Jessica Nicole Nance v. State

Opinion

NO. 06-13-00223-CR

RECEiVED IN FILCO IN ^ ^th^ST'3 IN THE COURT 0F APPEALS ^gSK'wliSf3* £c f:JS) Texarkana, Texas < * SIXTH DISTRICT DEC 29201,f Debra Autrey, Clerk TEXARKANA, TEXAS Tawtfana, Texas FHhrat H'lrcy, Cflji

JESSICA NICOLE NANCE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

MOTION FOR REHEARING IN CAUSE NUMBER CR 1101695

IN THE COUNTY COURT AT LAW NO. 1

OF HUNT COUNTY, TEXAS

MOTION FOR REHEARING

BRIEF

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Comes Now the Appellant and submits this Motion for Rehearing pursuant to the provisions of the Texas Rules of Appellate Procedure in Support of her request for the judgment of conviction to be overturned in Cause CR 1101695.

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel of record certifies that the following persons have^an interest in the outcome of this case. These representations are made so that the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse themselves from participation in the decision of this case.

APPELLATE:

Jessica Nicole Nance

PO. Box 211362

Bedford, Texas 76095

APPELLATE ATTORNEY:

Jason A. Duff

2615 Lee Street

P.O. Box 11 Greenville, Texas 75403

Appellee:

The State of Texas by and through

Joel D. Littlefield

Jeffery Kovach

Hunt County Attorney

4th Floor Hunt County Courthouse

2500 Lee Street

Greenville, Texas 75401

TABLE OF CONTENTS

Identity of the Parties and Counsel

Table of Contents

Index of Authorities

Statement of the Case

Issues Presented

Statement of the Facts

Summary of the Argument

Prayer for Relief

Certificate of compliance of typeface and word count

Certificate of Service

INDEX OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893

(Tex.Crim.App. 2010)

Clayton v. State, 235 S.W.3d 772

(Tex.Crim.App. 2007)

Gilliand v. State, 2011 WL 3862861

(Tex.App.—Texarkana 2011)

Hartsfield v. State, 305 S.W.3d 859

(Tex.App.—Texarkana 2010)

Hooper v. State, 214 S.W.3d 9

(Tex.App.—Texarkana 2007)

Jackson v. Virginia, 433 U.S. 307 (1979)

Johnson v. State, 517 S.W.2d 536

(Tex.Crim.App.1975)

Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012)

Haynes v. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971)

Kentucky v. King, 131 S.Ct. 1849,1856 (2011)

Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347,357(1967))

Gonzales, 369 S.W.3d at 854

Bray v. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451,455 (1948))

Johnson v. United States, 333 U.S. 10,17 (1948)

Jones v. United States, 357 U.S. 493,499 (1958).

McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 568-80 (1991) (internal quotation marks omitted)).

United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beck v. Ohio, 379 U.S. 89,96(1964)

Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013)

(quoting Wayne R. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment § 4.3(b), at 511 (4th ed. 2004))).

State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes omitted)

Robinson, 334 S.W.3d at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007).

Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456).

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990)

STATUTES and RULES

Texas Penal Code 49.04

Rule 44.2(a) of the Texas Rules of Appellate Procedure

See TEX. R. APP. P. 44.2(a)

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001)

Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App. 2011).

End Notes:

1Adams, R., &Victor, M. (1993). Principles of Neurology, 5th edition. McGraw-Hill, Inc.: New York

2 Burns, M.,& Anderson, H.( 1995). AColorado validation study of the standardized field sobriety (SFST) battery. Final Report. Colorado Department of Transportation.

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

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

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

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

7 Elliot. C, & Murray. A. (1998). Repeatability of body sway measurements; day-to-day variation measured by)sway magnetometry. Physiol. Meas.19,159-164.

8 Lee, D..& Lishman, J. (1975). Vision -the most efficient source of proprioceptive information for balance control. Symposium international de posturegraphie, 83-93.

9 Mills, K., & Bisgrove, E. (1983). Body sway and divided attention performance under the influence of alcohol: Dose-response differences between males and females. Alcohol Clincial and Experimental Research, 7(4), 393-397.

10 Nardone, A., Tarantola, J., Giordano, A., &Schieppati, M. (1997). Fatigue effects on body balance. Electroencephalography and clinical Neurophysiology, 105, 309-320.

11.Netter, F. (1993). Compilation of Pathological and Anatomical Printing. CIBA Pharmaceutical Publications, Netter F. The CIBA Collection of Medical Illustrations, Volume 1. CIBA Pharmaceutical Publications.

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

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

14 Stuster, J.,& Burns, M. (1998). Validation of the standardized field sobriety) test battery at BACs below 0.10 percent. Final Report, NHTSA. U.S. Department of Transportation.

15. Tharp, V., Burns, M., & Moskowitz., H. (1981). Development and field test of psychophysical tests for DWI arrest. Final report, NHTSA, U.S. Department of Transportation.

a. Albinism with an absence of pigment cells causes a loss of cells for focusing on objects. b. Retinatitis Pigmentosa where the cells of the Macula, the central part of the eye, degenerate, which makes visual acuity disappear.

c. Diabetes, where small hemorrhages may kill off parts of the cells that helps sees on the retina. d. Multiple Sclerosis, and Rheumatoid Arthritis both a demyelinating disease that can affect nerves, makes them respond erratically, and causes blind spots on the retina.

STATEMENT OF THE CASE

This is an appeal of the judgment and sentence in a criminal case for the County Court at Law Number 1 in Hunt County, Texas. Appellant Plead Guilty to the crime of Driving while Intoxicated Second. (RR Vol. 3 p.8) Appellant filed in the trial court an election to punishment to be made by the trial court on August 12th, 2013. The court ordered a pre-sentence investigation. Appellant was assessed a sentence of imprisonment for Two Hundred Fifty (250) days in the Hunt County Jail, $0.00 fine, and $433.00 in court costs on October 14th, 2013 by the trial court. Motion for New Trial was timely filed on November 4th, 2013 in the trial court and has yet to be heard. The court reporter's record was filed on April 26th, 2013. Appeal was affirmed on November 10th, 2014. Motion for rehearing was filed on November 12th, 2014. Motion was granted on November 25th, 2014.

ISSUES PRESENTED

Point of Error One:

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

Point of Error Two:

Trial court erred in the admissibility, utilization and refutation of the State's evidence concerning field-sobriety test.

Point of error Three:

Trial court erred in allowing Trooper Goodwin to testify that there is a certain level of intoxication that can be determined by the HGN .

Statement of the facts

Appellant pled guilty to Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial court admonished Appellant of the charge and the range of punishment. (RR Vol. 3 p.8-15). The trial court then admonished the Appellant that the State was seeking to enhance his punishment range from a Class B misdemeanor to a Class A misdemeanor. (RR Vol. 3 p. 8-15). The court informed Appellant that she had the right to have a presentence investigation and ordered it done. (CR Vol. 1 p. 195). During the sentencing hearing the State moved to admit Exhibits 1-6 which included the roadside videos, intoxilizer videos and her test results and records obtained from criminal records from Dallas County. Without objection from the Defense the trial court admitted them. (RR Vol. 3 p. 25). Both sides presented arguments and the Court came back with a sentence of two hundred and fifty days in jail. (RR Vol. 5p. 113-125).

SUMMARY OF THE ARGUMENT

Jessica Nicole Nance appeals from her conviction, on an open plea of guilty, of driving while Intoxicated (DWI) second offense. Following a hearing on punishment, the trial court sentenced Nance to 250 days in jail. Nance's appointed appellant counsel filed an Anders brief in the matter detailing the procedural history of the case, summarizing and analyzing the trial evidence, and stating that he found no meritorious issues to raise on appeal. Nance availed herself of the opportunity to file a pro se response. Nance contends that she received ineffective assistance of counsel with respect to each of the following issues: (1) Defendant's Fourth Amendment rights were violated when the officers failed to obtain a search warrant. (2) Trial court erred in the admissibility, utilization and refutation of the State's evidence concerning field-sobriety test. (3)Trial court erred in allowing Trooper Goodwin to testify that there is a certain level of intoxication that can be determined by the HGN .

Point of Error One:

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

Requirement of a Search Warrant

The Fourth Amendment to the United States Constitution provides, "The right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue" unless certain requirements are met. U.S. CONST. AMEND. IV; see also TEX. CONST, art. I, § 9. This right "proscribes all unreasonable searches and seizures," Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012), and its "basic purpose ... is to safeguard the privacy and security of individuals against arbitrary invasion by government officials," Haynes v. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971).

"Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, [the Supreme Court of the United States] has inferred that a warrant must generally be secured." Kentuckyv. King, 131 S.Ct. 1849,1856 (2011). Thus, "it is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and welldelineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); Gonzales, 369 S.W.3d at 854. "'Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.'" Brayv. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451, 455 (1948)). The warrant requirement has been described as one of "the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law." Johnson v. United States, 333 U.S. 10,17 (1948).

Judicial issuance of a warrant is important because it "provides... a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime." Hudson v. State, 588 S.W.2d 348,351 (Tex. Crim. App. 1979) (quoting United States v. Chadwick, 433 U.S. 1,9 (1977), abrogated on other grounds byCalifornia v. Acevedo, 500 U.S. 565, 568-80 (1991) (internal quotation marks omitted)). A neutral magistrate's prior review "prevents] hindsight from coloringthe evaluation of the reasonableness of a search or seizure." United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beckv. Ohio, 379 U.S. 89,96 (1964) ("An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment."); Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013) ('"[0]ne important function of the warrant requirement is to facilitate review of probable cause and avoid justification for a search ... by facts or evidence turned up in the course of [its] execution.'" (quoting Wayne R. LaFave, 2 Search and Seizure: ATreatise on the Fourth Amendment § 4.3(b), at 511 (4th ed. 2004))).

"The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn " Jones v. United States, 357 U.S. 493,499 (1958). Those exceptions include "voluntary consent to search, search under exigent circumstances, and search incident to arrest." McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). It is the State's burden to show that a warrantless search falls within one of these exceptions. Id.

In the case of the Defendant Nance a search warrant was never obtained .Although Deputy Fernandez arrived at the scene at 2:57 a.m and the Defendant wasn't until arrested until 4:30 am at no time was a search warrant ever requested even though the Defendant's vehicle was searched and two bottles of empty wine were found (RR. Vol. 4) the car had not been impounded at the time of the search nor had a wrecker been called to pick up the vehicle at the time of the search. In fact the car was searched more than once by more than one officer. Although one of the officers testified that he was checking for "inventory" it was impossible to check for inventory when the Defendant hadn't even been placed under arrest for any crime nor had she been asked to perform any FST at the time of the search. The officer (Trooper Goodwin) testified to having searched the car only for "inventory " purposes however he had not come in contact with the suspect at the time of the search and seizure to know if the car would indeed have to be impounded.

Burden To Prove an Exception to the Warrant Requirement

"A defendant who alleges a Fourth Amendment violation has the burden of producing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the seizure occurred without a warrant." State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes omitted); see Robinson, 334 S.W.3d at 780 (Cochran, J., concurring); Ford v.State, 158 S.W.3d 488,492 (Tex. Crim. App. 2005). The burden then shifts to the State to prove that the seizure was nonetheless reasonable. Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007). In this case a warrant was needed to search the car because the Defendant did not give consent for the car to be searched.

Exigent Circumstances

'"We cannot... excuse the absence of a search warrant without a showing by those who seek

exemption from the constitutional mandate that the exigencies of the situation made that course imperative.'" Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456). Exigent circumstances typically fall within one or more of three categories: (1) "providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance"; (2) "protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous"; and (3) "preventing the destruction of evidence or contraband." Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

Nowhere in the record does it state the officers believed the Defendant was armed and

dangerous, needed medical attention, or they felt that she was going to destroy evidence. The State

failed to establish exigent circumstances. The State has the burden to show "exigent

circumstances.-.made obtaining a warrant impracticable"); Crane v. State, 786 S.W. 2d 338, 346 (Tex.

Crim. App. 1990) ("In order for a warrantless arrest or search to be justified, the State must show ...the

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

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

circumstances because it contained no mention of a warrant and because there was no evidence

regarding what the officer knew regarding the time needed to obtain a warrant. Douds, 434 S.W.3d at

855. A finding of exigent circumstances "must be based on an officer's reasonable belief that the delay

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

added))). No attempt was made to obtain a warrant in this case. Even though there were about half a

dozen officers on the scene in this case and this accident happened almost a hour and 15 minutes later

there is no indication that officers not on the scene were unavailable to help obtain a warrant.

Harm Analysis

Because the State failed to meet its burden, a harm analysis must be performed. The admission

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

pursuant to Rule 44.2(a) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(a);

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001). "If the appellate record in a criminal case

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

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

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

Rule 44.2(a) should adhere strictly to the question of whether the error committed in a particular case

contributed to the verdict obtained in that case. Snowden v. State, 353 S.W.3d 815,821 (Tex. Crim. App.

2011).

The accident occurred at 2:57 a.m. the Defendant Nance wasn't taken into police custody until

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

Point of Error Two:

Trial court erred in the admissibility, utilization and refutation of the State's evidence concerning all of the field-sobriety test that were administered

Texas Trooper Bubba Goodwin was sworn on August 13th, 2013. (RR. Vol 4 pg.6). At approximately 2:57 am on July 25th 2011 Trooper Bubba Goodwin was called to assist in a accident. Based on Trooper Goodwin's testimony nance was believed to be in intoxicated because he could smell alcohol on her, she thinks she is headed "home" but she is actually 50 miles away, and the results from the HGN task, the one leg stand, the finger dexterity and the alphabet test. (RR Vol. 4 p. 16-17) During examination Trooper Goodwin testified that there is a certain level of intoxication that can be determined by the horizontal gaze nystagmus.( RR. Vol 4 pg. 10 lines 24-25) Trial counsel objected to his testimony stating that he isn't allowed to interpret the results. (RR. Vol. 4 pg. 12 lines 11-19). The trial court overruled the objection (RR.Vol. 4 pg. 12 line 20-24). Trooper Goodwin testified he didn't perform the walk and turn test because the Defendant informed him she had "bad knees". (RR. Vol. 4 pg. 13 1-4). Although Defendant informed Trooper Goodwin of her bad knees and Rheumatoid Arthritis she was still asked to perform the one leg stand test which is a test that requires a individual to put all of their body weight onto one knee. (RR Vol. 4 pg. 14 lines 5-7) Trooper Goodwin testified to performing two non-standardized tests. The alphabet and the finger dexterity. He said that Nance performed poorly on both. RR. Vol. 4 pgs. 14-16) Trooper Goodwin admitted to giving the Defendant instructions to the one leg stand that suggest that it was "ok for the Defendant to put her foot down and pick it back up." What he failed to do was to inform the Defendant that it indeed was NOT ok to put her foot down because putting her foot down was one of the clues that he was looking for to see if she was indeed intoxicated. (RR Vol. 4 pg 21 lines 21-25 ; page 22 lines 1-9 and RR Vol. 4 pg 21. Lines 20-25)Trooper Goodwin also testified that the Defendant informed him BEFORE taking the tests that she had Rhuematoid Arthritis (RR Vol 4 pg 23 lines 1-4) He testified that he failed to inquiry as to what parts of her body she suffered the Arthritis from. (RR Vol. 4 pg. 23 lines 6-25)) and he also testified that her ability to stand on one leg or knee or count on her fingers could all be affected by Arthritis . (RR Vol. 4 pg. 24). Trooper Goodwin testified that even though the finger dexterity and the alphabet tests weren't standardized tests they were still an indicator of intoxication because she performed poorly.{ RR. Vol. 4 pg. 16 lines 4-9)Defendant was then placed under arrest. (RR. Vol. 4 pg. 16 lines 11-13).

While a State's witness can testify as to what was observed while conducting field sobriety tests and can testify that such tests helped inform the witness decision to arrest a defendant even assuming the Court allows the State to adduce testimony regarding the administration of the HGN test and the one leg stand in Nance's case Trooper Goodwin shouldn't have been allowed to testify that such tests for example correctly identify intoxicated individuals. See. Tex.R. Evid. 705 (b). In the Defendants case the arresting officer Trooper Goodwin testified that the Defendant was over the limit of 0.8. (RR. Vol. 4 page 19).

In Emerson v. State, 880 S.W. 3d 759, 768-69 (Tex. Crim. App. 1994), the Court ruled that an officer's testimony showing a correlation between a person's performance on the horizontal gaze nystagmus test and a specific blood alcohol concentration was impermissible. A later court applied the Emerson court's analysis to the one leg stand test and it came to the same conclusion as the court in Emerson. McCrae v. State, 152 S.W. 3d 739, 746 9Tex. App. 2004). Use of impermissible testimony is a constitutional error because it violates a defendant's due process and fair trial rights under the Sixth Amendment as incorporated against the States through the Fourteenth Amendment. The appropriate test then is whether the appellant was harmed by the court's error, even though there was an objection and in this case the Defendant was harmed which in this case was ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim the appellant must show by a preponderance of the evidence both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Williams v. State, 301 S.W. 3d 675, 687 (Tex. Crim. App. 2009). Appellant must demonstrate under the first prong that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687- 88; Ex parte Lane, 303 S.W. 3d 702, 707 (Tex. Crim. App. 2009). There is a strong presumption that counsel acted professionally and that counsel had his or her strategic reasons behind decisions that may appear to be errors. Strickland at 689.

To meet the second prong, appellant has to show the existence of a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Ex parte Lane, 303 S.W. 3d at 707. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Jackson v. State, 877 S.W. 2d 768, 771 (Tex. Crim. App. 1994); Simms v. State, 848 S.W. 2d 754, 756 (Tex. App.—Houston {1st Dist.} 1993, pet. ref'd).

In 1975, NTHSA funded a research project run by the Southern California Research Institute. At that time, Dr. Marceline Burns was a founder and researcher at that organization. The project was to determine if there were, either individually or in combination, any roadside tests that could aid an officer in determining whether a person was under the influence of alcohol. (See Statement Under Oath of Dr. Burns attached hereto).

Pursuant to that contract, research was performed evaluating many of the commonly used roadside tests and narrowing the list to approximately 15 tests that were used Nationwide and seems to have some usefulness. From that group of 15 tests only 6 were eventually believed to be valid and feasible at roadside. (Burns Stmt at 10-15)

These six tests were then studied in controlled laboratory experiments to determine their accuracy. (Burns Stmt at 22-24). In the end, a combination of three tests were determined to be the best indication of impairment. There three tests: horizontal gaze, nystagmus, one legged stand, and walk the line, were adopted by NTHSA as the ONLY tests to determine sobriety at roadside. (Burns Stmt at 7-8).

Additionally, as Dr. Burns has pointed out on many occasions, variance from the proscribed manner of administering, observing, and evaluating an individual's performance of the three standardized tests deprives the tests of reliability and accuracy. "Therefore the scoring and the observations don't relate to any of the research data or any of the accumulated data over the years. " (Burns Stmt at page 30, line 4-7).

This position, that only tests given in the "standardized" manner, have any validity is echoed in virtually every police manual regarding field sobriety tests.

The Ohio Supreme Court in State v. Homan (April 26, 2000) 89 Ohio St. 3d 421, 732 N.E. 2d 952, held that any variation in the use of the NHTSA Standardized Field Sobriety Tests makes the results completely unreliable as relates to probable cause, a lower standard than required for conviction. The court found "it is well established that in field sobriety testing even minor deviations from the Standardized procedures can severely bias the results." This is dues in part, the court reasoned, to "the small margins of error that characterize field sobriety tests making strict compliance critical" and "when field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable."

Based on the foregoing rationale, the Ohio Supreme Court ruled " in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures. " In the case of the Defendant here, Trooper Goodwin did not use the three standardized tests. The test the officer did used (alphabet and finger dexterity) have not been the subject of any review or study. Any tests that the officer did use from the three battery approved by NHTSA were done inconsistently with the prescribed matter. As stated above, such variance from the standard effectively creates a new test. Based on the foregoing, those test do not meet the Kelly test for admissibility. Furthermore, it is clear that the standard enunciated for admissibility in Kelly cannot be met by the prosecution.

The standard for admissibility of evidence based on new scientific techniques first propounded in Kelly and left unchanged by Daubert is applicable to field sobriety tests. Pursuant to the Texas Evidence Code and the decisions of the United States Supreme Court in Kumbo Tire, the Kelly standard is applicable to testimony based on training and experience as well as more traditional "scientific" knowledge. Under that standard, field sobriety tests are inadmissible evidence until shown to be in conformance with Kelly which in this case the prosecution has failed to do. The tests used in this case do not and cannot be shown to meet this standard of reliability and should be precluded.

Based on the analysis of virtually every state court decision, and hearing or reading from the foremost experts in the field of DUI/DWI investigation for both prosecution and defense, the United States District Court for the district of Maryland " the results of the SFSTs either individually or collectively, are not admissible for the purpose of proving specific blood alcohol content (BAC) of a driver charged with DWI/DUI." U.S. v Horn (D. Md. 2002) 185 F. Supp. 530. Therefore, evidence of performance on the SFSTs is not relevant.

Dr. Marceline Burns, considered by most courts to be the foremost proponent of SFSTs (see e.g., Horn, supra), has stated under oath "What you're asking is are these tests of driving? They are not...The officer is not charged with making a decision about driving skills at roadside. He couldn't. There's no way you can judge somebody in five minutes at roadside that you never saw before to make a decision about their driving skills." (Statement of Dr. Marcelline Burns Under Oath, April 17th, 1998).

Since these tests, according to their foremost proponent, cannot indicate driving ability, let alone impairment, they are not relevant to the charge of Driving While Intoxicated Second.

Based on the foregoing, any testimony with regards to SFTS's is irrelevant and should be precluded.

In the closing of Trooper Goodwin's testimony he was asked by the Court to clarify one of the reasons why Defendant was arrested for DWI.

Court: I want to clarify something in my own mind relating to your testimony about the reasons for the DWI arrest. One of them you said was that she well, let me just ask you the question. I think that I heard her say, when you said, where are you heading, I think that you—she replied home; is that correct?

A. That's correct.

Q. All right. And then when you asked where she lived she said Dallas?

A. Dallas.

Q. Ifthe accident occurred in Royse City but she was stopped in Hunt County, it's true to say that she was driving east bound on 1-30, which is away from Dallas is that correct?

A. That is correct.

Q. Okay. And that's one of the reasons you used in your decision to arrest her?

A. That's correct.

FURTHER CROSS EXAMINATION:

BY Mr. Brooks:

Q. Based on that, Trooper Goodwin are you familiar with Mount Pleasant, Texas?

A. Yes sir.

Q. In what direction from the accident—or excuse me your stop would Mount Pleasant be in?

A. East

Q. On past Greenville?

A. That's correct.

Q. Did you ever inquire of Ms. Nance where she was actually from?

A. No, sir.

Q. Okay. So if she's from Mount Pleasant, that would be the direction of going home, would it not?

A. I asked her where she was going. She said home, and her home was in Dallas.

Q. Actually, what you asked her, was where do you live.

A. Where do you live.

Q. And she said Dallas.

A. Okay.

Q. Sometimes folks refer to a different place as home as opposed to where they live, don't they?

A. Yes, sir.

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

In John V. State, 517 S.W. 2d 536 (Tex. Crim. App. 1975) which has long stood for the proposition that being intoxicated at the scene of a traffic accident which the defendant was alleged to be the driver was not evidence that the defendant was driving while intoxicated.

Texas law requires the State to establish, beyond a reasonable doubt, a temporal link between Defendant's intoxication and her driving. Here, the admitted evidence did not establish Defendant had a blood alcohol content of 0.08 or above at the time she was behind the wheel and the circumstantial evidence did not establish Defendant lacked the normal use of mental or physical faculties. As a result, no rational fact-finder could have found the essential elements of driving while intoxicated beyond a reasonable doubt. Defendants conviction should therefore be reversed.

According to the unpublished opinion in Gilliand v. State:

In evaluating legal sufficiency of the evidence supporting (a) DWI conviction, we review all the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the essential elements of DWI beyond a reasonable doubt. Brooks v. State, 323 S.W. 3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 91979); Hartsfield v. State, 305 S.W. 3d 859, 863 (Tex. App.-Texarkana 2010, pet. refd) (citing Clayton v. State, 235 S.W. 3d 772, 778 (Tex. Crim. App. 2007). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W. 3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the trial judge "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable interferences from basic facts to ultimate facts." Hooper v. State, 214 S.W. 3d 9,13 (Tex.Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).

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

Point of Error Three

Field sobriety tests were standardized in 1977 by the National Highway Traffic Safety Administration (NHTSA) and since then have been taught to law enforcement officers on a national basis to determine who is "Driving While Intoxicated." The primary NHTSA research was done with 238 allegedly normal volunteers, with three Standard Field Sobriety Tests. The studies suggested that the combined results of 3 failed tests (SFSTs) the Horizontal Gaze Nystagmus (HGN),the One-Legged Stand, and the Walk and Turn correlated 80% of the time with the subjects' Blood Alcohol Concentration (BAC) of 0.1 mg % or higher. In 1995, these tests were correlated to a BAC of 0.087 mg % (2) and in 1997 to a BAC of 0.05% (3), and the results were shown to be almost the same. Interestingly, the research never provided a direct correlation with an individual's failure on the 3 SFSTs and a loss of normal use of either mental or physical faculties.

They have provided what law enforcement was seeking when NHTSA tried not to develop a more sensitive test that would provide more reliable evidence of intoxication 13." The National Highway Traffic Safety Administration have viewed the SFSTs as a quick, simple, non-evasive way to determine Blood Alcohol Concentration (BAC} at a level that they defined as "intoxication" for everyone. This brief will review one of these tests, the Horizontal Gaze Nystagmus (HGN) Test, and will demonstrate problems in using it as a determinant of whether someone is accurately and reliably evaluated as Driving While Intoxicated.

Blood Alcohol Concentration (BAC) in fact is not a measure of intoxication, but only of the level of alcohol in the blood at that moment in time. Despite NHTSNs desires and research pronouncements, there are problems with these SFSTs. Its initial support for these studies, however, was guarded because the 1977 initial report included the following disclaimer on the front page. "Prepared for the Department of Transportation, National Highway Traffic Safety Administration ,under Contract No. DOT: HS-5-01242. This document is disseminated under the sponsorship of the Department of Transportation in the interest of information exchange. The United States Government assumes no liability for the contents or use thereof, (n)r It is of important note that other NHTSA funded studies by the same primary researcher, Ms. Marcelline Burns (a behavioral psychologist), in collaboration with colleagues at the Southern California Research Institute (ANACAPA Science, Inc.), a center she directs, included the same disclaimer.} 3,5,6,13,14)

Overview

The only true way to directly measure Blood Alcohol Concentration (BAC) is to draw blood and to measure the alcohol level in a proper laboratory. Field Sobriety Tests are indirect, and at best, circumstantial, measures of the BAC.

The validity of indirect measures of BAC becomes even more suspicious with the realization that it is dependent on the external environment and the individual's current physical and emotional state. An individual's ability to perform these tests involves the functioning of their total body, including their nervous, skeletal and muscular systems. This cannot be assessed without knowledge of the individual's past medical history, including physical traumas, and are probably too complex to be done by non-medically trained personnel such as law enforcement officers.

The original studies documented that between 68% and 80% of the people who failed lto 3 Field Sobriety Tests had a BAC of at least 0.1 mg % (as tested by breath (13), another indirect measure). By adding in those individuals who were not judged intoxicated (ones for whom BAC was below 0.1 mg%), the SFST was depicted to be 90% accurate for all people tested. Interestingly, this 90% figure also included over 20% who tested positive and failed the Field Sobriety Tests, and were therefore assumed to have a 0.1 mg% BAC but in fact had a BAC lower than that level. Accordingly, using the SFST in the real world of DWI arrests, these individuals would have been wrongly declared intoxicated and in turn would have lost their license, been arrested and possibly convicted. It must be emphasized here that the study's statistics show that the percentage of individuals who test positive but have a BAC lower 0.1mg% got as high as 35% if just one of the SFTs was used.

The Southern California Research Institute's 90% accuracy claim for everyone is an ostensively impressive sounding percentage. This claim, however, becomes invalid when one realizes that the BAC was determined by breath testers, another in- direct measure with questionable accuracy .This 90% accuracy number becomes further suspect when the BAC was dropped to 0.08 mg % (State of Florida Test) and again to 0.05 mg % (Colorado Test,}(3),because logically and realistically, there would be some change in accuracy, or a higher percentage of people who would test positive as the BAC level is lowered, but the percentage stayed the same.

In most states, when an individual fails the SFSTs and then refuses a breath test, they are assumed by the government to have a BAC greater than the acceptable level of 0.08 mg%. This means that 20% (1/5) to 35% (1/3) of all people who failed the SFSTs and then refused a breath test would lose their license, although their true BAC would have been lower than the legal limit of 0.08 mg % if it was done by a direct test, such as blood. There is increasing political and financial pressure by the National Highway Traffic Safety Administration (NHTSA) for the states to drop the level at which legal intoxication is determined to 0.08 mg % and to continue to use the SFSTs to measure this level. The Southern California Research Institute (ANACAPA Science, Inc.) has done studies of the SFSTs at the 0.08 mg% level in Florida in 1995 and subsequently at the 0.05 mg% level in Colorado in 1997 (2) Their findings, which again combined individuals both above and below the sought after BAC level of 0.08 mg% and 0.05 mg%, promoted over 90% accurate information. These percentages again are misleading because they grouped individuals both above and below the sought after BAC level in providing the results. They are suspect because in a normal statistical distribution of subjects, the percentage of people who test positive should increase significantly as the level of BAC is lowered from 0.1 mg% to 0.08 mg%, and then to 0.05 mg %, but in fact it remains almost the same. Even the Horizontal Gaze Nystagmus Test which is touted by NHTSA as the most accurate test of all three SFSTs and is not subjected to voluntary control, reflects little change in the percentage of individuals testing positive as the BAC levels drops from 0.1 mg% to 0.08 mg% to 0.05 mg %. .

The Horizontal Gaze Nystagmus Test has been viewed as the premier Standardized Field Sobriety Test by the Southern California Research Institute because it has a claimed higher accuracy rate than the other two tests and appears to be totally out of the individual's conscious control.

To understand what HGN is, it is necessary to review how the test is done and what neuroanatomically and physiologically is involved in a positive test result. Understanding this will help explain why there are many other factors besides alcohol and drugs that can precipitate or exaggerate HGN.

Adams' "Textbook of Neurology" defines nystagmus as the "involuntary rhythmic movements of the eyes". The NHTSA Driving While Intoxicated Detection and Standardized Field Sobriety Test Instructor and Student Manuals define Nystagmus for law enforcement as "the involuntary jerking of the eyes, occurring as the eyes gaze toward the sides.(s,6)." These Manuals go on to say" nystagmus is a natural, normal phenomenon, they merely exaggerate or magnify it." Interestingly, the Southern California Research Institute first called this "Alcoholic Gaze Nystagmus, most likely because there are so many other causes for it besides just alcohol.

In a physiological sense, HGN occurs when the eye follows an object. The slow, natural tracking of the object (smooth pursuit) stops, the eye quickly darts back toward the midline, then returns to slowly track the object a little further to the side, then quickly darts back to the midline, and this process continually repeats itself. This is a normal phenomenon, which should occur in all people as the NHTSA Driving While Intoxicated manuals point out. There are two phases in this process. A slow, tracking phase, or "smooth pursuit", in which the eye follows the object away from the center, and a fast, compensatory phase, when the eye flicks back toward the midline, the position it had originally started from. The neuroanatomy of this process is very complex and involves the Labyrinth System of the Inner Ear, the Optic Nerve, the Extra-Ocular Muscles of the eye, the Cerebellum of the brain, the Pons of the Brain Stem, as well as the neutral pathways that connect these structures.

The Retina of the eye must see the object without distortion, and have that message register in the optic region of the brain. Of the Extra-Oculomotor Muscles, the Lateral and Medial Rectus of each eye must be the only muscles involved in just lateral movement, tracking, and actual Horizontal Gaze Nystagmus. If other muscles of the eye are used or stimulated, then there is no checking of horizontal gaze. As the eye moves to follow the object, the nerves and muscles send information via neural pathways to the Cerebellum about the amount of movement, with the Cerebellum then sending back information to the eye muscles about how much more or less to move, and this feedback process continues again and again.

The Labyrinth System of the Inner Ear simultaneously transmits information to the Cerebellum and the Pons about the body's position, trying to correlate that with the information it is receiving from the Oculomotor muscles about the amount of eye movement, and this process continues again and again. This is very fast and very complicated, and it involves multiple feedback loops and transitions (1,11,12). Anything that affects these neuroanatomical structures or neural pathways will influence how Nystagmus will be manifested.

The NHTSA HGN Test Itself

The NHTSA Horizontal Gaze Nystagmus Test must be done without glasses or contact lenses, and eye problems can invalidate the results. A light or pointer is held 12 inches away from the (face, at the mid point of the eye and slowly moved toward one side and then the other. The individual receives a total of up to six points based on poor performance in three different aspects of the test, although only four are required to fail the test, which would determine that their BAC was over O.lmg %,0.08 mg %, or 0.05 mg %, depending on the study:

IThe eye tracks laterally toward the side, and ifthe slow tracking is not smooth, the individual receives one point for each eye that the tracking is not smooth.

2 The object is then held to the far lateral side of each eye, and ifthere is jerky movement in that corner ,the individual is again scored one point for each eye that there is significant movement.

3 Finally, the angle from directly in front that nystagmus begins is determined, and if it occurs before a 45° angle, they again receive one point for each eye that it occurs in.

Scientific Basis for the

Blood Alcohol Level Influence on HGN

Several valid scientific research findings have provided the basis for understanding that alcohol can influence Horizontal Gaze Nystagmus (HGN). These include the Effects of Alcohol on the Inner Ear and the Effects of Alcohol on Muscles.

1. Alcohol Effect on the Inner Ear

Real science has shown that the alcohol level in the blood will be different than the alcohol level in the Labyrinth System ofthe Inner .Ear during the Ascending and Descending phase ofalcohol use because alcohol is slow to pass through to the blood brain barrier .This means that during the Ascending

Phase of alcohol use, when alcohol is being ingested, the blood will have a higher level of alcohol than the Inner Ear's Labyrinth System has. Then, during the Descending Period of alcohol use, when alcohol is being metabolized more rapidly than it is being ingested, the alcohol level in the Inner Ear's Labyrinth System will be higher than that in the blood. This disparity between the alcohol level in the blood (BAC) and that in the Inner Ear causes the eyes to move in a non-smooth, less rhythmic manner, undershoot and then overshoot the target they are following which gives a "jerky • non-smooth appearance called Horil.ontal Gaze Nystagmus. To the non-medical observer, the eyes have trouble following, or have problems compensating, and appear to act like "a marble rolled on sandpaper" as the NHTSA Student Manual states,(5,6).

2. Alcohol's Effect on Muscles

Alcohol is a Central Nervous System Depressant, and as such can have a slowing effect on nerve transmission and muscle movements. The effect of alcohol is thought to slow the "smooth pursuit" or tracking movement of the eye, which wil exacerbate normal nystagmus and make it look jerky. This depressant effect is though to increase as one's alcohol level increases, and it is another scientific finding which helps to understand why Horizontal Gaze occurs.

These two scientific facts explain why alcohol in the blood can cause an exaggeration in normal nystagmus, which is the basis for the HGN of the SFSTs. These legitimate scientific findings were then extended by assumptions that the Southern California Research Institute made to validate their own test results. Real science and research, however, has also proven that many other factors can cause or exaggerate Horizontal Gaze Nystagmus in a non-intoxicated individual.. In fact, these other causes of HGN are very important because they speak to the validity of the law enforcement determination of Intoxication , and subsequent revocation of a Driver's License and/or a DWI conviction. They may also be too complex, involving so many neuroanatomical structures and be so influenced by past and present medical issues, that non-medical personnel, such as law enforcement officers, simply cannot accurately perform it.

Other Causes of HGN

Medication

Alcohol, its effects, and how to score an individual's performance on the HGN test is the primaryfocus of the NHTSA DWI Law Enforcement Training Manuals. These manuals also acknowledged that Barbiturates and PCP could cause Nystagmus (4,5) Many prescription medications can also cause or exacerbate Nystagmus, but are not usually queried about by the examining officer, including pheny-toin (seizure medication), lithium (mood stabilizer), antihis-tamines (allergy medication), and barbiturates (seizure medication). Ofcritical import here is to understand that although these drugs exaggerate, enhance and cause Nystagmus, they also help the "abnormal" person to function normally. If the individual were stopped and tested by a law enforcement officer for HGN, as in the case of the Defendant they would test positive, although they are in fact on medication to help them function normally.

Retina, Optic Nerve Damage

The Retina and Optic nerve may be damaged sufficiently to cause or to impair the HGN test but not be damaged enough to impair an individual's ability to see to drive. Diseases can impair the Macula. This is the central part of the retina, which is the part of the eye that has the most sensitive Optic Nerve cells and which helps an individual to accurately focus on an object. Any disease such as Albinism, Arthritis ,Retinatitis Pigmentosah, Diabetes, and Multiple Sclerosis" can affect this part of one or both Retina and in turn cause or exacerbate HGN. People who are born with eye problems such as Strabismus (cross-eyed) or who have had eye or lid surgery may normally have Nystagmus, which would be unrelated to alcohol use(i2). Exaggerated Nystagmus may also manifest in individuals such as miners who have worked in the dark for long periods of time.

The Extra-Ocular Muscles

There are six Extra-Ocular muscles for each eye that move the eyeball itself. These are the Medial Rectus and the Lateral Rectus muscles, the ones used in Horizontal Gaze Nystagmus, as well as the Superior Oblique, the Superior Rectus, the Inferior Oblique and the inferior Roctus muscles. The NHTSA HGN test is supposed to be designed only to test the function of just two cranial nerves (III and IV) as well as just the two solitary, opposing Occulomotor muscles they innervate, the Lateral and Medial Rectus muscles of each eye(4,n). Those two Occulomotor muscles of each eye are "yoke" muscles in that they work together while opposing each other .In this manner, one contracts while the other relaxes, enabling the eye to move from side to side. In turn, the two eyes must also work together in order for them to focus on and to follow an object for the test. The disparity between each eye's performances is viewed as an indication of intoxication in the DWI Instructor and Student Manual. In fact, any problem with these nerves or muscles can cause an exaggeration in Nystagmus, or a disparity between one eye's movement and the other .The cause of this could be surgery in childhood to correct eye problems, damage to the muscles of one eye, or even a "lazy eye, "which will cause Nystagmus, although the individual had not been drinking.

Alcohol, which depresses the Central Nervous System, may affect the smooth coordination of these two opposing muscles and cause a breakdown of the balance between them, which many exacerbate nystagmus. The NHTSA HGN examination is done above eye level, which is what the NHTSA Manuals and Videos recommend. This height brings into play the four other Occulomotor muscles (the Superior Rectus, the Superior Oblique, the Inferior Rectus and the Inferior Olique muscles) and other cranial nerves (the Trochlear and branches of the Occulomotor).

Position the stimulus approximately 12-15 inches from the suspect's nose and slightly above the eye level. Check the suspect's eyes for the ability to track together. Move the stimulus smoothly across the suspect's entire field of vision. Check to see if the eyes track the stimulus together or one lags behind the other, ifthe eyes don't track together it could indicate a possible medical disorder, injury, or blindness.

Testing in this manner complicates and invalidates the HGN test because not just the Lateral Rectus and Medical Rectus Occulomotor muscles are being tested. The test as it is taught and as the NHTSA Manual instructs is then invalid.

Inner Ear

An intact Inner Ear Labyrinth System is essential for differentiating between normal and abnormal Nystagmus. Deafness, tinnitus (ringing in the ear). Meniere's disease and injuries to one or both ears from trauma or infection will affect the inner ear and may damage the Labyrinth System. These changes in turn will register as HGN on SFSTs testing, (i,i2).Law enforcement officers at the side of the road are not trained to and do not take a detailed medical history about childhood illness, past traumas and other medical problems when the individual is beingjudged for intoxication. The individual himself may not even be aware of these medical syndromes or has compensated for them, such that they present no problem for the person except when he is tested for HGN.

Neuroanatomical Structures and Neural Pathways

The Pons area of the Brain Stem connects many aspects of the Autonomic Nervous System and the Voluntary Nervous System. It receives and sends impulses from Labyrinth System of the inner ear, the Extra-Ocular Muscles, and the Ocular Cortex where what the eye actually sees register.

The Cerebellum connects to the Brainstem, and is also part of the feedback system which receives input about nerve and muscle activity, and then modulates or counterbalances each muscle's contraction with its relaxation, the contraction of the others, etc. There are millions of nerves that connect and feed- back messages from the eyes, the Occulomotor muscles, the Cerebellum, the Inner Ear's Labyrinth System, and the Brain Stem. Interference with any of the neural pathways between these diverse parts of the head can cause HGN. Many factors, including vascular problems, minor strokes, pressure from tumors, generalized demyelinating diseases such as Multiple Sclerosis, infections, and injuries from trauma to the head or neck affect these neural pathways and in turn their ability to send and receive data. Small bleeds (such as those caused by hyper tension), small tumors, and even injuries (such as those caused by minor head trauma, from boxing, automobile or sporting accidents) can cause damage which will result in nystagmus, but would be unrelated to alcohol use. Which in the Defendants case would have been the cause since she was just hit from behind by a 18 wheeler and she had not been checked out by EMT prior to taking the HGN test. Cerebral palsy ,congenital cerebella problems, demyelinating diseases such as Multiple Sclerosis, Rheumatoid Arthritis and Parkinson's Disease, and even late onset inherited disease can also damage the cerebellum and cause a disruption in the feedback process, which will exaggerate normal nystagmus, and may be seen when tested for HGN.

Anything that interrupts or damages any part of this system, be it from infection (childhood or adulthood), including meningitis, encephalitis, an inner ear infection, or even high temperature seizures (1,4), can cause sufficient damage for an individual to have abnormal nystagmus, or HGN, although in most other aspects of an individual's functioning they are of little consequence.

Summary

The Standardized Field Sobriety Tests, which include the test of Horizontal Gaze Nystagmus (HGN), are used bylaw enforcement as if they were direct measures of blood alcohol content, initially at the 0.1 mg % level, now at the 0.08 mg % level and soon at the 0.05 mg % level. The assumption is that an individual who fails the test is intoxicated by definition, and the refusal to take a breath test is justification for mandatory loss of a driver's license in most states. In reality, Horizontal Gaze Nystagmus is an indirect and circumstantial estimate of not only .but also the presence of alcohol, Blood Alcohol Content, as are alt other Field Sobriety Tests. Nystagmus itself is a normal process. It can be exaggerated by the influence of alcohol and drugs. Nystagmus, however, can also be influenced by many other factors, including medication to help an individual function such as in the case of the Defendant who was prescribed Lithium , their past and present medical condition in the Defendant's case her Rhuematoid Arthritis, and the environment they are tested in. These other factors might cause a person to be judged intoxicated when they are not, and they are often ignored in SFST testing as in the case of the Defendant Nance. The process by which nystagmus occurs is a very complex feedback loop that involves neuroanatomical structures in the Brain. Inner Ear, Brain Stem, Rectus of the eye and Extra-Ocular muscles, as well as the millions of neural pathways that connect these structures. Factors that have in the past affected the individual's eyes, ears, and nervous system may exacerbate Nystagmus, and can cause an individual to fail the HGN part of the SFSTs. Moreover, the level at which a pointer is held to perform the test brings other muscles into play and invalidates the results.

According to NHTSA statistics, at least 20 to 30% of all individuals who fail the HGN test and refuse a breath test will not only unfairly lose their license, but also possibly suffer a wrongful DWI conviction, because their BAC would have been below the 0.08mg% level used to determine intoxication. They will therefore be arrested for skewed HGN probable cause, but are not intoxicated and should not have been arrested on the basis of the HGN test. They will have "false positives" and will be assumed guilty, rather than assumed innocent" The built in inaccuracy of these test may well be the reason the U.S. Department of Transportation continues to put the disclaimer on each new study they sponsor, stating: "The United States Government assumes no liability for the contents or use thereof." (15)

In summary the State did a "very sloppy" job of investigating the accident. They failed to get a search warrant and to they failed to fully investigate what really happened that night. What we have here is a case of a young woman who was hit from behind by a 18 wheeler who was free to go. He (the driver of the 18 wheeler) was never asked to perform any sort of field sobriety test unlike the Defendant even though he was the cause of the accident. The State used two nonstandardized tests that based on research have no probative value determining if someone is intoxicated. The State used a HGN test that based on research if certain medical disorders are in to play such as Arthritis or a person who has been prescribed Lithium as in the case of the Defendant those test are invalid as well. And finally you have a officer who asked the Defendant where she was headed and she told him "home" he assumed the Defendant was intoxicated because he was thinking she was lost when in all actuality she was trying to tell him she was headed home to Mount PI easant where she is from. Which in her case would be "home' to her. Therefore because the State has the burden of evidence to prove BEYOND A REASONABLE DOUBT that the Defendant was intoxicated where in this case it is clearly obvious they have failed to do. The Defendant prays that this Court REVERSE the judgment and REMAND the case back to the trial court and render a judgment of acquittal. In the alternative, Appellant prays that the cause be remanded for a new trial or for further proceedings in accordance with the law of this Court's ruling.

PRAYER FOR RELIEF

For the reasons set forth above, Appellant prays that this Court REVERSE the judgment and REMAND the case back to the trial court and render a judgment of acquittal. In the alternative, Appellant prays that the cause be remanded for a new trial or for further proceedings in accordance with the law and this Court's ruling.

Respectfully submitted:

Jessica Nance

P.O. Box 211362

Bedford, Texas 76095

214-650-4387

CERTIFICATE OF COMPLIANCE

I certify that this document was prepared with Microsoft Word and that according to that program's word count function, the sections covered by Tex. R.

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

JESSICA NANCE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing has been forwarded to the following persons listed Jason A. Duff 2615 Lee Street PO Box 11 Greenville, Texas 75043, State of Texas Jeffery Kovach 2500 Lee Street, Greenville, Texas 75401, and the Sixth Court of Appeals 100 North State Line Ave. Ste. 20 Texarkana, Texas 75501.

JESSICA NANCE (-< j-S ^L / L

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing has been forwarded to the following persons listed Jason A. Duff2615 LeeStreet PO Box 11 Greenville, Texas 75043, State of Texas Jeffery Kovach 2500 LeeStreet, Greenville, Texas 75401, and the Sixth Court of Appeals 100 North State Line Ave. Ste. 20 Texarkana, Texas 75501.

4ca-zn'cu MaftCu vM^I^

JESSICA NANCE

/•>

EXHIBIT ONE

TM

EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 DECLARATION 2 3 4

5 I hereby declare that I am the deponent in the 6 within matter; that I have read the foregoing 7 examination under oath and know the contents 8 thereof. And I declare that the same is true of my 9 knowledge, except as to the matters which are 10 therein stated upon my information or belief, and H as to those matters, I believe it to be true 12 I declare under the penalties of perjury of 13 the State of California that the foregoing is true 14 and correct. 15 Executed on the day of 16 19 ,at 17 -

18

19 20 21 W1TNLSS 22 23 24

25

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1

2 I, Lori Raye, A Certified Shorthand Reporter 3 for the State of California, do hereby certify: 4 That prior to being examined, MARCELLINE 5 BURNS, Ph.D., the witness named in the foregoing 6 examination under oath was by me duly sworn to 7 testify the truth, thewhole truth and nothing but 8 the truth pursuant to Section No. 2093 of the Code 9 of Civil Procedure; 10 That said examination under oath was taken 11 before me, at the time and place therein set forth, 12 and was taken down by me stenographically and -

13 thereafter transcribed; 14 I further certify that I am neither counsel 15 for, nor related to, any party to said action, nor 16 in anywise interested in the outcome thereof. 17 In witness whereof, I have hereunto 18 subscribed my name this 5th day of May 1998. 19 20 21 22 L6WJUVS 23 CSRNo. 7052 24

25

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LORI RAYE COURT REPORTERS (818.508.1418) Page 61 - Page 62

TM

EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 with misguided pride that they've made the test a 1 inches? 2 little more difficult, or changed it. I don't like 2 A. No. You have to give them some 3 to discourage hard-working police officers, but I 3 instruction. I mean, there's a difference between 4 have to say to them, "That's very interesting, and 4 six inches and straight out. But if it's five and 5 it may be that your test is better, but we don't 5 a half inches or seven inches, it's not going to 6 know that So please don't do it." 6 make a difference in the test I suppose there's 7 MR. BAIR: Maybe they're getting down to .06, 7 some point like a fulcrum at which it's easier to 8 which may be the next test. 8 balance, perhaps. I don't know. But the 9 THE WITNESS: If the American Medical 9 instructions are six inches, approximately six 10 Association and MADD has its way, we're going to 10 inches off the ground, 11 .05. n Q. In all these tests, again, common 12 BY MR. KAPSACK: 12 sense plays an important role. For instance, you 13 Q. The third test I think is where we 13 know, for any of these tests, I would guess, 14 were. 14 standing on one leg came to my mind immediately if 15 A. Third is the One-Leg Stand, and the 15 it's being done in a placewherethe highway goes 16 suspect is told to standwiththeirfeet together, 16 in a mountain gap, and you've got 25-mile-an-hour 17 to lift one leg, either one, approximately six 17 winds. It's probably not the best place to give 18 inches off the ground, point the toe, watchtheir 18 the test, and that's going to have someeffect 19 toe, their foot at all times, and to count. 19 A. It might be difficult, but, you know, 20 Now, this is a place where NHTSA has 20 the field tests we did in Colorado, one of the 21 made a change. Our instructions were —I don't 21 things we were interested in was, are these tests 22 think it's a significant change, but just so you're 22 valid in Colorado mountains where it snows and 23 aware of it, originally we said you count 1,001, 23 blows and does all kinds of unpleasant things? And 24 1,002,1,003, until you reach 1,030. 24 we didn't find any significant effect of the 25 We wanted to be sure they held that 25 weather, except that officers tended to make a Page 57 Page 59 1 stance for 30 seconds because it turns out that 1 mistake by letting people go who should have been 2 people at .10 very often can hold it to 20 or 25 2 arrested if they didn't have on adequate clothing. 3 seconds. It's only when the attention begins to 3 In other words, if it was cold and they didn't have 4 waiver that the balance gets messed up, So it's 4 a jacket, theytended to make an error by releasing 5 critical to hold it for 30 seconds, and that was 5 them. 6 the point of the counting. 6 Q. By assuming some of the mistakes were 7 . NHTSA has just within the last couple 7 as a result of being cold? 8 years changedthat instructionso that they're now 8 A. Either that, or they just felt sorry 9 told "Count 1,001,1,002, 1,003, until I tell you 9 for them. 10 to stop." And the officer now times it for 30 10 MR. BAIR: Didn't complete the tests? 11 seconds and then records the count. In other 11 THE WITNESS: Just didn't keep them - that's 12 words, if a person was at 25, they write down 25. 12 the only thingI can assume. If officers make an 13 And that's what they do. 13 error, it's far more likely to be a release than an 14 Q. You had been giving us points before. 14 arrest. They don't arrest very manyincorrectly, 15 Do you recall the points on this one? 15 but they release enough incorrectly that, as road 16 A. I believe it's two. 16 users, we should worry. 17 Q. Again,gettingback to one of the 17 MR. KAPSACK: I'd like to take a five-minute 18 broader themes, the person is supposed to hold 18 break. 19 their foot six inches off the ground, but the six 19 (BRIEF RECESS) 20 inches isn't the key here? 20 MR. KAPSACK: That's all we have. Thank you. 21 A. No. 21

22 Q. It's holding it off the ground? 22

23 A. Correct. 23 24 Q, The officer should not be out there 24

25 measuringwhetherit's five and a half or eight 25 Page 58 Page 60 LORI RAYE COURT REPORTERS (818.508.1418) Page 57 - Page 60

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fcXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS l approximately 12 inches in front of their face, 1 instructions. And there are eight —I believe 2 elevated slightly so they'll open their eyes. 2 there are eight errors that can be scored. Two 3 Because the point is, you have to see their eyes. 3 errors are reason to arrest 4 Then he or she moves the stimulus — how shall I 4 BY MR. KAPSACK: 5 describe it? — back and forth in front of the 5 Q. Let me interrupt you for a second 6 eyes laterally and observes that individual's 6 here. We talked about this a little bit earlier. 7 eyes. 7 You said they should take little 8 First of all, the determination is 8 steps, and we talked about how the officer has to 9 made whether the eyes can track the stimulus 9 use common sense. 10 smoothly, or whether they jerk as they move. I'm 10 A. He demonstrates that, by the way. 11 tempted to use my hands because I teach it. So 11 Q. Right. 12 lack of smooth pursuit is one sign. That's worth 12 I have seen this where the officer has 13 one point in each eye. 13 prescribed that it must be a specific number of 14 The second sign is the distinct 14 steps. 15 jerking at maximum deviation. In other words, when 15 A. To turn around? 16 the eyes have been moved as far as they can go to 16 Q, To turn around. I have seen and heard 17 the side, and then held there for about four 17 them say "You must pivot on your foot using three 18 seconds, is there a distinct jerking, not just a 18 steps to turn around." 19 little tremor? Because that can occur because it's 19 A. I'm not aware of the source of that. 20 an uncomfortable position. There needs to be a 20 Q. This is part of the problem, little 21 distinct jerking that persists. 21 bits that have been added and taken away that have 22 And then finally, the person who is 22 occurred in some places. 23 administering the test looks for the angle of gaze 23 A. Let me say that I don't think that 24 when there's the first onset of jerking. In other 24 would do any harm unless he scored an error for 25 words, has the individual deviated his eyes 40 25 failure to take three steps. If he wants them to Page 53 Page 55 1 degrees, 45 degrees or 30 degrees? Because it's 1 take three steps, I don't think that's a big deal. 2 the relationship between that and the BAC. 2 But he has no basis to score against them for 3 MR. BAIR: Each one of those is worth one 3 taking four because that's not part of the 4 point in each eye? 4 standardized testing. 5 THE WITNESS: That's correct. So a maximum of 5 Q. That gets back to your testimony 6 six, and four points is a basis for taking them 6 before, because that's what gives it its 7 in. 7 reliability. 8 The Walk-and-Turn test is just what it 8 A. That's what gives it its predictive 9 sounds like, a test of the individual's ability to 9 power. 10 walk and execute a turn and return. They're told 10 Q. Predictive power? 11 to put the left foot on the line, put the right 11 A. "Reliability" means something 12 foot in front of it and stand in that position 12 different to me. 13 while the officer gives the rest of the 13 Q. I like that, "predictivepower." 14 instructions. 14 A. Yeah. What you're trying to do is 15 He then instructs and demonstrates by 15 predict accurately whether this person is going to 16 showing what heel-to-toe is. He tells the 16 have a breath test that shows above or below .10. 17 individuals, "I want you to take nine heel-to-toe 17 Q. If I, as an officer, score something 18 steps along the line. Watch your feet at all 18 as an error that's not considered an error under 19 times, leaveyour arms at your side, and count your 19 the standardized rules, then my power of 20 steps aloud. When you get to the ninth step, turn 20 predictability is not very good. 21 around, take small steps turning around and come 21 MR. BAIR: Or has been dirninished. 22 back along the line in the sameway with nine 22 BY MR. KAPSACK: 23 heel-to-toe steps. Do you understand?" 23 Q. Could be getting worse, because we've 24 And if the individual says "I don't 24 never studied that aspect. 25 understand," then the officer repeats the 25 A. Could be. Sometimes officers tell me Page 54 Page 56 LORI RAYE COURT REPORTERS (818.508.1418) Page 53 - Page 56

EXAM UNDER OATH Multi-Page1 FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 recreate all the same variables in the laboratory 1 raining, you know. Those thingsjust don't 2 that you have at roadside, which is one of the 2 matter.

3 reasons I wanted to do a field study. 3 Walk-and-Turn, preferably, is done on 4 Q. And conversely, in the laboratory, you 4 a flat, dry surface. If it cannot be, then I think 5 don't have some of the distractions that you would 5 the officer is going to have to take that into 6 have on the roadside? 6 account But to my knowledge, there are no 7 A. That's true. 7 particular guidelinesthat - there's been no 8 Q. For instance, I would assume you kept 8 research that says that if the pavement slopes X 9 the laboratory fairly well lit It's not the kind 9 number of degrees, that cannot been done. But I 10 of nighttime stop that officers get involvedin. 10 don't think it would be possible to do it 11 A. True. Another important variable is n Again, I think it's a matter of common 12 that those officers had just been trained, with one 12 sense, but it has not been a matter of research. 13 exception, and that was in the secondstudy. None 13 MR. BAIR: Footwear would make a significant 14 of them had heard of Horizontal Gaze Nystagmus 14 impact on a study with regard to the 15 before. It takes a period of learning to believe 15 Walk-and-Tum. 16 what you really see for officerswho are trained in 16 THE wrTNESS: It can, and I think it depends 17 nystagmus. So my concern, my interest was in 17 on the individual. "Depending on where it is and 18 finding what officers who had used the test battery 18 the circumstances, officers very often give 19 for a period of time were capable. 19 somebodywho is wearing high heels or boots with 20 (DISCUSSION HELD OFF THE RECORD) 20 heels the option of taking them off. 21 BY MR. KAPSACK: 21 BY MR. KAPSACK: 22 Q. There also must be a period of 22 Q. I would assume that Walk-and-Turn 23 institutional learning for which most police 23 would be hard in a six-inch spike heel. 24 departments are notoriously slow. When you talk 24 a. Unless you do every day, then it's a 25 about confidence, the officers had to have 25 piece of cake.

Page 49 Page 51 1 confidence when they came to you individually. I'm 1 MR BAIR: Tennis shoes may be difficult, 2 sure the first few times you told the officers, 2 then. 3 "You're going to take a stimulus and move it in 3 BY MR. KAPSACK: 4 front of their eyes," they must have looked at you 4 Q. Have you ever been asked by NHTSA, or 5 like you were crazy. 5 has there ever been a proposal that was requested 6 A. I'm sure they did. 6 regarding any of the other tests that have come and 7 Q. But then when they went back to their 7 gone, such as, I believe the Hand-Pat was 8 departments and they said, ,TNo, it really works," 8 mentioned, or a written alphabet or anything like 9 I'm sure the rest of the officers looked at them 9 that that you know of that you've been involved in? 10 like they were crazy, too. 10 A. I've never been asked to do any 11 A. There is a period of accepting. 11 research with those. It's possible —I don't 12 Police officers are notorious for not accepting 12 remember the report from the more recent study for 13 newfangled ideas, so to speak. 13 the .08. They did use some other tests, but I 14 Q. When these tests are done on the side 14 don't remember now what they were. 15 of the road, is there a set standard or a given 15 MR. BAIR: I think I just would like to get 16 margin that the officer should use regarding 16 down specifically what those three tests are. If 17 mistakes or failures in the field sobriety tests 17 you could, tell us the walk out nine steps, walk 18 that he should attribute to the environment, if you 18 back, exactly what those tests are so that we have 19 understand me? 19 a record of exactly what those tests are that your 20 A. I understand you. I'm trying to think 20 group came to the conclusion were accurate. 21 if there's any such thing. 21 THE WITNESS: Well, HGN, which is a jerking 22 The only thing that's required for 22 movement of the eyeballs, is administered by having 23 nystagmus is that the suspect be able to see the 23 the individual stand with their arms at their side, 24 stimulus and the officer be able to see his eyes. 24 holding his or her head still, and the officer or 25 It doesn't matter if the wind is blowing or it's 25 person administering the test holds the stimulus Page 50 Page 52 LORI RAYE COURT REPORTERS (818.508.1418) Page 49 - Page 52

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Q- And that's 18 years ago. 1 confidence in his diagnosis.

What's the next? 2 So instead of saying, "Horizontal Gaze a. Well, the next step is NHTSA's step, 3 Nystagmus is a pretty good test and predictor; and I'm not really the person to tell you exactly 4 we'll just go with that," you really need more what and how and why they did it, except as an 5 evidence, in my view. And I think that's a pretty outsider, to say that training began sometime 6 widely held view. thereafter of law enforcement nationwide. 7 So there were three, but as I said Q. I take it throughout this you're still 8 before, we found adding to that of those six that 9 involved in it to a certain degree. 9 we identified didn't really improve predictions, so 10 When is the next time you get a 10 we didn't have four or five. 11 contract or do a study, or anything along those 11 Q. And you don't have only one for the 12 lines? 12 reasons you just stated, becauseyou want a second 13 A. Well, the next time I actually worked 13 opinion, you want a little backup there? 14 for NHTSA that involved these tests was with a 14 a. Well, there's always a risk if you 15 study of the Drug Recognition Program, of which 15 rely on a single marker. Now, sometimes an officer 16 these tests are a component, and that was in 1985. 16 may have to. The circumstances may be such that 17 That's the only work I directly did for NHTSA, 17 the only thing he can do is look at their eyes. 18 except to appear as an expert. 18 But let's suppose you have somebody who has a real 19 Q. Getting back to the tests themselves, 19 problem with balance because of some medical 20 why three? Is there any significance to why - 20 condition, or you have somebody who has really 21 you've already told us you found that some of them 21 strange eyes for some reason that I don't know. 22 were repetitive and things like that 22 But if that's the only test you have, you really 23 Can the officer make a reliable 23 don't have any basis for a decision. 24 decision based on one test, or does he need all 24 Q. Now, initially when you did the 25 three? 25 experiments on these, they were done in the Page 45 Page 47 1 a. Okay. One of the reasons for three, 1 facilities where you have a somewhat controlled 2 coming at it from one direction, is officers don't 2 environment? 3 have all night to do all the tests in the world out 3 A. Absolutely. 4 there. There is a limit as to the amount of time 4 Q. The overwhelming percentage, if not 5 they can invest in any one stop. So the 5 100 percent of the time these tests are given on 6 redundancy —I can't justify the redundancy. If 6 the side of the road, how much of a factor does 7 you're not getting more information, why do more 7 that play? 8 tests? 8 A. That plays a factor mat works — 9 Coming at it from the other direction, 9 well, there's a number of factors working here, and 10 although Horizontal Gaze Nystagmus is almost as 10 it works both ways. Certainly, in the controlled 11 good alone a predictor as all three tests, it's 11 environmentwhere there was no consequenceto an 12 kind of a maximum of testing, whether roadside or 12 officer's error, that had to affect the data. If 13 educational or psychological or medical testing, 13 you look at the data, you can see it did. 14 that if it's an important decision, you don't want 14 One of the things that I'm often 15 to base it, unless you have to, unless 15 challenged on is in the first experiment,they made 16 circumstances force you to —but you would prefer 16 a lot of false alarms. That is, they said this 17 to have evidence from more than one test. 17 person is above .10 when, in fact, they weren't 18 If you had very disparate results - 18 If you look at the data as I did, you discover that 19 let's take anotherfield. If you went to your 19 their criterion was really .08. In other words, 20 physician and he had one test that said you have 20 they were saying arrest at the point they saw 21 diabetes and another that said you have heart 21 significant impairment. That was .08, not .10. 22 disease and anotherthat said you have cancer, I 22 Their sergeants are not going to be 23 thinkhe would be a little puzzled. He wouldlike 23 upset and the lieutenant is not going to be upset 24 to see all his markers, blood tests, EKG's, 24 if they make an error, and this person is not going 25 pointing in one direction to give him some 25 back on the road driving impaired. So you can't Page 46 Page 48 LORI RAYE COURT REPORTERS (818.508.1418) Page 45 - Page 48

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 believe we left off historically with your taking 1 proposal and you get it? 2 the original six through the experimental stages, 2 A. Correct 3 and coming down with three. 3 Q. You get the contract? 4 A. Correct. 4 A. Correct. 5 Q. And do you recall about when that was? 5 Q. This was in what year, if you recall? 6 A. That report was submitted in June of 6 A. Well, the final report was in '81, 7 1977. 7 which leads me to believe it would have been '79. 8 MR. BAIR; That was the '77 report? 8 I don't recall the exact date of the initiation, 9 THE WITNESS: Correct 9 but it was, again, a two-and-a-half to three-year 10 MR. BAIR: And you did a report in '81? 10 project. 11 THE WITNESS: That was the follow-up contract 11 Q. So you spent about a year and a half, 12 that studied only the three. 12 two years analyzing data again, fme-tuning — 13 BY MR. KAPSACK; 13 A. We ran a whole other experiment. 14 Q. So '77 comes, you've been submitting 14 Q. You ran a whole other experiment? 15 progress reports to NHTSA all along, but now you 15 Okay. Same type of experiment you described 16 start with the ride-alongs and the reading, culling 16 before? 17 it down to 15, taking the 15 down to six, and the 17 A. Very similar, except now we only use 18 six to the experiment. Now you say, "These three 18 three tests, not six, but the design was similar. 19 are the three best, as far as we're concerned, that 19 We brought ten police officers in, trained them how 20 we recommend should be the standardized battery," 20 to do it in a standardized way, recruited 21 NHTSA takes that and agrees with you? ' 21 subjects. Everything was double-blind. 22 A. I don't know if we used the word 22 One thing we did differently between 23 "recommend." What you do in the final report is 23 the two and the one is that in the second study, we 24 you report everything you did. Everything. Who 24 brought about 100 of the subjects back for a second 25 the subjects were, how you did the experiment, your 25 session. The reason for that was to examine the Page 41 Page 43 1 data analysis. Then you reach some conclusions 1 reliability of the tests. "Reliability" being used 2 based on that set of work. Those conclusions were 2 here in the statistical sense. It's very similar, 3 that those three tests were the best at 3 but has a very specific meaning. 4 discriminating between above and below .10. 4 If you bring the subjects back, 5 Q. So now four years goes by. 5 produce the same BAC, have them examined again with 6 A. Couple years. A year and a half, two 6 the same tests, sometimes by the same officer, 7 years. 7 that's one kind of check. Sometimes by a different 8 Q. Okay. I'm not going to ask you what 8 officer. Do you get the same results? 9 NHTSA did, because you don't work for them so you 9 And you have to have two 10 don't know. But they turn around and say "We're 10 administrations of the test battery to the same U soliciting proposals again," or something along 11 person in order to do that So that was an 12 those lines? 12 addition. 13 A. Yes. 13 Also, we did a small field study. Not 14 Q. This time, it's for a follow-up study? 14 a good field study, not big enough. There were a 15 a. What the second study was to do was to 15 lot of things that we didn't like about it, and 16 do further research with the three tests to 16 reported that we didn't like it because there 17 standardize them. In other words, to standardize 17 weren't funds to do it That was the second. 18 them and develop the scoringand the administration 18 Q. So you submit that report, or the 19 procedures so that they would be as sensitive as 19 report of all this in '81? 20 you can make them. In other words, we have 20 A. Correct. 21 identified the best tests. Now let's make it the 21 Q. And you fine-tune the standardization? 22 very best test battery we can make it 22 A. Correct. 23 Q. Some fme-tuning? 23 Q. And supplement your findings with the 24 A. Some fine-tuning. 24 additional data? 25 Q. Same type of thing, you submit your 25 A. This time we had 297 subjects.

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 talking about here, has not changed. 1 Q. I know the answer, but we have to get 2 'Let me addthatthe drug recognition 2 it down for the reporter. 3 expert policeman uses five tests, and they include 3 When you say "Guess what? These are 4 the Finger-tc-Nose and the Romberg with a time 4 the best tests," you mean the same three we've been 5 estimation. There are very good reasons for doing 5 talking about? 6 that when you're looking for drugs because those 6 A. Correct. 7 two tests give you informationwith regard to drug 7 Q. Now, these standardized tests were 8 symptoms that the others don't. But the 8 developed as an aid for officers to make an initial 9 standardized field sobriety tests have not 9 determination in the field as to initially whether 10 changed. 10 or not the person had a blood alcohol level that 11 BY MR. KAPSACK: 11 was over .1; correct? That was the initial — 12 Q. I guess part of the question that I 12 A. That's correct, .1 or above. „—_«, 13 was picking up is, has there been any time that 13 Q. These tests, in and of themselves, 14 somebody said, "Hey, the officers in Alabama have 14 don't state whether the person is able to drive the 15 just started doing this test, and they say it works 15 vehicle. In other words, these tests show there is 16 really well"? 16 a likelihood that someone is over .1, and since the 17 Have you had that kind of information 17 medical community is pretty much in agreement 18 come to you and had a chance to evaluate that? Has 18 over .1 means you're not capable of operating a 19 anybody said, "There's a new test that officers are 19 motor vehicle reasonably under the law, at least, 20 using," and you say, "Let's put it in the lab and 20 the tests can therefore be used for that, but 21 see if it works"? 21 directly, the tests don't show the ability or 22 A. No. First of all, I see a lot of road 22 inability to operate a motor vehicle; correct? 23 tests used by officers because I see arrest 23 A. Correct. What you're asking is, are 24 reports. But you have to understand when you're 24 these tests of driving? They are not If they 25 nonprofit research, you only do what somebody pays 25 weretests of driving, they would be field driving I Page 37 Ptge39 1 you to do. You don't have the luxury of doing 1 tests. I can elaborate on the reasons and 2 anything else. 2 everything behind that if you want, but they are 3 Q. I assume that you keep up to date in 3 not tests of driving. They are tests of sobriety. 4 this field, keep abreast of any other studies that 4 There's a whole series of literature that tests 5 are going on regarding — 5 alcohol and driving schools. —— 6 A. Field sobriety tests? 6 Q. That's me nursing link, so to speak. 7 Q. Yes. 7 The sobriety tests will tell you the probable level 8 A. To my knowledge, there are not any 8 of alcohol, or at least the probable minimal level 9 others going on. 9 of alcohol, and then you go to the literature or 10 Q. Well, that was the follow-up 10 the expert or the doctor to say what effect that 11 question. 11 level of alcohol will have on a person's mental and 12 A. To my knowledge. It's possible that 12 physical abilities regarding driving? 13 somebody somewhere is doing something, but I have 13 A Well, the research over the years is 14 no information about that 14 what led the legislators to choose the levels that 15 Q. Obviously, some little sheriffs 15 they did. And as the research accumulates, those 16 office somewhere could be doing their own 16 levels keep coming down. The officer is not 17 experiment But if it was a major type of thing, 17 charged with making a decision about driving skills 18 you would know about it? 18 at roadside. He couldri't. IhenVsno way you can 19 . a. Yes, I would. Let me add, there has 19 judge somebody in five minutes at roadside that you 20 been a revalidation or validation study for 20 never saw before to make a decision about their 21 the .08. That was done by a research group called 21 driving skills. 22 National Public Services Research Institute in 22 What he is charged with doing is 23 t-andover, Maryland.. It was done two or three years 23 making a judgment about their sobriety or presence 2.4 ago. Essentially, they said, "Guess what? These 24 of alcohol or impairment by alcohol, if you will. 25 are the best tests." 25 Q. To fill in the blanks a little bit, I Page 38 Page 40 L0JU RAYE COURT REPORTERS (818.508.1418) Page 37 - Page 40

EXAM UNDER OATH Multi-Page TM FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 nine steps, et cetera, those are critical because 1 focal distance is not going to undermine the 2 the nature of the task requires them to assume the 2 results. 3 stance on the line, to stand in that position while 3 BY MR. KAPSACK: 4 they're given instructions, and the ability to 4 Q. Okay. These instructions that you 5 understand and follow the instructions is part of 5 talk about are the instructions that eventually 6 the test. 6 found their way into the NHTSA manual? 7 Cn if th^y Hr^'t do that that's 7 A. Correct 8 important. And then whether or not the results 8 Q. Did you get an opportunity - and I 9 bnvr n? Tmirh mutininc fin ymi would lik? *hrw ** 9 know we're jumping around a little bit, but did you 10 bepomes problematic;—-— 10 get an opportunity to review the NHTSA manual 11 Q. Let me see if I can bring this to a 11 before it was put into mass publication to make 12 level that at least I understand. 12 sure they didn't change any of the things you had 13 For instance, nine steps is the 13 told them along the way? 14 standard on a Walk-and-Turn; correct? 14 A. Again, yes and no. The first manual 15 A. Correct 15 was sent to me, and I reviewed it, and there was at 16 Q. If the officer tells the person to 16 least one thing in the manual which I thought was 17 take only seven steps instead of nine, but the 17 an error and advised them of it It was 18 person falls off the line each and every time, it's 18 subsequently changed. But there have been 19 not really important that he only had him do seven? 19 subsequent editions, and I'm not sure that I have 20 A. That's correct. 20 reviewed all of those, certainly not prior to their 21 Q. But on the other hand, if the officer 21 release. I may have eventually obtained a copy of 22 says "I want you to take 35 steps," and after 13 or 22 all of them, but I didn't review them. 23 14 the guy steps off the line, that kind of 23 MR. BAIR: But, really, the conclusions from 24 deviation may mean that the officer's conclusion 24 your first study, more or less, have remained the 25 that the person is under the influence or over a 25 same? All of your additional studies have only Page 33 Page 35 1 certain level could be wrong because he's gone to 1 served to compound those conclusions or to 2 the point that it could be fatigue or something 2 reinforce those conclusions? 3 else? 3 THE WITNESS: There have been no substantive 4 A. I think you got the meaning of it I 4 changes in the tests or the - NHTSA developed the 5 frequently hear, for example, a lot of argument in 5 scoring; I didn't There have been some slight 6 court about whether or not the stimulus for HGN was 6 changes. NHTSA made some slight changes in 7 held exactly 12 inches in front of the person. We 7 instructions that differ from what we did. Again, 8 wrote into the instructions a distance as being a 8 I don't think they're substantive, and I don't 9 comfortable focal distance so that the person is 9 trunk they matter. 10 not trying to focus too near and gets sick and 10 MR. BAIR: Have you done any tests regarding 11 throws up, or is so far you're not sure. 11 the effectiveness of, like, the Hand-Pat test as a 12 You know, whether it's 11 and a half 12 method of testing the sobriety of the driver? 13 or 13,1 don't really care. But you have to give 13 THE WITNESS: Unless the Hand-Pat was part of 14 an instruction. In other words, hold the stimulus 14 that original series that we pilot tested, the 15 approximately 12 inches in front, up a little bit 15 answer is no. I don't remember if it was in that, 16 so you can see their eyes. You have to take these 16 but we didn't use it in either of the main 17 things in context 17 experiments. 18 MR. BAIR: But sort of also within reason? 18 MR. BAIR: So over the years, I guess, like 19 THE WITNESS: That's correct The 19 law enforcement has developed certain kinds of 20 instructions, as they're written, are written for a 20 tests, have you added any of them in and tested 21 reason. You know, having them assume the position 21 their efficacy, or have you continued to stick with 22 on the line while they listen to the instructions, 22 the three that you originally determined to be the 23 that's an important component of the test. How the 23 most accurate? 24 stimulus is held and how it's moved, those are all 24 THE WITNESS: Standardizedfield sobriety 25 part of the test. But a slight deviation of the 25 testing, which includes the three tests we're Page 34 Page 36 LORI RAYE COURT REPORTERS (818.508.1418) Page 33 - Page 36

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——*«* Kjituiata. OATH Multi-Page FRIDAY, APRIL 17, MARCELLINE BURNS 1 to why it was left behind, so to speak? 1 come from it or the data that's collected from tha 2 A. It was a sensitive test, as I recall, 2 individual canbe related to the data mat you've | 3 but it just wasn't quite as good as the ones we 3 compiled over the years because the officer who 4 recommended. The analysis didn't show it to 4 gave it in that particular case did it the way it's 5 improve the overall correlation with BAC, either. 5 always been done in the experimental situations 6 Q. And the other one was Finger Count? 6 correct? 7 A. Right Same answer. 7 A. In the experimental situation and in 8 Q. Same thing, okay. 8 the field situation, because now we have 9 Getting back to something you said, 9 accumulated a lot of years of experience. 10 when the officers first came in and you trained 10 Q. Okay. Is there any way that you can 11 them, this was the first time they had really 11 adjust for deviation from the standard? For 12 experienced a standardized format. 12 instance, let's just say, speaking generally, that 13 Is that important? 13 there's a test that the standardized format 14 A. The standardized? 14 requires the officer to do five things or asks the 15 Q. Standardization, is that an important 15 individual to do five things, but the officer only 16 factor?. 16 does four of those so the officer actually gave 17 A. Yes, it is. 17 80 percent standardization. 18 Q. How important? Is it critical, fatal, 18 Can you correlate that back to the 19 sort of important? 19 data? Can you say, "Since the officer was only 20 A. Well, if the tests are going to have 20 80 percent standardized, I should adjust the final 21 meaning as objective measures, they have to be 21 result," or does it mean the final result really 22 administered in a standardized way. 22 has no backing? 23 If Officer A - let's use 23 A Neither of the above. —- 24 Walk-and-Turn, for example. 24 Q. Okay. 25 If officer A uses 10 steps down and 12 25 A. jjvoulri nf>t trv to "l™** ** hy «"y Page 29 Page 1 steps back, there's nothing inherently wrong with 1 percentacff P»i+ ^'rrthr it nnt it hng any mrnning 2 that, and it may give him a good idea whether he's 2 jdndof depends onwhat the deviation was. Let me 3 looking at an impairment or not, but it's not the 3 give you an example. 4 standardized instructions, Therefore, the qcvripE 4 I once saw an officer taken to task, 5 and the observations don't relate to any of the 5 and that's all I'll say about that because he used 6 research data or any nf the acnimulaterl data T^er 6 the word "pivot" for the Walk-and-Turn. In other 7 the years. So it's not that the officer hasn't _ 7 words, he said, "You take nine heel-toe steps, 8 gained any information; he doesn't have the same 8 counting out loud, leave your arms to the side, 9 pase to refer it to if he changes it. 9 watch your step, and when you get to the ninth 10 q7 So it's almost as if he's creating a 10 step, pivot on that step and return in the same r 11 new test because he doesn't have the scientific 11 manner." The argument beingthat's not the right 12 data to back it up on? 12 word, and you should tell him to turn around by 13 A, Well, he's just not doing it in a 13 taking small steps. I don't think that makes much 14 standardized way. "Standardized" means everybody 14 difference. -— 15 is going to do it the same way every time. So if 15 There are things that make a 16 it's used in Seattle or Miami, it's going to be 16 difference; there are things that don't make a 17 used in the same way and it's going to be subject 17 difference. And I really think you'd have to 18 to the same interpretation and it's going to have 18 evaluate it Some of the things that people get 19 the same meaning when you get into court with it 19 upset about don't make much difference. I mean, 20 Q. When you say "meaning," you mean as 20 use a little common sense. The word "pivot," in my 21 far as reliability or accuracy? 21 mind, is not a world-shaking error. There are 22 A. I mean both. 22 other things that are more distressing. 23 Q. I think I understand. 23 If you don't givethe instructions 24 So if it's given according to the 24 properly, you don't tell them to leave their arms 25 standardized criteria, then the conclusions that 25 at their side, count their steps out loud, take Page 30 Page 32 LORI RAYE COURT REPORTERS (818.508.1418) Page 29 - Page 32

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 person was above or below .10, which was the 1 me ask you. 2 statute in California at that time, and whether in 2 What happens next, do you determine 3 the real world, this person would be subject to 3 that three of these are not valid or more valid or 4 arrest. 4 what? Where do you go next? 5 Q. And again, obviously, mis was not the 5 A. Well, once the data is collected, then 6 type of thing that was done in one weekend or two, 6 we do the statistical analysis, and you probably 7 but must have stretched out over some time? 7 don't want to know about this, but we did things 8 A. It did. I don't recall exactly how 8 like step-wise linear regression where you put some 9 long. As I said, because it completely took over 9 in and take some out to see which works best. 10 our facility to have all these people in our 10 I did canonical correlation, which 11 facility, we did it on weekends, Saturdays and 11 shows you how you best separate above and below, 12 Sundays. We had two police officers per day, and 12 which tests do that best. I did discriminant 13 as I recall, about 15 to 20 subjects, and we ran a 13 function. All of these are very sophisticated and 14 total of 238. So it took a while. 14 are done by computer. You don't crunch them on 15 Q. Again, you've already mentioned 15 your calculator. They're very sophisticated 16 double-blind and the fact that the officers did not 16 statistical methods for what we needed to do, which 17 see the drinking, so you followed appropriate 17 is not just the best test but the best 18 scientific measures for the experiment 18 combination. 19 A. We did. 19 It's fairly complex, because one might 20 Q. Again, out of everybody who was 20 be the best test, and two might be the second best 21 working on the experiment throughout any of these 21 test, but if one and two are measuring the same 22 tests, the standard field sobriety tests or the six 22 kind of thing, you might actually have a better 23 that you were evaluating, nobody did it based on 23 test by taking one and then the third one. So you 24 any whim, it was all based on pure numbers? 24 need to configure the battery as a whole, that best 25 a. Correct 25 discriminates the above and below .10.

Page 25 Page 27 1 Q. Did you drop any of the six along the 1 In fact, what the analysis showed us 2 way, or did you wait for the entire experiment to 2 is that balance is a good measure, walking is a 3 be finished to look at the data? 3 good measure, but if you've already measured 4 A. All of the subjects had at least five 4 balance, you don't gain much by measuring it 5 tests. At this time, I don't remember how we 5 again. So although Romberg, which was one of our 6 administered the Paper-and-Pencil test, whether it 6 alternates, is a very good test, an excellent test, 7 was just people who had some problem with balance. 7 if you're going to use the One-Leg Stand, you don't 8 I suspect we a<hninistered it to everybody, but I 8 really gain enough by doing another balance test to 9 trothfully don't recall without looking it up. But 9 include it. It doesn't mean it's a bad test. It's 10 everybody had the complete set of tests. 10 a good test. But you have not gained anything by 11 Q. Then this experimental portion comes 11 adding —you have not harmed anything, but you've 12 to an end, and I guess that's where your hard work 12 taken up more time. 13 really starts is you sit down and look at the data 13 Q. Right. It's repetitive? 14 and analyze the data; right? 14 A. It's repetitive. So the final 15 A. Correct. It's not the hard part. 15 configuration were the three best tests in total 16 It's the fun part 16 for making this discrimination. 17 Q. Personally, I would have thought the 17 Q. Okay. You described the three other 18 fun part would have been going to hit the drinks. 18 tests, and we'll skip the Paper-and-Penciltest 19 A. That's the difference between 19 because we don't remember it too well, and I've 20 attorneys and research people. We like math. 20 never even heard of it before today. 21 Q. The only math most attorneys like is 21 You described the Finger-to-Nose test 22 33 and 40 percent. 22 or Touch-the-Nose test 23 A. I've found that out. 23 Was that repetitive of one of the 24 Q. So you crunch the numbers, and you 24 other tests, or was it found not to be an accurate 25 make a determination that you should —well, let 25 test, or was therejust a better configuration as Page 26 Page 28 LORI RAYE COURT REPORTERS (818.508.1418) Page 25 - Page 28

EXAM UNDER OATH Multi-Page1 FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 a I looked at the final report for the 1 you were going to use as experiments. 2 research contract. 2 Can you tell us what you mean by 3 Q. Okay. So you come out of the pilot 3 "experiment"? This isn't like a chemistry thing. 4 program with these six tests? 4 A. I can describe exactly what we did. 5 A. Correct. 5 Q. Sure. 6 Q. You send a report regarding that to 6 A. We recruited the human subjects for ., 7 NHTSA; is that correct? 7 the study. The qualifications for this particular 8 A. I'm sure the results of the pilot were 8 study were that they had to be licensed drivers and 9 reported in a progress report I no longer have 9 they had to be willing to drink alcohol. Other 10 that. Based on the pilot work, we then said, "We 10 than that — because we wanted to recruit a 11 propose to do the experiment with these six tests," 11 cross-section of the driving population such that 12 and then proceeded to do so. 12 police officers were going to encounter at 13 Q. Is this still under NHTSA? Is this 13 roadside. 14 who you're still answering to for the federal 14 By random procedures, we assigned 15 government? 15 them, unknown to them, to various alcohol 16 A. I don't know what that question 16 conditions. There were more people at zero —even 17 means. I don't answer to the federal government 17 though they drank a beverage, who were at zero 18 MR. BAIR: Are they the agency that employed 18 because otherwise, we would have created the 19 you to conduct the study, NHTSA? 19 expectation to the officer that every other one or 20 THEWITNESS: We were under contract to them, 20 every third one is going to be under the influence, 21 yes. 21 and we didn't want to do that So an officer on a 22 BY MR. KAPSACK: 22 given day might see six people on the road who had 23 Q. And it hasn't changed to a different 23 had no alcohol. The actual range of BACs was zero 24 organization? This is — 24 to .15. 25 A. During this research? 25 We recruited ten police officers from Page 21 Page 23 1 Q. Right 1 law enforcement agencies in and around Los Angeles, 2 a. No, it was always NHTSA 2 and brought them in for one session which was about 3 Q. I wanted to make sure we were clear on 3 four hours long, and we trained them on how we 4 that, and the CIA didn't come in and say "We're 4 wanted them to administer these six tests. In 5 taking over this project" 5 other words, "You do it this way; not creative, not 6 A. No. 6 inventive; you do it this way." But it was a short 7 Q. So in the report, you suggest to NHTSA 7 training, and given that police officers had not 8 that you be allowed to use these six tests to take 8 had any experience with standardized testing 9 into the field or into the laboratory? 9 methods, I feel fairly confident saying they hadn't 10 A. Yes. Although I don't have those 10 developed any particular confidence themselves in 11 progress reports, I'm sure what happened was at the 11 what they were doing. 12 end of the pilot study, in our progress report, we 12 Nonetheless, we brought them in two at 13 reported the findings on the pilot studies, 13 the time on weekend days. We brought in, as I 14 reported the six that we expected to examine and 14 recall, about 15 to 20 people for drinking 15 experiment, and undoubtedly detailed how we were 15 sessions. The officers didn't see the people 16 going to conduct the experiment 16 during the drinking period. They were segregated. 17 Q. Then I would take it that you got the 17 They had no contact with them until they reached 18 official go-ahead. 18 their peak BAC, measured via breath instrument, and 19 A. I'm sure we did. 19 they were introduced into the room. At that point, 20 Q. Because you went ahead? 20 the officer could ask questions. 21 A. We went ahead. 21 We had one of our staff in the room as 22 Q. Okay. So now you go ahead with these 22 well to observe everything that was going on. He 23 six tests? 23 couldask them thekinds of things he askedthem at 24 a. Right 24 roadside, then administered the test, and then he 25 Q. And you said that these are the ones 25 had to record a decision whether he believed that Page 22 Page 24 LORI RAYE COURT REPORTERS (818.508.1418) Page 21-Page 24

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 191 MARCELLINE BURNS 1 Q. As you said before, you weren't 1 before, Horizontal Gaze Nystagmus, Walk-and-Turn 2 just - let me back up. 2 and One-Leg Stand? 3 We're saying "you." You weren't alone 3 A. That's correct, based on the 4 in this project were you? 4 statistical analysis of that first experiment 5 A. No, I was the project director on the 5 Q. Again, it's not based on any whim or 6 first experiment. My colleague, Herbert Moskowitz, 6 anything; this is what the numbers show? 7 was also involved in that one. 7 a. Absolutely. 8 Q. So we're using the plural "you," so to 8 Q. So you give the final blue ribbon 9 speak. 9 report, all typed on the right-size pages with the 10 A Right 10 right margins that the federal government always 11 Q. You weren't given the money and cut 11 wants, tape instead of staples so no one cuts their 12 loose, and the feds said, "Give us a report in two 12 fingers, and you give it to NHTSA? 13 years"; they were watching you, expecting regular 13 A. That's correct. 14 reports back? 14 Q. And now, NHTSA, it's my understanding, 15 a. That's correct. Part of your 15 put it together in a training manual; correct? 16 contractual agreement is that you report your 16 A. Not yet There's another process. 17 progress on a monthly basis. 17 Q. Okay. Go ahead. What happens next? 18 Q. This may be hard for you to recall, 18 A Well, understand that the first 19 and if you don't recall that's fine. 19 experiment we were examining —not we. Police 20 At any time during this process, did 20 officers wereexamining subjects who had zero 21 the agency or department, whoeverwas overseeing 21 to .15 BAC in a double-blind designed experiment 22 you for the federal government, besides accepting 22 with six tests. We had come out of the pilot 23 reports or anything else, ever come in and say 23 experiment with six tests mat we believed might 24 "Wait a minute," or "Look at this," or direct you 24 work at roadside. 25 in any way, or were you pretty much allowed to 25 Q. Let me interrupt for a minute.

Page 17 Page 19 1 focus on what you felt was scientifically correct? i Could you please tell us what the 2 A. I don't recall any instance of them 2 other three tests were? I'm assuming that three of 3 taking exception to anything that we reported and 3 them are the ones that we've been talking about, 4 saying "We don't agree with this," or "Take another 4 and there were three more? 5 look," no. We're very good research people, so 5 A Correct I'll probably have to look 6 that's not sornething that happens to us. 6 at my report 7 Q. Plus it must have been a little bit 7 One of them was the Paper-and-Pencil 8 hard for anybody, since you're the first ones going 8 test. We wanted very much to find something to use 9 down the path, to say "You're not going the right 9 when the person says, "But I have a bad leg -" or 10 way"? 10 whatever — "and can't do balance tests." So we 11 A That's true and not true. There was 11 had Paper-and-Pencil actually, a couple. We had 12 another large-scale project going on in Finland 12 one and an alternate. Neither one of them proved 13 slightly before this. I didn't know about it early 13 workable, All of the other tests had some level of 14 on, and so I don't know if NHTSA knew about it 14 accuracy. 15 But in fact, there had been a pretty good and 15 What we did was take the best ones. 16 rather extensive study that was done differently 16 Let me - one of them was the Finger-to-Nose. I'll 17 than what we did because they did it 17 tell you what the other one was. Finger Count, I 18 retrospectively by looking at records. But 18 think. Correct, Finger Count. So there were me 19 interestingly enough, they came to the same 19 three tests that we finally recommended for the 20 conclusions independently. 20 test battery, Finger-to-Nose, Finger Count and 21 Q. So you're at this project for a couple 21 Paper-and-Pencil test. 22 years, and your file report —I don't know what 22 Q. Just so we're clear, given that it was 23 the right word is. I don't want to say culls or 23 20-some-odd years ago, you had to refresh your 24 whittles, but you develop the position that the 24 recollection. 25 three best tests are the tests that you mentioned 25 Could you tell us what you looked at?

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 exposition, but that's kind of the history of - Q. Let me back up a little bit. 2 Q. My question was, during your initial Obviously, you didn't jump from a huge 3 ride-alongs and stuff, did you see that there were number, from 15 to 3. It must have been different 4 certain tests that really were sort of folklorish, stages along the way. 5 and wonder whether or not they had any basis to aid About how long did that process take? 6 the officer in the decision you just talked about? A. You're talking about almost 25 years 7 For instance, before we started the ago. I don't know. 8 deposition, I mentioned there was one place where Q. Okay. I understand. 9 they said they had stopped people and made them A. The research began in '75. A final 10 recite the alphabet backwards, and that had 10 report was issued in June of '77. I did all the 11 absolutely no connection. 11 traveling, the literature review and the pilot test 12 Did you discover, in either some of 12 before we actually began the experiment. So I 13 the tests that you didn't include in your group of 13 would guess it was probably three or four months, 14 15, or later on, that there were certain tests 14 but I don't recall. 15 where people or officers or the community thought, 15 Q. So obviously, it wasn't a hasty, 16 hey, this is a good test to give somebody as an 16 overnight decision.^ It went through the stages you 17 indication, but it turns out it really wasn't a 17 just described, the initial reading and observation 18 good test? 18 by yourself, and then some pilot studies? 19 A. Well, certainly, I observed tests that 19 A. Yes. And when you perform research 20 didn't make the cut. Where those tests - you 20 for the federal government for agencies, they don't 21 characterized them as folklorish. I don't know 21 just give you the money and walk away and say "Let 22 where they came from. Since there had been no 22 me know when you get finished." There is an 23 research in this area, since there had not been a 23 overview process. So you're making monthly 24 big emphasis on alcohol enforcement I don't know, 24 progress reports to them, and they're part of the 25 but I would suspect they just developed what they 25 decision process and part of the evolvement of what Page 13 Page 15 1 found to help them. Because at that point, there 1 you actually do. 2 was no research on the validity and reliability of 2 So if I had said, just arbitrarily, 3 these things. But yes, there were tests being used 3 "Well, I don't like these, and I like these," I 4 in 1975 which did not make it into the first 4 would have been called on that. So it's a rigorous 5 experiment. 5 process. 6 Q. Okay. Now, after your initial reading 6 Q. Thank you. That was exactly the 7 of the literature and some of your ride-alongs, 7 question I was trying to get to and I didn't hit it 8 you've culled down to a group of 15. Then you said 8 quite right, but your answer did. 9 shortly after moving it into the lab, some of those 9 So you didn't say, "I don't like this 10 were cut out for economic reasons or just 10 test, I'm not going to bother with it"; if a test 11 practicality reasons, like you said, the officer 11 appeared to be a test that was going to make the 12 not having the time or equipment, or not being safe 12 grade, it stayed in whether you liked it or not, 13 to conduct some of these tests on the side of the 13 and if it appeared it wasn't going to make the 14 road, which is the environment the officer finds 14 grade, it got dumped by the wayside whether you 15 himself in; correct? 15 liked it or not; correct? 16 A. Not quite. Those issues are all 16 A. That's very accurate. Whether I liked 17 constraints at roadside. But the reason some of 17 it or didn't like it, I don't remember having any 18 those tests were eliminated in pilot studies could 18 strong feelings one way or the other. But in 19 be one of several. Either they weren't sensitive 19 research, numbers are what make the decisions, not 20 to alcohol, they didn't discriminate between above 20 your subjective evaluations. 21 and below .10, or they were not suitable for 21 Q. To state the obvious, because that's 22 certain ages or certain conditions. There were a 22 part of the reason why we're here, this was all 23 variety of reasons why theyjust wouldn't work. 23 done in what is considered scientifically 24 Q. Didn't make the grade? 24 acceptable means; correct, all these testings? 25 A. Didn't make the grade. 25 A. That's correct.

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 Q. More than 100? 1 the wide-ranging skills of the people you're 2 A. Well, if you include hearings as being 2 dealing with, all of thosethings, plus you're 3 testimony, it probably would not be more than 100. 3 dealing with the fact of what the squad cars don't 4 I don't know. I have no idea. 4 have —they already have too much, and we couldn't 5 Q. The times that you have testified 5 suggest adding apparatus on the basis of both cost 6 either at trials or hearings, have you been 6 and just practicality. 7 admitted as an expert - 7 . We had to mink about officer safety, 8 A. Yes. 8 what they could do, and all those things eliminated 9 Q. - regarding standardized field 9 most of the potential tests. We ended with six 10 sobriety tests? 10 that we believed had some merit, and then conducted 11 A. Yes. 11 the first laboratory study with those. 12 Q. Subsequent to your study, were the 12 Q. Regarding the initial list of 15 13 three standardized field sobriety tests adopted by 13 tests, you eliminated some of those based on a 14 NHTSA? 14 variety of reasons. 15 A. I don't know that NHTSA uses the word 15 Were there any tests at that time that 16 "adopted." What they did is they took the 16 were being given by officers which, although they 17 findings that we reported to them. They also took 17 may have been given in that particular jurisdiction 18 our data, our actual data set, and one of their 18 for a long time, really had no basis in science, no 19 staff, a man named Schweitz, did some additional 19 viability? In other words, they really didn't 20 analysis. Ultimately, they produced a training 20 relate to what the officers were investigating? 21 manual and began to sponsor training. 21 A. I'm not sure I know how to answer 22 Now, I've told you about all I know 22 that. 23 about that because I don't work for NHTSA, except 23 What officers were doing in 1975 24 as a researcher. So I'm not really privy to all 24 was - there was a lot of variability between 25 those processes. 25 agencies, even between officers and even between Page 9 Page 11 1 Q. Going back to 1975, shortly after you 1 one arrest and the next. "Standardized" was not a 2 get the go-ahead and the funding to start the 2 word that had entered law enforcement in 1975. I 3 research in this area, did you start with the idea 3 think they were doing the best they could. 4 that there were these three tests, Horizontal Gaze 4 I've been puzzled about this for a 5 Nystagmus, Walk-and-Turn and One-Leg Stand, that 5 long time, that since the automobile was introduced 6 you were going to evaluate, or did you look at a 6 around the turn of the century, it was recognized 7 broader base of tests that were currently being 7 that alcohol and driving weren't going to combine 8 used or talked about in the field? 8 very well, if you look at the literature. Why had 9 A. Neither. 9 there been nothing done? The first statute with a 10 Q. Okay. 10 number, which happenedto be .15, was enacted in 11 A. Any research project —well, that's a 11 Indiana fairly early on. I don't remember the 12 pretty broad statement. I began a project with the 12 exact date. I have to look it up. So 1was really 13 literature reviewed to find out what the state of 13 puzzled about why nobody thought about how the 14 knowledge was concerning that topic at that time. 14 officers were going to enforce these statutes. 15 That was the first thing I did. 15 If you think about it, if you're 16 The second thing I did was went around 16 talking about .15, you're talking about a visibly, 17 various places in the United States and rode with 17 obviously intoxicated person. Probably they didn't 18 DUI teams, special enforcement teams to actually 18 need a lot of help at that point. But when it 19 determine what it was that they were doing. 19 switched from thinking about drunk drivers to 20 Then finally, we compiled a fairly 20 thinking about impaired drivers, which is what the 21 long list of tests. I think there were on the 21 scientific literature was moving toward, then it 22 order of 15 to 20 that we thought might work. We 22 became clear that officers need some help in being 23 did some pilot testing with them. It soon became 23 able to recognize the signs and symptoms associated 24 evident that given the constraints at roadside, the 24 with impairment by alcohol. 25 time, variability and circumstances, the weather, 25 I forgot why I got onto that long Page 10 Page 12 LORI RAYE COURT REPORTERS (818.508.1418) Page 9-Page 12

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS 1 A. lam. 1 gone to .10. If the average arrest is :17, that 2 Q. Is there any need for me to go over 2 means that a lot of people who probably ought to go 3 them with you? 3 to jail are not doing so because the officer is 4 A. No. 4 either not detecting the driving pattern that leads 5 Q. Obviously, at the end of this, you'll 5 him to stop the vehicle, or once he stops a 6 receive a copy of the transcript. If you need to 6 vehicle, he's not recognizing the presenceof 7 make any changes, you'll have an opportunity to do 7 alcohol. 8 so. 8 The National Highway Safety 9 A. Okay. 9 Administration actuallyfunded several research 10 Q. I have here what will be marked as 10 contracts, but the RFP that we responded to was 11 Exhibit 1, a copy of your cv that you gave me 11 specifically to develop a battery of tests that 12 today. 12 police officers could use at roadside that would 13 Is this an accurate and up-to-date 13 help them to make the correct decision so that it 14 copy of your cv? 14 is a competitive bidding process. 15 A. It is. 15 Our bid, both the technical proposal 16 Q. I'm not going to go into it in any 16 which outlines how to expect to do it, what your 17 depth. 17 expertise is, so form, and our cost proposal won 18 (THE DOCUMENT REFERRED TOWAS MARKED 18 that award, and we began that research in 1975. 19 BY THE REPORTER AS EXHIBIT IFOR IDENTIFICATION AND 19 The final report was submitted in 1977, and it was 20 IS ATTACHED HERETO) 20 in that report that we recommended the three tests, 21 BY MR. KAPSACK: 21 Horizontal Gaze Nystagmus, Walk-and-Turnand 22 Q. We're here today to discuss 22 One-Leg Stand. 23 standardized field sobriety tests. 23 Based on that recommendation, they 24 Are you familiar with that subject? 24 subsequently issued a second contract to us to do a 25 A. lam. 25 second study with just those three tests, and that Page 5 Page 7 1 Q. Could you tell us briefly how it is 1 one was completed in 1981. So that's how I got 2 that you know about standardized field sobriety 2 into this area. 3 tests, outside of maybe saying it's something that 3 Q. Okay. Your background information 4 your father knew and his father before Him knew. 4 regarding your ability to get into this area, your 5 A. Well, I'm one of the founders of and 5 expertise, et cetera, is covered in your CV; 6 the current director of the Southern California 6 correct? 7 Research Institute. That's a nonprofit research 7 A. Yes and no. 8 group. We're funded by grants and contracts. 8 Q. Okay. 9 I don't know how much you know about 9 A. At that time, I had several years' 10 that process, but contracts are issued when the 10 background in studying the effects of alcohol and 11 government agency identifies an area of research 11 other drugs. I didn't have any background in 12 that they think needs to be done, and they issue a 12 roadside tests, nor do I think anybody in this 13 request for proposal. Any research group that 13 country did at that time. It's not a research 14 believes they are competent to do that work can 14 topic that has gotten a lot of attention worldwide. 15 respond with a cost proposal and technical 15 Q. Okay. I forgot to ask this in the 16 proposal. 16 beginning, so I'll ask it now. 17 In 1975, the National Highway Traffic 17 Haveyou testifiedin court previously 18 Safety Adniinistration, NHTSA, realized that the - 18 regarding standardized field sobriety tests? 19 this is my understanding of what led to the request 19 a Yes. 20 for proposals. They recognized that the average 20 Q. Can you give us a ballpark figure as 21 blood alcohol concentration of arrests nationwide 21 to the number of times? 22 was .17 percent BAC. 22 A. No, not really. Not an accurate one. 23 The prevailing statute was 23 A lot of times, but I have no idea how many. 24 .10 percent. There may have been one or two that 24 Q. More than ten? 25 still had a high one, but most of the states had 25 a. Yes.

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EXAM UNDER OATH Multi-Page FRIDAY, APRIL 17, 1998 MARCELLINE BURNS

WIWESS

IK RE! MARCELLINE BURNS, Ph.D.

EXAMINATION UNDER OATH 6 EXAKIMATION FACE

or 7 B* MR. KAPSACK * Page» X - 62

B

XARCELLINB BURETS

9

10

11

12

13 HO. DESCRIPTION

14

15 1 curriculum Vita* of Marcelline Burnt, Ph.D.

16

EXAMINATION WIDER OATS OF XARCELLIHE BURNS, Ph.D. 17

TAKEN OH IS

PRIOAY, APRIt 17, 1996 19

20

21

22

23

REPORTED BY: LORI RAVE 24

CSR NO. 7092 25 Pag* 1 Page 3

LOS ANGELES, CALIFORNIA, FRIDAY, APRIL 17,1998 Examination Undar oath of MARCELLINE BURNS, 12:20 p.m.

Ph.D., taken at 12400 Wilihlr* Boulevard,

Suit* 1300, Lor Angelei, California, on Friday,

April 17, 199S, at 12:15 p.n., bafoce Lori ftaya, MARCELLINE BURNS, Ph.D., CSR No. 70S2, puriuant CO notica. HAVING BEEN FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:

EXAMINATION

APPEARANCES:

BY MR. KAPSACK:

Q. Could you please state your name and FOR ROBERT SOWN:

spell your last name for the record.

A. My name is Marcelline Bums, KAPSACK i BAIR, LLP

B-u-r-n-s.

BY: BRUCE KAPSACK, ESQ.

HUDSON BAIR, ESQ.

Q. And it's Dr. Bums; correct?

353 sacramuto 3treat Suit* 1SO0 A. Correct San Fruieiieo, California 94111 (415) 421-1021 Q. Have you had your deposition or examination under oath taken in the past, Dr. Bums?

A. I have. Q. On more than a couple of occasions? A. Yes. Q. So you're familiar with the rules of Pag* 2 depositions?

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

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