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STATE OF CONNECTICUT v. JAMES PJURA
(AC 20150)
Foti, Schaller and Dupont, Js.

Argued September 24, 2001—officially released February 12, 2002

James O. Ruane, with whom, on the brief, was Lori
A. McCarthy, for the appellant (defendant).
Ronald G. Weller, assistant state’s attorney, with
whom, on the brief, were Eugene Callahan, state’s
attorney, and Robert S. Katz, former senior assistant
state’s attorney, for the appellee (state).

Opinion

SCHALLER, J. The defendant, James Pjura, appeals
from the judgment of conviction, rendered after a jury
trial, of operating a motor vehicle while under the influence
of intoxicating liquor in violation of General Statutes
§ 14-227a (a) (1). The defendant claims that the
trial court improperly (1) allowed opinion testimony by
a state police trooper that the defendant was under the
influence of alcohol and (2) admitted evidence of the
horizontal gaze nystagmus (HNG) test. We affirm the
judgment of the trial court.
The following facts and procedural history are relevant
to our disposition of the defendant’s appeal.
Shortly after midnight on April 26, 1998, Trooper Aaron
Huntsman of the Connecticut state police drove his
cruiser off to the right side of Interstate 95 to set up a
radar post. Just after establishing his position, Huntsman
observed the defendant’s vehicle traveling in the
highway’s breakdown lane. The vehicle came within
one foot of hitting Huntsman’s cruiser. Huntsman
turned on his police lights and siren, and began to pursue
the defendant. He followed the defendant for onehalf
mile along the highway and then off an exit. Onequarter
mile later, Huntsman managed to force the
defendant to stop by boxing his vehicle in between the
cruiser and a large rock.
As Huntsman approached the vehicle, the defendant
rolled down the window. On the basis of the defendant’s
appearance, manner, and odor, Huntsman suspected
that the defendant was intoxicated. He asked the defendant
to get out of the car to perform standard field
sobriety tests. The first test Huntsman administered
was the HGN. That test assesses a driver’s visual ability
to track an object smoothly. Huntsman next administered
the walk and turn test, which required the defendant
to walk heel to toe in a straight line. Last, Huntsman
administered the one-leg stand test, in which the defendant
had to raise one foot off the ground and count for
thirty seconds.
After further observation and a determination that
the defendant had failed the three field tests, Huntsman
arrested the defendant for operating a vehicle while
under the influence of intoxicating liquor. At trial,
Huntsman testified, as an expert witness on drunken
driving, about his observations and testing of the defendant.
The jury returned a verdict of guilty, and the
defendant appealed. Additional facts will be set forth
as necessary.
I
The defendant first claims that it was improper for
the court to allow a state trooper to offer expert testimony
as to whether the defendant was intoxicated. The
defendant argues that it was improper, first, because
the testimony concerned the ultimate issue of fact in
the case, and second, because the jury was capable of
understanding the subject matter on its own.
A
The defendant argues that it was improper for the
court to allow expert testimony as to whether he was
intoxicated because that was the ultimate issue in the
case. We do not agree.
At the outset, we set forth our standard of review.
It is well established that ‘‘[t]he trial court has wide
discretion in ruling on the admissibility of expert testimony
and, unless that discretion has been abused or
the error is clear and involves a misconception of the
law, its ruling will not be disturbed.’’ (Internal quotation
marks omitted.) State v. McNally, 39 Conn. App. 419,
424, 665 A.2d 137, cert. denied, 235 Conn. 931, 667 A.2d
1269 (1995).
We further note that with regard to expert testimony,
our case law states that ‘‘[a]n expert witness is not
ordinarily permitted to express an opinion on an ultimate
issue of fact which is to be decided by the trier
of fact. . . . Experts can sometimes give an opinion
on an ultimate issue where the trier, in order to make
intelligent findings, needs expert assistance on the precise
question on which it must pass.’’ (Citations omitted;
internal quotation marks omitted.) State v. Lamme, 19
Conn. App. 594, 603, 563 A.2d 1372 (1989), aff’d, 216
Conn. 172, 579 A.2d 484 (1990).
In State v. Lamme, supra, 19 Conn. App. 594, we
applied that principle to expert testimony concerning
a defendant’s sobriety when his intoxication was the
ultimate issue. The defendant in Lamme contended that
the trial court improperly admitted a police officer’s
opinion testimony about intoxication because that was
the ultimate issue in the case.1 Id., 601–602.
The officer in Lamme testified that the defendant
was driving without his headlights on when he was
stopped. Id., 601. The officer also testified that when
he approached the defendant’s car, he had to bang on
the window before the defendant opened it and that
there was a strong odor of alcohol in the car. Id. The
testimony also related the officer’s administration of
field sobriety tests and his interpretation of those tests.
Id., 601, 603. Finally, the officer testified that on the
basis of his observations and the sobriety tests, he
believed that the defendant was intoxicated. Id.,
601–602.
Affirming the decision of the trial court, we stated
that ‘‘[the officer’s] testimony, which included a description
and interpretation of and conclusions regarding
the roadside sobriety tests, was necessary for the jury
intelligently to make a finding as to whether the defendant
violated General Statutes § 14-227a (a) by
‘[operating] a motor vehicle while under the influence
of intoxicating liquor or any drug or both.’ The opinion
portion of [the officer’s] testimony differed from any
other opinion testimony regarding the sobriety of an
individual because it was based in great part on knowledge
and skill beyond the ken of the average juror.’’
Id., 603–604. We concluded that the officer’s testimony
in Lamme met the previously stated requirement of the
trier of fact’s needing expert assistance so as to permit
the testimony’s admission as expert testimony on the
ultimate issue of fact. Id., 604.
We discern no significant distinction between the
situation in Lamme and that in the present case, despite
the defendant’s argument to the contrary, and are therefore
constrained to apply the reasoning of that case.
Huntsman testified about events similar to those that
occurred in Lamme under virtually the same circumstances.
Huntsman testified about the initial incident
that prompted the pursuit and the pursuit itself. He
described his initial interaction with the defendant after
he approached the car, as well as the odor of alcohol
in the car. He recalled that the defendant could not find
his driver’s license when asked for it. He related that
he smelled alcohol on the defendant’s breath and that
his eyes were red. He testified that the defendant slurred
his speech and had difficulty walking to the rear of the
car to take the sobriety tests. Huntsman also described
his administration of the tests and his interpretation of
them. As in Lamme, Huntsman determined, on the basis
of his knowledge, observations and the tests, that the
defendant was intoxicated.
We conclude, as we did in Lamme, that Huntsman’s
expert testimony concerning the defendant’s intoxication
meets the test for the admissibility of expert testimony
on the ultimate issue. The testimony consisted
of expert assistance on the ultimate issue that was
necessary for the trier of fact to make an intelligent
finding. The court did not abuse its discretion in admitting
the testimony.
B
The defendant also argues that it was improper for the
court to allow Huntsman’s testimony that the defendant
was intoxicated because it provided the jury with an
expert opinion on an issue that was within its comprehension
and that it could have decided using its common
knowledge. The defendant argues that the court
improperly permitted the jury to give more weight to
Huntsman’s opinion than to its knowledge on the issue
of the defendant’s sobriety.
As previously noted, our standard of review for a
challenge to the admissibility of expert testimony is to
determine whether the trial court abused its discretion.
See State v. McNally, supra, 39 Conn. App. 424. We
further note the long-standing test for the admissibility
of expert testimony. ‘‘Generally, expert testimony is
admissible if (1) the witness has a special skill or knowledge
directly applicable to a matter in issue, (2) that
skill or knowledge is not common to the average person,
and (3) the testimony would be helpful to the court
or jury in considering the issues.’’ (Internal quotation
marks omitted.) State v. Lamme, supra, 19 Conn.
App. 603.
Before we can properly address the defendant’s
claim, we must review our existing decisions that
address expert testimony on intoxication. In that
review, we consider the circumstances under which the
three-pronged test for admitting expert testimony is
met in the context of police officers testifying about a
defendant’s intoxication.
In State v. Lamme, supra, 19 Conn. App. 594, we
determined the nature of the officer’s testimony in the
context of the principal question about expert testimony
on the ultimate issue. We noted that despite the
trial court’s categorization of the officer’s testimony as
lay opinion, his testimony constituted expert testimony.
Id., 602–603. Our analysis of the testimony in Lamme
is instructive here.
In assessing the officer’s testimony in Lamme, we
first noted his training. The officer had received instruction
that provided him with specialized skill and knowledge
to assess and determine whether a person is
intoxicated. Id., 603–605. We therefore stated that ‘‘[the
officer’s] opinion . . . was based on this training. As
such, his opinion qualified as that of an expert and
should have been accorded that status.’’ Id., 603.
Although we did not provide detailed analysis for
that conclusion, implicit was the idea that because the
officer applied the skill and knowledge derived from
his training to interpret the field sobriety tests,2 his
testimony met the three-pronged test for expert testimony.
That knowledge and skill, which is not common
to the layman, allowed the officer to provide assistance
to the jury in its decision concerning the defendant’s
intoxication.
We must now examine the implications of our decision
in Lamme in light of subsequent case law. In State
v. McNally, supra, 39 Conn. App. 419, the defendant
was an off-duty police officer who was charged with
assault after an altercation outside a bar. He argued
on appeal that the trial court improperly excluded his
expert testimony, as a police officer, that the victim
was intoxicated at the time of the event. Id., 424.
In affirming the trial court’s decision, we stated that
‘‘Lamme is distinguishable from this case because in
Lamme the officer’s opinion was based on field sobriety
tests and the officer’s interpretation of those tests. In
this case, however, the witness did not conduct field
sobriety tests, but rather relied solely on his observation
of the victim and his companions to formulate his opinion.’’
Id. We concluded that ‘‘[t]he expert opinion was
properly excluded on the ground that a determination
of a person’s intoxication based solely on observation
and not on an interpretation of sobriety tests is within
the general knowledge of the jury.’’ (Emphasis in original.)
Id. McNally indicates that testimony based solely
on observations of another’s behavior that might indicate
intoxication is not beyond the jury’s understanding
and therefore does not meet the three-pronged test for
admitting expert testimony.
When Lamme and McNally are read together, we see
a clear distinction. Expert testimony is improper if it
is based solely on general observations by themselves
because in that situation an officer need not invoke
or rely on the skill and knowledge garnered from his
training. Expert testimony is permissible, however, in
the context of an official roadside investigation because
in that situation, an officer is required to administer
tests and to observe the driver. Those related tasks
require the officer to use his specialized skill and knowledge
to determine whether the driver is intoxicated.
The defendant argues further that the trooper’s testimony,
which included both his general observations
and discussion of the field sobriety tests, should not
have been admitted as proper expert testimony. The
defendant asserts that McNally should apply to this
situation because the trooper’s opinion was based, in
part, on his observations and general knowledge of
intoxicated people. We are not persuaded.
First, the trooper’s opinion was based on more than
his general observations. Second, the observations discussed
in McNally arose in a factual context too remote
from those we consider presently. McNally concerned
an off-duty officer, charged with a crime, who observed
a person in a social setting. Here, the trooper observed
the defendant in the context of an authorized roadside
intoxication investigation.
We conclude that the defendant’s claim is governed
by Lamme rather than by McNally. We apply Lamme
here for two reasons. First, the officer’s testimony that
was admitted in that case is similar to the testimony in
dispute in this case. Second, whereas McNally discusses
testimony about observations alone, Lamme addresses
expert testimony that concerns both observations and
the interpretation of field tests, as noted in footnote 2.
As we determined in Lamme, an officer properly may
testify as an expert when his opinion is based on the
specialized skill and knowledge he has derived from
his training. Specifically, we referred to the application
of that specialized knowledge to the interpretation of
field sobriety tests in our disposition of that appeal.
Because we concluded, however, that all of the officer’s
testimony constituted expert testimony, we implicitly
determined that testimony based on the application of
that same skill and knowledge to his observations made
during a roadside investigation is also admissible
expert testimony.
The Lamme decision recognized, without specifically
stating, that in the context of roadside sobriety tests,
there is an interrelationship between what the officer
observes about the defendant’s demeanor and behavior,
and how the officer interprets the defendant’s performance
on the sobriety tests. The roadside investigation
must therefore be viewed in light of all the circumstances
because the officer’s observations generally
provide the basis for, and are an integral part of, his
decision to field test the driver and his interpretation
of the field tests.
When a police officer’s opinion testimony involves
an overall interpretation of observations and field tests
that is based on his skill and knowledge, which is
beyond the jury’s general knowledge because the officer
has special training, that opinion properly may be admitted
as his expert opinion. We conclude accordingly that
consistent with Lamme, a police officer’s observations
concerning a defendant and his actions, along with the
officer’s interpretation of field tests, may be admitted
as part of the officer’s expert opinion testimony when
they are interpreted by the officer as an integral part
of his opinion.
Although the defendant argues that State v. Gracia,
51 Conn. App. 4, 17–19, 719 A.2d 1196 (1998), is inconsistent
with Lamme,we conclude that Gracia is inapplicable
to this appeal and is not inconsistent with Lamme
because the issue in Gracia was whether a field sobriety
test constitutes scientific evidence requiring expert testimony
for admission. That, however, is not the question
we are now addressing in this case. Rather, we are
deciding when expert testimony on intoxication is permissible.
Such testimony is admissible whenever a
police officer’s opinion is based on his skilled and
knowledgeable interpretation of observations and field
tests. The holding in Gracia that the field test results
themselves did not require expert testimony as a condition
to their admission into evidence; id., 18–19; has no
bearing on whether expert interpretation of the tests
is admissible.
Our review of the trial transcript in this case indicates
that Huntsman testified about both his observations of
the defendant and his interpretation of the field sobriety
tests. He testified about the entire incident, from the
time he began to pursue the defendant to the time of
the arrest after the defendant failed the tests.
Huntsman described the defendant’s appearance and
manner when he first approached the car. He related
the smell in the car, the smell of the defendant’s breath
and the condition of his eyes. He described the defendant’s
slurred speech and inability to find his driver’s
license. He testified that when he asked the defendant
to get out of the car and walk to the rear for the tests,
the defendant had difficulty walking and had to hold
onto the car. Huntsman also testified about the tests
in detail as well as the defendant’s performance of them.
It is clear that Huntsman’s opinion as to the defendant’s
intoxication was the product of his interpretation
of those observations and field tests. Specifically, on
direct examination, Huntsman was asked: ‘‘Based upon
your previous training, your experience from what you
observed out there on the roadside, the defendant’s
appearance, his behavior, his performance on the tests
. . . do you have an opinion . . . ?’’ He replied: ‘‘I was
of the opinion at the time by taking all the facts and
circumstances of the case, he was under the influence
. . . .’’
As we previously concluded, that type of opinion
testimony, which is based on all of the circumstances,
properly is admitted as that of an expert because it
results from the officer’s training, specialized skill and
knowledge. It is the result of a continuing interpretative
process that Huntsman engaged in from the time he
first observed the defendant’s vehicle traveling in the
breakdown lane until he arrested the defendant.
Because we have determined that Huntsman applied
the skill and knowledge from his training to both his
observations of the defendant and the field sobriety
test results, his testimony properly was admitted as that
of an expert. His testimony meets the three prongs of
the test reiterated in Lamme for the admission of expert
opinion because he possessed a special skill and knowledge
from his training, it was beyond the jury’s knowledge
and it allowed Huntsman to provide testimony
that was helpful to the jury in deciding the issue at
hand. The court did not abuse its discretion in allowing
Huntsman to testimony as an expert.
II
The defendant’s second claim is that the court
improperly admitted evidence of the HGN test without
first requiring the state to meet the criteria for the
admission of scientific evidence.3 We agree, but conclude
that the error was harmless.
At the outset, we note our standard of review of a
challenge to a trial court’s determination of evidentiary
matters. ‘‘Our standard of review for evidentiary matters
allows the trial court great leeway in deciding the
admissibility of evidence. The trial court has wide discretion
in its rulings on evidence and its rulings will be
reversed only if the court has abused its discretion or
an injustice appears to have been done. . . . The exercise
of such discretion is not to be disturbed unless it
has been abused or the error is clear and involves a
misconception of the law.’’ (Internal quotation marks
omitted.) State v. Russo, 62 Conn. App. 129, 133, 773
A.2d 965 (2001).
Although this court has decided several appeals concerning
HGN testing, Russo, our most recent decision,
is dispositive of the defendant’s claim. In Russo, the
defendant also was convicted of operating a motor vehicle
while under the influence of intoxicating liquor. Id.,
130. At trial, the court allowed the arresting officer to
testify about the field tests he administered, including
the HGN test. Id., 133. On appeal, the defendant challenged
the court’s decision to admit theHGNtest results
without first requiring the state to satisfy the criteria
for the admission of scientific evidence as set out in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). State v.
Russo, supra, 62 Conn. App. 131.
In deciding Russo, we discussed our previous decision
in State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021
(1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706
(1995), which also involved a trial court’s admission of
HGN evidence without first requiring the state to meet
the criteria for the admission of scientific evidence. Our
decision in Merritt stated that ‘‘the HGN test and its
results are based on a scientific principle, namely, that
there is a discernable correlation between the increased
incidence of and the angle of the onset of nystagmus
and alcohol consumption. The mechanics of the HGN
test, we further conclude, . . . are not within the common
knowledge of lay jurors. The reasons underscoring
the nature of the HGN test are unfamiliar to jurors, and
a juror would not be in a position to weigh the testimony
concerning the HGN test and its results without abandoning
common sense and sacrificing independent
judgment to the expert’s assertions, which are based
on understanding the technical aspects of the test. The
scientific and theoretical nature of the HGN test and
its results has the potential to mislead jurors in the
absence of a foundation establishing the general acceptance
of the test. The [Frye v. United States, 293 F.
1013 (D.C. Cir. 1923)] test therefore should be applied
to the admission of testimony derived from the HGN
test and its results. . . .
‘‘We conclude, therefore, that as a precondition to
the admission of testimony concerning HGN testing
and results, the party introducing the testimony must
establish, pursuant to Frye, the general acceptance of
the HGN test.’’ (Citation omitted.) State v. Merritt,
supra, 36 Conn. App. 90–91.
Having reviewed Merritt, our decision in Russo went
on to harmonize our state law with federal law. We
stated that ‘‘[w]hen deciding Merritt, however, we also
recognized that the United States Supreme Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,
509 U.S. 586–89, had adopted as federal law a broader
test for the admission of scientific evidence and had
held that the rigid rule of Frye no longer governed. . . .
Nevertheless, we adhered to the Frye test in Merritt
because our Supreme Court had not yet addressed the
issue of whether Daubert had superseded Frye as a
matter of state law. . . .
‘‘In 1997, however, our Supreme Court squarely
addressed that issue in State v. Porter, [241 Conn. 57,
66–68, 698 A.2d 739 (1997) (en banc), cert. denied, 523
U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998)]. It
explicitly held that ‘the Daubert approach should govern
the admissibility of scientific evidence in Connecticut.’
. . .
‘‘Contrary to the state’s argument that Porter overruled
Merritt, we view it as having modified Merritt.
While Porter affected the criteria for the admission of
scientific evidence reiterated in Merritt, it did not affect
the primary holding of Merritt. Testimony regarding
HGN testing is still the type of scientific evidence that
may mislead a jury in the absence of a proper foundation.
Merely changing the criteria for the admission of
scientific evidence has no effect on the primary holding
of Merritt. Accordingly, we conclude that Porter modified
Merritt so that, prior to admission, testimony
regarding HGN testing . . . must comply with the now
prevailing requirements in Connecticut for the admission
of scientific evidence derived from Daubert.’’ (Citations
omitted; emphasis in original.) State v. Russo,
supra, 62 Conn. App. 135–36.
We then addressed the defendant’s claim in Russo
and stated that ‘‘[t]he [trial] court, over the defendant’s
objection, allowed [the officer] to testify regarding the
results of the defendant’s HGN test without requiring
the state to establish the proper foundation for the
admission of scientific evidence as set forth in Daubert.
Rather than conducting the proper Daubert analysis,
the court simply disregarded the primary holding of
Merritt by concluding that HGN testing was not scientific
evidence. . . . We conclude, therefore, that the
court abused its discretion in admitting [the officer’s]
testimony regarding the results of the defendant’s HGN
test without requiring that the state satisfy the criteria
for the admission of scientific evidence as set forth in
Daubert.’’ Id., 136.
The state again raises the issue that we declined to
decide in Russo. The state invites us to declare that the
HGN test has gained general acceptance in the scientific
community. Although the state argues that the decision
in State v. Carlson, 45 Conn. Sup. 461, 720 A.2d 886
(1998), supports that proposition and validates the test,
we decline to decide on the basis of Carlson whether
the HGN test meets the Daubert standard for scientific
validity. As we noted in Russo, we will not determine
whether the HGN test meets the Daubert criteria when
the trial court has not itself specifically ruled on that
issue. State v. Russo, supra, 62 Conn. App. 136 n.5. We
stated in Russo that the appeal in that case was an
inappropriate vehicle by which to examine the validity
of the HGN test because the trial court had found that
the HGN test was not even a scientific test. Id. Similarly,
when ruling on the defendant’s motion in limine to bar
the HGN test evidence, the court in this case stated
only that Huntsman had ‘‘testified sufficiently to the
court’s satisfaction that he’s qualified to perform that
or render that test . . . .’’ Because the court did not
specifically address whether the HGN test met the scientific
validity standard, we decline the state’s invitation
to rule on whether the HGN test has gained general
acceptance in the scientific community.
Before turning our attention to the defendant’s claim,
we must also first address the state’s attempt to distinguish
this case from Merritt and the trial court’s
response. The state argued at trial that Merritt did not
apply to this case because in Merritt, the state was
attempting to establish a correlation between the HGN
results and a specific level of intoxication. The state
asserted that contrary to that position, it sought in this
case to introduce the HGN evidence only to show that
the defendant had consumed alcohol. A reading of the
transcript reveals that the court was persuaded by that
argument because in its denial of the defendant’s
motion in limine, it stated that Huntsman could testify
as to the administration of the test and his findings, but
that no opinion or evidence as to the level of intoxication
would be allowed.
Although Russo controls our disposition of this
appeal, we review the state’s attempt to distinguish
this case from Merritt because we discussed Merritt
in Russo and because the court’s decision on the defendant’s
motion in limine indicates that the court agreed
with the state’s position. Although the officer’s testimony
about the HGN test in Merritt did specifically
refer to that test in relation to blood alcohol levels, we
believe our decision in that appeal applies more broadly
than to the specific use of HGN evidence to prove a
certain blood alcohol level, and that our decision established
that evidence concerning HGN tests, in any form,
is scientific and should be treated as such.
In Merritt, we stated that ‘‘the majority of jurisdictions
that grant the admission into evidence of the HGN
test and its results allow the test and results only as
evidence of intoxication, rather than conclusive proof
of intoxication. . . . On the basis of our review of the
record, and in accord with the majority of jurisdictions
that have addressed this issue, we conclude that the
HGN test and its results are based on a scientific principle
. . . .’’ (Citation omitted.) State v. Merritt, supra,
36 Conn. App. 90. Because we read Merritt broadly, we
conclude that the present case is not distinguishable
from Merritt. Additionally, because we do not agree
with the state’s narrow reading of Merritt, we conclude
that the specific nature of the HGN testimony is
irrelevant.
We now address the defendant’s claim and apply the
law as stated in Russo. In light of that decision, we
conclude that the evidence before the trial court was
insufficient to establish the scientific validity of the
HGN test. The court improperly admitted Huntsman’s
testimony about the HGN test without first requiring
the state to establish the proper foundation for the
admission of scientific evidence as set forth in Daubert.
That, however, does not end our inquiry into this
issue. We must also determine if the court’s ruling was
harmless. We first note our standard of review in making
that determination. It is well settled that ‘‘[w]here
an evidentiary ruling has been found to be incorrect,
but the improper ruling . . . does not implicate a constitutional
right of the defendant, the burden rests on
the defendant to establish the harmfulness of the
claimed impropriety. . . . In order to establish the
harmfulness of a trial court ruling, the defendant must
show that it is more probable than not that the improper
action affected the result. . . . The question is whether
the trial court’s error was so prejudicial as to deprive
the defendant of a fair trial, or, stated another way, was
the court’s ruling, though erroneous, likely to affect the
result?’’ (Citations omitted; internal quotation marks
omitted.) State v. Russo, supra, 62 Conn. App. 137.
In the present case, we cannot conclude that the
court’s admission of the HGN test affected the outcome
of the defendant’s trial. The jury heard a plethora of
other evidence from which it could have determined
that the defendant was intoxicated.
As previously stated, Huntsman testified about the
near collision when the defendant was driving in the
breakdown lane, as well as the three-quarter mile pursuit.
He also testified about the odor of alcohol both
in the car and on the defendant’s breath. He stated that
the defendant was unable to find his driver’s license
and had bloodshot eyes and slurred speech. He also
described how the defendant had to use the car to keep
his balance as he walked to its rear to take the field tests.
Huntsman also described how the defendant failed the
other two field tests, noting that he had to stop the
walk and turn test because the defendant was so unbalanced
that Huntsman feared that the defendant might
fall and injure himself. He also testified that the defendant
could manage to stay only on one foot in the
one-leg stand test for ten seconds. Huntsman further
testified that at the police barracks, the defendant
refused to submit to a breath test. Additionally, another
trooper at the barracks testified, as Huntsman had, that
the defendant smelled of alcohol, had red and glassy
eyes, and was slurring his speech. On the basis of all
the evidence that the jury heard, we cannot conclude
that absent the HGN test evidence, the jury would have
found differently.
The judgment is affirmed.
In this opinion the other judges concurred.
1 Although two police officers testified in Lamme, we need only discuss
the testimony of the officer who stopped the defendant, administered the
field tests and testified about those events. The court admitted the officer’s
testimony as lay opinion on the intoxication issue. On appeal, however, this
court determined that the officer’s testimony was that of an expert. We
therefore treated his opinion as expert testimony when deciding the case.
2 We note that our discussion of the officer’s testimony in Lamme focused
on his interpretation of the field sobriety tests, despite the fact that the
officer testified about both his interpretation of the tests and his observations
of the defendant. It appears from the decision in Lamme, however, that all
of the officer’s opinion testimony, including his observations of the defendant,
was determined to be that of an expert. That will be discussed in
greater detail in this opinion.
3 As previously stated, the HGN test assesses a driver’s ability to visually
track an object smoothly. Huntsman explained that the test is administered
by asking the driver to follow a moving object, such as a pen or finger, with
his eyes from left to right. The officer holds the object at eye level about
twelve inches from the driver’s eyes and begins moving it. As the object
moves, the officer watches the driver’s eyes and checks to see if the eyes
smoothly pursue the object and if they jerk at certain points in their movement.
The HGN test is used as a field sobriety test because after consuming
alcohol, a person’s eyes tend to jerk involuntarily as they move from side
to side.