Malone v. City of Silverhill

575 So. 2d 101, 1989 Ala. Crim. App. LEXIS 778
CourtCourt of Criminal Appeals of Alabama
DecidedSeptember 29, 1989
StatusPublished
Cited by23 cases

This text of 575 So. 2d 101 (Malone v. City of Silverhill) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malone v. City of Silverhill, 575 So. 2d 101, 1989 Ala. Crim. App. LEXIS 778 (Ala. Ct. App. 1989).

Opinion

575 So.2d 101 (1989)

Ruben Max MALONE
v.
CITY OF SILVERHILL.

1 Div. 918.

Court of Criminal Appeals of Alabama.

September 29, 1989.
Rehearing Denied February 23, 1990.[*]

James W. May, Gulf Shores, for appellant.

Don Siegelman, Atty. Gen., and Venessa Campbell, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Ruben Max Malone, was convicted of driving under the influence of alcohol, in violation of § 32-5A-191(a)(2), Code of Alabama 1975. He was sentenced to one year of unsupervised probation and ordered to pay a fine in the amount of $500.00.

The facts tended to show that on the evening of April 16, 1988, after a long day of doing yard work, the appellant went to the Sea and Steak restaurant in Loxley, Alabama, for dinner. While there, he drank an unknown amount of "Canadian Mist and Seven-Up" and ate a catfish dinner. After having been at the restaurant for approximately three hours, the appellant *102 left and began the ten-minute drive back to his home in Silverhill, Alabama.

Officer Fred Freeman was patrolling Baldwin County Road 55, the road on which the appellant was traveling, when he observed the appellant's truck stopped at a four-way stop for an unusually long period of time. His suspicions aroused, Officer Freeman followed the appellant for three-quarters of a mile and observed his vehicle cross the center line several times. At this, Officer Freeman turned on his blue lights, and the appellant pulled off the road.

The appellant exited his truck, but had to hold to the bed of the truck as he walked. As Officer Freeman approached the appellant, he smelled alcohol on the appellant's breath. Officer Freeman asked to see the appellant's driver's license and also asked if he had been drinking. The appellant answered, in a somewhat slurred voice, that he had been drinking.

Based on the foregoing, Officer Freeman decided to administer the Horizontal Gaze Nystagmus (HGN) test to the appellant. The test results indicated that he had been consuming alcoholic beverages. Officer Freeman placed the appellant under arrest for reckless driving and driving under the influence of alcohol. He was then taken to the county jail.

The appellant raises two issues on appeal.

I

The appellant first contends that the evidence regarding HGN test performed on him by Officer Freeman was inadmissible at trial because he argues, it did not satisfy the test for admissibility of novel scientific evidence set out in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). During trial, a hearing was held pursuant to the appellant's motion to suppress the evidence. The trial court, after hearing Officer Freeman's testimony regarding the HGN test, denied the motion to suppress.

The question of the admissibility of this type of evidence is a matter of first impression in this jurisdiction. First, the general acceptance of the HGN test in the scientific community must be considered. We must next determine whether, in this case, a proper foundation was laid for the officer's testimony concerning the appellant's HGN test results. Finally, if we hold the HGN test results to be inadmissible, then we must consider whether there was enough evidence to convict the appellant of driving under the influence of alcohol without the positive HGN test results.

In Frye, the court held in pertinent part:
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

Frye, supra, 293 F. at 1014 (emphasis added).

Nystagmus, a well-known physiological phenomenon, has been defined and described in Webster's New Collegiate Dictionary (1980), Dorland's Illustrated Medical Dictionary (25th ed.1974), 7 Encyclopedia Britannica, Micropaedia (15th ed.1974), and Stedman's Medical Dictionary (5th Lawyer's ed.1982). The fact that nystagmus can be caused by the consumption of alcohol is also accepted by the medical profession.

"Jerk nystagmus ... is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze, disorders of the vestibular apparatus and brainstem and cerebellar dysfunction." (Emphasis added.)

*103 The HGN test has been in use for approximately 30 years. The test was apparently introduced by law enforcement agencies in the western states in the 1960's when police noticed that barbiturate users' eyes moved in quick jerks. Later, the HGN test was employed in drunk driving prosecutions in eastern jurisdictions. Its use became so widespread that the United States Department of Transportation outlined the appropriate procedures for administering the test, in its National Highway Traffic Safety Administration Bulletin DOT HS 806 512. Annot., 60 A.L.R. 4th 1129, 1131 (1988).

In State v. Superior Court In and For Cochise County, 149 Ariz. 269, 718 P.2d 171, 173 (1986), the court explained that the HGN test is administered by police officers as follows:

"In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver's eye level. As the officer moves the object gradually out of the driver's field of vision toward his ear, he watches the driver's eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver's blood alcohol content (BAC) exceeds the legal limit of .10 percent."

The court further held, after extensive research, which was listed in an appendix, that there had been sufficient scrutiny of the effects of alcohol on nystagmus to permit a conclusion as to the reliability of the HGN test. The court concluded:

"We find that the HGN test satisfies the Frye standard. The evidence demonstrates that the following propositions have gained general acceptance in the relevant scientific community: (1) HGN occurs in conjunction with alcohol consumption; (2) its onset and distinctness are correlated to BAC; (3) BAC in excess of .10 percent can be estimated with reasonable accuracy from the combination of the eyes' tracking ability, the angle of onset of nystagmus at maximum deviation; and (4) officers can be trained to observe these phenomena sufficiently to estimate accurately whether BAC is above or below .10 percent."

State v. Superior Court, supra, 149 Ariz. at 279, 718 P.2d at 181. After having reviewed the appendix referred to above, we are satisfied that the holding of the Arizona Supreme Court is a correct one. We therefore adopt this standard as our own.

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Bluebook (online)
575 So. 2d 101, 1989 Ala. Crim. App. LEXIS 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-v-city-of-silverhill-alacrimapp-1989.