No. 88-95
I N THE STJPREME COURT O F T H E S T A T E O F MONTANA
S T A T E O F MONTANA,
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P l a i n t i f f a n d ~A-ppcllcmk,
-vs-
RONALD ATlLEN CLARK ,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G a l l a t i n ,
T h e H o n o r a b l e J o s e p h R . G a r y , lTudge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
McKinley Anderson, Rozeman, Montana
For R e s p o n d e n t :
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
M a r k J. M u r p h y , A s s t . A t t y . G e n e r a l , H e l e n a
A. M i c h a e l Salvagni, C o u n t y A t t o r n e y , B o z e m a n , M o n t a n a
J e n n i f e r Sordy, D e p u t y C o u n t y A t t y . , B o z e m a n
S u b m i t t e d on B r i e f s : Aug. 1 1 , 1988
Decided: O c t o b e r 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
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