 

A positive horizontal gaze nystagmus result should be 

approved by us as supplying probable cause for an arrest but 

not as positive proof of DUI, since so many factors can cause 

nystagmus. Here we have a driver who was on daily use of 

Valium by prescription. No distinction is made in the 

opinion that such drugs may themselves cause horizontal gaze 

nystagmus. An unsophisticated jury would take the result of 

the test in this case, without further explanation, as 

absolute scientific proof of DUI. The subject is much 

broader than that. A requirement for admissibility should be 

that the additional "battery" of field tests were also given, 

or that a blood alcohol test confirmed the nystagmus results. 

That is what other states require. Arizona v. Superior Court 

and Rlake (Ariz. 1986), 718 P.2d 171. 

!JAY ,, 

Justice