State v. Cochrane

897 A.2d 952, 153 N.H. 420, 2006 N.H. LEXIS 48
CourtSupreme Court of New Hampshire
DecidedApril 26, 2006
DocketNo. 2005-021
StatusPublished
Cited by8 cases

This text of 897 A.2d 952 (State v. Cochrane) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cochrane, 897 A.2d 952, 153 N.H. 420, 2006 N.H. LEXIS 48 (N.H. 2006).

Opinion

Galway, J.

After a jury trial, the defendant, Daniel Cochrane, was convicted of driving while intoxicated (DWI), fourth offense. See KSA 265:82, :82-b, 11(c) (2004 & Supp. 2005). The defendant appeals an order of the Superior Court {Mangones, J.) denying his motion in limine to exclude the arresting police officer’s testimony regarding the Horizontal Gaze Nystagmus (HGN) test. We affirm.

The record supports the following facts. On August 10, 2003, Officer Marc Beaudry of the Manchester Police Department observed the defendant driving the wrong way on a one-way street in Manchester. After stopping the defendant, Beaudry noticed that his eyes were glassy and [421]*421bloodshot and that there was an odor of an alcoholic beverage coming from the car. Beaudry asked the defendant to submit to four field sobriety tests, including the HGN test. Based upon his observations during the field sobriety tests, Beaudry arrested the defendant for DWI.

Approximately ten days before trial, the defendant filed a motion in limine to exclude Beaudry’s testimony regarding his administration of the HGN test. The defendant asserted that Beaudry was required to testify as an expert witness in order to establish a proper foundation for its admissibility pursuant to New Hampshire Rule of Evidence 702 and State v. Dahood, 148 N.H. 723, 735 (2002). Because the State had not complied with the pretrial disclosure requirements in Superior Court Rule 98 (Discovery in Criminal Cases) and RSA 516:29-a (Supp. 2005) (Disclosure of Expert Witnesses), the defendant contended that Beaudry’s testimony was not admissible at trial. The State countered that Beaudry’s testimony regarding the HGN test was not expert testimony and, therefore, it was not required to comply with pretrial disclosure requirements pertaining to expert witnesses. The trial court ruled, in accordance with its interpretation of Dahood, that if the State laid the appropriate foundation encompassing “[Beaudry’s] training and how [sic] whether or not the predicates of the test were met,” Beaudry’s testimony regarding the HGN test would be admissible.

On appeal, the defendant asserts that Beaudry’s testimony regarding the administration and interpretation of the HGN test constituted expert scientific testimony. He interprets Dahood as requiring expert testimony because in that case we determined the admissibility of the HGN test under New Hampshire Rule of Evidence 702 and the Daubert test. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609 (2002) (adopting the Daubert test to determine the admissibility of scientific evidence).

Relying upon State v. Arsenault, 115 N.H. 109 (1975), and its progeny, however, the State argues that Beaudry’s testimony was lay testimony based upon his observations of the defendant while the test was being administered. The State asserts this interpretation comports with Dahood.

Evidentiary rulings are within the sound discretion of the trial court. State v. Fernandez, 152 N.H. 233, 242 (2005). We review the trial court’s ruling for an unsustainable exercise of discretion. See State v. Lambert, 147 N.H. 295, 296 (2001). “We will reverse the trial court only if the appealing party can demonstrate that the ruling was untenable or unreasonable and that the error prejudiced the party’s case.” State v. Gonzalez, 150 N.H. 74, 77 (2003) (quotation omitted).

We described the HGN test in detail in Dahood. See Dahood, 148 N.H. at 728-29. In summary, it is a standardized field sobriety test designed to [422]*422detect nystagmus, i.e., an involuntary, rapid, back-and-forth jerking of the eyes. Id. at 728. The administering police officer positions a stimulus, such as a pen, penlight, or finger, approximately twelve to fifteen inches in front of the suspect’s eyes and gradually moves the stimulus laterally towards the suspect’s ear. Id. The officer observes the suspect’s eyeballs to detect the following three signs, which could indicate intoxication: (1) the inability of the eye to smoothly track the stimulus; (2) the presence of nystagmus at the eye’s maximum horizontal deviation; and (3) the point at which nystagmus, if present, begins as the stimulus is moved. Id. The officer tests each eye and gives the suspect a point for each sign observed; therefore, a total of six points is possible. State v. O’Key, 899 P.2d 663, 674 (Or. 1995).

In Dahood, we considered the admissibility of the HGN test as scientific evidence under New Hampshire Rule of Evidence 702 and Daubert. Dahood, 148 N.H. at 726. We concluded that the HGN test is based upon scientific principles that are reliable, and that HGN test results are admissible as a matter of law provided their proponent presents “a qualified witness who can testify about the subject.” Id. at 735. Such evidence is admissible for the limited purpose of providing circumstantial evidence of intoxication. Id. at 730. Thus, HGN test results are a factor to be considered when determining whether a defendant is intoxicated and may not be introduced for the purpose of establishing a specific BAC level. Id. at 734.

In Dahood, consistent with a majority of jurisdictions, we recognized that “to establish a proper foundation, the State must put forth evidence that the police officer who administered the HGN test is trained in the procedure and that the test was properly administered at that time.” Id. at 735. Once the State has established the requisite foundation regarding the police officer’s training and administration of the HGN test, “a properly trained and qualified police officer may introduce the HGN test results at trial.” Id. While Dahood addressed the admissibility of the HGN test, it did not address whether the testimony of the police officer introducing the HGN test results constitutes expert or lay testimony.

“Expert testimony involves matters of scientific, mechanical, professional or other like nature, which requires special study, experience, or observation not within the common knowledge of the general public.” Gonzalez, 150 N.H. at 77 (quotations omitted); see N.H. R. Ev. 702. In contrast, “[l]ay testimony must be confined to personal observations which any lay person would be capable of making.” Gonzalez, 150 N.H. at 77 (quotations omitted); see N.H. R. Ev. 701.

[423]*423The theory underlying HGN testing is that “alcohol consumption causes nystagmus, and that a trained officer can detect such nystagmus.” Dahood, 148 N.H. at 734. A police officer’s testimony regarding his training, his administration and scoring of the HGN test, and the HGN test results as established by the National Highway Traffic Safety Administration (NHTSA) standards and guidelines does not require an understanding of the underlying scientific mechanisms explaining the phenomenon of nystagmus itself. All that is required is an understanding that alcohol consumption can cause nystagmus, which can be detected by a trained police officer through observing the defendant during the administration of an HGN test.

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Bluebook (online)
897 A.2d 952, 153 N.H. 420, 2006 N.H. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cochrane-nh-2006.