State v. Breitung

623 So. 2d 23, 1993 WL 254347
CourtLouisiana Court of Appeal
DecidedJuly 2, 1993
DocketKW 92 2006
StatusPublished
Cited by8 cases

This text of 623 So. 2d 23 (State v. Breitung) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Breitung, 623 So. 2d 23, 1993 WL 254347 (La. Ct. App. 1993).

Opinion

623 So.2d 23 (1993)

STATE of Louisiana
v.
Julia BREITUNG.

No. KW 92 2006.

Court of Appeal of Louisiana, First Circuit.

July 2, 1993.
Writ Denied October 29, 1993.

*24 Doug Moreau, Dist. Atty., Baton Rouge by Tony Clayton, Asst. Dist. Atty., for State of La.

M. Michele Fournet, Baton Rouge, for defendant Julia Breitung.

Before LOTTINGER, C.J., and FOIL and FOGG, JJ.

FOIL, Judge.

Relator, Julia Breitung, was charged by bill of information with first offense driving while intoxicated (DWI), a violation of LSA-R.S. 14:98. She pled not guilty and filed a motion to suppress evidence of the results of a field sobriety test. The trial court denied relator's motion to suppress and found her guilty as charged. The court deferred imposition of sentence and placed relator on unsupervised probation for one year with numerous special conditions. Relator subsequently applied for supervisory writs to this Court, contending that the trial court erred in denying the motion to suppress and that there was insufficient evidence to convict relator of DWI. This Court denied the writ application. She applied for writs to the Louisiana Supreme Court. On February 5, 1993, the Louisiana Supreme Court granted the writ and remanded to this Court for an opinion. State v. Breitung, 612 So.2d 71 (La.1993). On February 10, 1993, this Court issued an order directing relator to file a brief and set the issue for oral argument.

On April 11, 1992, Officer Daryl Lawrence was headed south on Highway 67 in Zachary, Louisiana, when he "clocked" relator with his radar driving 70 miles per hour in a 55 mile per hour speed zone. Officer Lawrence pulled relator over in order to issue a speeding ticket. He asked her to walk to the front of the police vehicle, which was approximately two car lengths away. She exited the vehicle but stopped at the rear of her car. He asked her again to walk to the police unit. Officer Lawrence testified that, when relator finally walked to the police unit, he observed that she swayed and appeared to be unsteady. Officer Lawrence stated that relator's speech was "sort of slurred" and her eyes were bloodshot. He testified that, after talking with relator, he smelled alcohol on her breath.

Officer Lawrence informed relator that she would be given a series of field sobriety tests. The first test administered was the horizontal gaze nystagmus test. Officer Lawrence described relator's performance on that test as poor. The second test given to relator was the walk and turn test. He described her performance on that test as poor and consistent with a person who was intoxicated. The final field sobriety test was the one leg stand test. Officer Lawrence testified that relator performed poorly on that test also and that her performance was consistent with a person who was intoxicated.

Officer Lawrence read relator her rights and took her to police headquarters. He testified that she told him that she was on her way to her mother's house in Clinton and that she had two drinks of scotch. Relator also notified him that she was on blood pressure medication. Officer Lawrence testified that he asked the relator to submit to the breath test and she refused.

*25 Officer Keith Arnold, a Zachary Reserve Police Officer, testified that he observed Officer Lawrence administering the field sobriety tests to relator. He stated that she performed "very poorly" on the walk and turn test. He also stated that she was unable to properly perform the one leg stand test. He testified that she appeared to be "very intoxicated."

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, relator claims that the trial court erred in denying her motion to suppress the evidence as the trial court should not have considered the results of the horizontal gaze nystagmus test in its determination of guilt or innocence. Relator contends that Louisiana law requires the exclusion of the test results as evidence of intoxication because of: (1) the subjective nature of such testing; (2) the variety of factors other than intoxication that can yield a positive result; (3) the lack of statutory standards regulating the training and qualification of agents administering the test; and (4) the absence of general acceptance of the test in the scientific community.

The United States Supreme Court has defined the horizontal gaze nystagmus test as follows:

The "horizontal gaze nystagmus" test measures the extent to which a person's eyes jerk as they follow an object moving from one side of the person's field of vision to the other. The test is premised on the understanding that, whereas everyone's eyes exhibit some jerking while turning to the side, when the subject is intoxicated `the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.'

Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 2641 n. 1, 110 L.Ed.2d 528 (1990) (quoting 1 R. Erwin et al., Defense of Drunk Driving Cases § 8A.99, pp. 8A-43, 8A-45 (1989)).

The Louisiana Second Circuit Court of Appeal held that the results of a horizontal gaze nystagmus test (HGN test) are admissible as evidence of intoxication in a DWI case provided a proper foundation is laid. State v. Armstrong, 561 So.2d 883, 887 (La.App.2d Cir.), writ denied, 568 So.2d 1077 (La.1990). The proper foundation for admitting the test has been laid "when a showing has been made that the officer who administered the test was trained in the procedure, was certified in its administration and that the procedure was properly administered." Armstrong, 561 So.2d at 887.

The Louisiana Third Circuit Court of Appeal followed Armstrong and found no error in the trial court's admission of the testing procedure into evidence. State v. Regan, 601 So.2d 5, 8 (La.App. 3d Cir.1992), writ denied, 610 So.2d 815 (La.1993). Furthermore, the Second Circuit, in a more recent decision, reaffirmed its holding in Armstrong. State v. Garris, 603 So.2d 277, 281 (La.App. 2d Cir.), writ denied, 607 So.2d 564 (La.1992).

In the instant case, the state established that Officer Lawrence had been trained in the administration of the HGN test. He attended a two week course at the Baton Rouge City Police Headquarters which consisted of classroom training and actual practice of the test on subjects. After passing the course, he received a certificate. In addition to the instant case, Officer Lawrence has administered the HGN test to numerous other DWI suspects. At trial, Officer Lawrence described the manner in which the test is administered. He also explained that, in performing the test on relator, "[t]here was not smooth pursuit in either one of her eyes." He stated that, at maximum deviation, he "noticed a distinct jerking...." Further, there was a distinct jerking of the eyes "prior to the onset of the forty-five degree angle."

In denying relator's motion to suppress the HGN test, the trial court stated that, according to the officer's testimony, the test was not used for the purpose of establishing relator's intoxication but, rather, the test was used by the officer to determine whether or not he needed to "go any further" and proceed with other field tests.

We have carefully reviewed the testimony of Officer Lawrence in light of the criteria set forth in Armstrong and find that all *26 requisites were met in the instant case.

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Bluebook (online)
623 So. 2d 23, 1993 WL 254347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-breitung-lactapp-1993.