Schultz v. State

CATHELL, Judge. Appellant, William Leroy Schultz Sr., was convicted by a jury in the Circuit Court for Washington County of driving under the influence, speeding, and driving with alcohol in his blood in violation of a court-ordered alcohol restriction on his driver’s license. He was sentenced to nine months detention on the driving under the influence conviction and was fined for the other convictions. Appellant raises the following questions on appeal: I. Did the court err in admitting the officer’s testimony about appellant’s performance of the horizontal gaze nystagmus test?

II

Did the court improperly influence the jury with its remarks and questions of the officer? FACTS Officer Timothy Rossiter stopped appellant on March 1, 1994, about 11:30 p.m. Upon approaching appellant’s vehicle and speaking with appellant, Officer Rossiter detected, among other things, the smell of alcohol and proceeded to administer several field sobriety tests: when asked to recite the alphabet, appellant jumbled several letters after Q; when asked to stand on one foot for thirty seconds, he had to use his other foot to maintain his balance within fifteen seconds; and, when asked to walk in a straight line heel to toe, he experienced ¹⁴⁸ some difficulty doing so. The officer also performed the horizontal gaze nystagmus (HGN) test. 1 As the officer explained at trial: You measure each eye separately and one point is assessed as the object is passed in front of the eye, if it doesn’t move smoothly, that’s a point.

Once you get to the 45 degree angle, if there’s a quiver in the eye, that’s a point; if there’s not, then there’s no point, and when you get to the furthest point, again, if there’s a moving or a jumping of the eyeball, that’s a point. If there’s no movement, then there isn’t. According to the officer, a person can receive a score as high as six on the test, and the higher the score, the more likely it is that the individual is intoxicated. The officer stated that a score of more than four indicates that an individual is intoxicated; a score of four indicates a borderline case.

The officer then stated that appellant received a score of five or six on the test. No chemical tests were performed. Officer Rossiter was the only witness that testified for the State. Appellant testified that he had had nothing to drink that day.

On that day, he had flown home from Florida. He testified that he had stopped off at a tavern he owns and operates on his way home for about one-half hour, but had nothing to drink. He indicated that his truck might have exhibited the smell of alcohol because he sometimes uses it to haul empty alcoholic beverage containers. He also indicated that his difficulty in some of the sobriety tests might have been attributable to an injury that he suffered to his knees several years earlier.

The injury causes stiffness when sitting for extended periods of time, as was the case on the day in question. Appellant’s nephew and a friend of his also testified on behalf of appellant. They both stated that they had been with him since about 3:00 p.m. that day, as they were flying back ¹⁴⁹ from Florida together. They stated that they did not observe appellant drink any alcohol.

They drove with him from Baltimore-Washington International Airport and accompanied him into the tavern that he owns. They admitted that, once they went into the tavern, they socialized with other patrons and could not be sure that he did not have anything alcoholic to drink at the tavern, but they did not observe him doing so. The waitress who was working at the tavern that night stated that appellant only had a ginger ale to drink while he was there. Appellant’s son picked him up at the police station and stated that he could not detect any alcohol on appellant’s breath or any other signs of drinking.

Appellant’s wife was waiting for him when he returned home and she, too, testified that she was unable to detect any alcohol on his breath or any other signs that he had been drinking. Horizontal Gaze Nystagmus We first acknowledge that the HGN test, when used to detect the presence of alcohol in a person’s system, has been the subject of attack, usually with respect to the qualifications of officers who administer the test. It has been noted that: One of the test’s shortcomings is that the officer administering the test may not be properly trained to understand all aspects of the test and to produce results as accurately as the NHTSA manual suggests.... ... To demonstrate a proper foundation, an officer must show that he is trained in the particular procedure, that he is certified in the administration of the procedure, and that the procedure was properly administered. [Footnotes omitted.] Stephanie E. Busloff, Note Can Your Eyes Be Used Against You?

The Use of the Horizontal Gaze Nystagmus Test in the Courtroom, 84 J.Crim.L. & Criminology 216-33 (1993). See also Jonathan D. Cowan & Susannah G. Jaffee, Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication, 9 Am.Jur. Proof of Facts 3d 459 (1990); Lawrence Taylor, Drunk Driving Defense, ¹⁵⁰ § 4.4.5 (3d ed. Supp.1994); Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur.

Proof of Facts 3d 439 (1989); F.R. Irwin, Defense of Drunk Driving Cases (3d ed. 1985). See also State v. Superior Court, 718 P.2d 17 (1986) (appendices A and B); 2 Donald H. Nichols, Drinking/Driving Lit., § 24.09 (1995). These requirements are faulty in one respect: the level of competency among the officers who administer the test is wide-ranging. The NHTSA manual defines the “well-trained technician” as an individual who studies and properly adheres to the NHTSA.manuals.

In all probability, not every officer would meet this standard. Therefore, this comment suggests that certification for administering the HGN test should not only guarantee that the officer will know how to administer the test and know what to look for, but that the officer will know that there are many other causes of HGN other than alcohol. The officer then could at least make a simple connection between alcohol and the effects on eye movement. With such knowledge, the officer could be required to question a suspect about his or her medical condition before administering the HGN test.

The officer could carry a check-off card with relevant information to remember the requisite steps. Such an approach would be inexpensive and easy to implement. Id. at 234 (footnotes omitted). Appellant alleges in his brief, first, that HGN testing is scientific in nature and, thus, the trial court erred in concluding that it was not and admitting it without a proper foundation having been laid under the Frye/Reed (Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978)) standard.

Appellant also alleges that, in any event, a proper foundation as to the qualifications of the officer was not laid below and, thus, his testimony as to the HGN test should not have been permitted over appellant’s objection. We agree that the Horizontal Gaze Nystagmus test is scientific in nature and depends, for its admissibility, upon ¹⁵¹ satisfactory proof of its reliability and its acceptance in the relevant scientific and medical communities. Because we shall, however, take judicial notice of its reliability and its acceptance in those communities, we shall not reverse the trial court on the grounds that a foundation for the admissibility of the test itself was not laid. We shall hereafter hold that the results of HGN testing are admissible in evidence in the courts of this State, provided the administrator of the test is duly qualified and the testing procedure is conducted properly.

But, we shall reverse appellant’s convictions on the alcohol-related offenses because, under the circumstances of this case, the record does not reflect that the officer was in fact properly trained or certified to administer the test. We explain. The majority of foreign jurisdictions that have addressed the issue have held that the test for HGN is a scientific test. Most of those few states that have held that it is not a scientific test opine that its admissibility depends upon a lesser standard because it is a mere field test and, thus, is admissible without a scientific foundation. 2 Thus, in both the states holding that the HGN test is a scientific test (the majority) and those states holding that it is only a field test, it is, nevertheless, admissible so long as certain predicates are satisfied.

One such case, which held that the HGN test is not a scientific test and is admissible based upon a lower standard, is State v. Sullivan, 310 S.C. 311 , 426 S.E.2d 766 (1993). There, the trial court, according to the Supreme Court of South Carolina, had ruled HGN testing inadmissible, expressing skepticism regarding HGN tests and not[ing] that nystagmus may be caused by physiological forces other than alcohol consumption. Additionally, the circuit court related ¹⁵² reservations about police officers conducting and interpreting a medical/scientific test. Id., 426 S.E.2d at 769 (footnote omitted).

In reversing the trial court, the Sullivan court equated HGN tests with field tests and held that such results were “admissible when the HGN test ... [is] used to elicit objective manifestations of soberness or insobriety----■ HGN tests shall not constitute evidence to establish a specific degree of blood alcohol content.” Id. (citation omitted). HGN as Scientific Evidence Appellant contends that the trial court erred in admitting into evidence the results of the HGN test because the State failed to lay a foundation pursuant to Reed v. State, supra, 283 Md. 374 , 391 A.2d 364 , that this test was based on well-recognized scientific principles so as to have gained general acceptance in the particular field to which it belongs. In Reed , the Court of Appeals stated: [W]ith particular regard to expert testimony based on the application of new scientific techniques, it is recognized that prior to the admission of such testimony, it must be established that the particular scientific method is itself reliable.

People v. Kelly, 17 Cal.3d 24 , 130 Cal.Rptr. 144 , 549 P.2d 1240 (1976); Jones, Danger—Voiceprints Ahead, 11 Am. Crim.L.Rev. 549, 554 (1973). See also Shanks v. State, 185 Md. 437, 440 , 45 A.2d 85 (1945); 3 Wigmore, Evidence § 795 (Chadbourn rev. 1970). On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability.

Such is commonly the case today with regard to ballistics tests, fingerprint identification, blood tests, and the like. See Shanks v. State, supra, 185 Md. at 440 [ 45 A.2d 85 ]. Similarly, a trial court might take judicial notice of the invalidity or unreliability of procedures widely recognized in the scientific community as bogus or experimental. However, if the reliability of a particular ¹⁵³ technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence.

Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular procéss has achieved. People v. Law, 40 Cal.App.3d 69, 75 , 114 Cal.Rptr. 708, 711 (1974). The question of the reliability of a scientific technique or process is unlike the question, for example, of the helpfulness of particular expert testimony to the trier of facts in a specific case. The answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case.

It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge’s individual discretion. Instead, considerations of uniformity and consistency of decision-making require that a legal standard or test be articulated by which the reliability of a process may be established. The test which has gained general acceptance throughout the United States for establishing the reliability of such scientific methods was first articulated in the leading case of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)[ 3 ]: ¹⁵⁴ “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.” (Emphasis supplied.) That is to say, before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as rehable within the expert’s particular scientific field.

Thus, according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence. Id. at 380-81, 391 A.2d 364 . In a jurisdiction in which it was held that the HGN test was subject to the Frye standard of admissibility, it was noted that Frye required the State to satisfy a three-prong test prior to the admission of HGN evidence: 1) that the underlying scientific theory is rehable, i.e., that nystagmus is an indicator of alcohol consumption; 2) that the method used to test for HGN is accepted by scientists familiar with the phenomenon and test; and 3) that the particular officer involved has been trained to follow, and did follow, the procedures estabhshed by the scientists. State v. Witte, 251 Kan. 313 , 836 P.2d 1110, 1117 (1992).

At trial, in the case sub judice, the State did not lay any foundation as to the first two prongs of the test prior to Officer Rossiter’s testimony. The State, however, contends that the HGN test is not scientific evidence at ah, citing ¹⁵⁵ Crampton v. State, 71 Md.App. 375 , 525 A.2d 1087 (1987), aff'd, 314 Md. 265 , 550 A.2d 693 (1988). In Crampton , this Court addressed whether the Frye/Reed standard applied to some of the same sobriety tests to which appellant was subjected in this case (excluding the HGN test). The field tests performed in Crampton are known commonly as reciting the alphabet, standing on one leg, heel to toe walking, and the finger to nose test.

We stated there: The Frye-Reed test is not, however, applicable to the case sub judice. Unlike the techniques employed in the above-cited cases, field sobriety tests are essentially personal observations of a police officer which determine a suspect’s balance and ability to speak with recollection. There is nothing “new” or perhaps even “scientific” about the exercises that an officer requests a suspect to perform. Those sobriety tests have been approved by the National Highway Traffic Safety Administration and are simply guidelines for police officers to utilize in order to observe more precisely a suspect’s coordination.

It requires no particular scientific skill or training for a police officer, or any other competent person, to ascertain whether someone performing simple tasks is to a degree affected by alcohol. The field sobriety tests are designed to reveal objective information about a driver’s coordination. See People v. Ramirez, 199 Colo. 367 , 609 P.2d 616, 620 (1980). The Frye-Reed test does not apply to those field sobriety tests because the latter are essentially empirical observations, involving no controversial, new, or “scientific” technique.

Their use is guided by practical experience, not theory. Id. at 388 , 525 A.2d 1087 . We have noted that the HGN test is also a field sobriety test. Field sobriety tests are tests of sobriety conducted in the field.

HGN certainly meets that definition. We acknowledge that the NHTSA has described the HGN test as “the first and most valid test in the standardized field sobriety testing battery,” and that the United States Supreme Court ¹⁵⁶ referred to this test as a “standard field sobriety test[ ]” in Pennsylvania v. Muniz, 496 U.S. 582, 585 , 110 S.Ct. 2638, 2641 , 110 L.Ed.2d 528 (1990). The HGN test is, nonetheless, a scientific test, in that the fact that one’s eye may jerk or quiver more when one is intoxicated is not universally known. Alcohol has been known to mankind since the dawn of civilization.

It was probably not long after that it was recognized that alcohol affects one’s balance, coordination, and ability to recollect. 4 The HGN test, however, does not test a suspect’s coordination or ability to recollect. It is based upon a scientific principle that the extent and manner in which one’s eye quivers can be a reliable measure of the amount of alcohol one has consumed. Nor does the mere fact that an officer may physically observe the jerking of a suspect’s eyeballs without the aid of a machine make this test any less scientific. 1 McCormick on Evidence (John W. Strong et al. 4th ed. 1992) § 206B states: It is said that more than 4,000 yéars ago the Chinese would try the accused in the presence of a physician who, listening or feeling for a change in the heartbeat, would announce whether the accused was testifying truthfully. The modern “lie detectors” operate on the same general principle. [Footnotes omitted.] It is the premise underlying lie detectors, i.e., that a physiological change is an accurate indication that a suspect is lying, that has failed to gain general acceptance in the scientific ¹⁵⁷ community, not the ability to measure the physiological change. 5 The principle underlying the HGN test, i.e., that it is an accurate measure of the intoxication of a suspect, is a scientific principle.

The admissibility of the results of HGN testing has been challenged in some foreign jurisdictions for failing to satisfy the Frye standard (or the standard adopted by that jurisdiction for determining the admissibility of scientific evidence). A relatively important early case in which the test was challenged and the results were ruled admissible as evidence of the presence of alcohol was State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171 (1986). (Dennis L. Lusk, Horizontal Gaze Nystagmus, 23 Arizona Bar Journal (December/January 1988)), states that Arizona was the “first state to ... approve ... ‘HGN’.... ” (Citing Superior Court) See also the American Bar Association’s Standardized Field Sobriety Testing Video Tape prepared for the American Bar Association by the Northwestern University Traffic Institute). The Arizona Supreme Court stated in Superior Court: The HGN test is a different type of test from balancing on one leg or walking a straight line because it rests almost entirely upon an assertion of scientific legitimacy rather than a basis of common knowledge.

Different rules therefore apply to determine its admissibility.[ 6 ] Id., 149 Ariz. at 276 , 718 P.2d at 178. In Superior Court, a scientific foundation, which satisfied the Frye standard, was ¹⁵⁸ presented at trial. Thus, the court there was able to determine that the test conducted did satisfy Frye principles. 7 Nevertheless, it held that the test could only be used for the limited purpose of challenging or supporting a chemical test. It was not then considered by the Arizona court sufficient, by itself, to be a basis for a conviction under a statutory provision requiring a chemical test for a conviction.

The court noted several “due process” concerns with the test, if it were to be used by itself to sustain a conviction: The ... “reading” of the HGN test cannot be verified or duplicated by an independent party. The test’s recognized margin of error provides problems as to criminal convictions which require proof of guilt beyond a reasonable doubt. The circumstances under which the test is administered at roadside may affect the reliability of the test results. Nystagmus may be caused by conditions other than alcohol intoxication.

And finally, the far more accurate chemical testing devices are readily available. Id., 149 Ariz. at 279 , 718 P.2d at 181 (citation omitted). 8 That early conclusion in Superior Court, i.e., that the HGN test is scientific evidence, represents what we perceive to be the majority position of foreign jurisdictions on that subject. Other opinions concluding that the HGN test is scientific in nature include: Malone v. City of Silverhill, 575 So.2d 101 (Ala.Crim.App.1989) (Alabama’s intermediate appellate court found that the test was scientific and then, adopting the finding of Superior Court, supra, that the test satisfied Frye and that the error in admitting the HGN test into evidence, without a foundation being laid, was harmless.), rev’d in part ¹⁵⁹ sub nom. Ex parte Malone, 575 So.2d 106 (Ala.1990) (Alabama’s Supreme Court reversed, holding that, because it was scientific in nature, the admission of the HGN test without a foundation was not harmless); People v. Leahy, 8 Cal.4th 587 , 34 Cal.Rptr.2d 663 , 882 P.2d 321 (1994); Foster v. State, 204 Ga.App. 632 , 420 S.E.2d 78 (1992) (HGN test required a foundation but the error in failing to lay the foundation was harmless in light of other evidence.); People v. Vega, 145 Ill.App.3d 996 , 99 Ill.Dec. 808 , 496 N.E.2d 501 (1986) (HGN test required a Frye foundation to be laid; later cases determined that the test satisfied Frye and the only foundation that was required was that the officer was trained to administer the test and did so properly, see People v. Buening, 229 Ill.App.3d 538 , 170 Ill.Dec. 542 , 592 N.E.2d 1222 , cert. denied, 146 Ill.2d 634 , 176 Ill.Dec. 806 , 602 N.E.2d 460 (1992).); State v. Witte, supra; State v. Armstrong, 561 So.2d 883, 887 (La.App. 2 Cir.), writ denied, 568 So.2d 1077 (La.1990) (Frye standard was satisfied, taking the approach that Illinois courts later adopted.); State v. Klawitter, 518 N.W.2d 577, 584 (Minn.1994) (The court held that HGN test was not an “emerging scientific teehnique[ ],” but is “ ‘scientific’ in the sense we use the term,” and then found that the test satisfied Frye.); State v. Wheeler, 764 S.W.2d 523 (Mo.App.1989); State v. Clark, 234 Mont. 222 , 762 P.2d 853 (1988) (Frye standard was not used and HGN test was determined to be admissible, but the court indicated that scientific and expert testimony was needed to lay a proper foundation.); State v. Borchardt, 224 Neb. 47 , 395 N.W.2d 551 (1986); State v. Reed, 83 Or.App. 451 , 732 P.2d 66, 68 (1987) (“[TJhe HGN test draws its convincing force from a scientific principle that consumption of alcohol causes nystagmus.

The difference between the HGN test and other, more common, field sobriety tests is that certain reactions to alcohol are so common that we take judicial notice of them.” (footnote omitted)); Commonwealth v. Miller, 367 Pa.Super. 359 , 532 A.2d 1186, 1189 (1987) (“Results of the HGN test are ... scientific evidence based on the scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test.”); Emerson v. ¹⁶⁰ State, 880 S.W.2d 759 (Tex.Cr.App. en banc), cert. denied, — U.S. —, 115 S.Ct. 323 , 130 L.Ed.2d 284 (1994) (The court held that the HGN test was novel scientific evidence and then took judicial notice of the test’s reliability. Previous Texas opinions had indicated that the test was not scientific. See Lancaster v. State, 772 S.W.2d 137 (Tex.App.—Tyler 1988).); State v. Cissne, 72 Wash.App. 677 , 865 P.2d 564 , 568 (Div.3), petition for review denied, 124 Wash.2d 1006 , 877 P.2d 1288 (1994) (“Many jurisdictions, perhaps a majority, have concluded that HGN testing is based on scientific principles---- We join these jurisdictions that recognize that HGN testing rests on an assertion of scientific legitimacy.”); and State v. Barker, 179 W.Va. 194 , 366 S.E.2d 642 (1988). We shall further discuss many of these cases, infra, in our discussion of judicial notice.

Some jurisdictions, however, including Ohio, have held that the HGN test is not scientific evidence. In State v. Nagel, 30 Ohio App.3d 80 , 506 N.E.2d 285, 286 (1986), the court stated: It is not comparable ... to a polygraph test which requires the use of a machine, the scientific reliability of which may be questioned. The ... test, as do the other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation.

See also State v. Bresson, 51 Ohio St.3d 123 , 554 N.E.2d 1330, 1334-36 (1990) (The Frye test was not used. “We find that the HGN test has been shown to be a rehable indicator of BAC levels.... The admission of the results of the HGN test is no different from any other field sobriety test....”). Bresson and Nagel , like most of the other cases that maintain that HGN tests are not scientific tests, accepted a lesser standard for admissibility than the Frye standard. We shall discuss Bresson and other cases at more length, infra. 9 ¹⁶¹ We do not find those cases that have held that the HGN test is not scientific to be persuasive.

We note that the Frye standard was not in use in some of those jurisdictions. In addition, as previously indicated, unlike the Ohio court in Nagel , we do not find that the use of a machine, or lack thereof, is a useful indicator of whether evidence is scientific in nature. The Supreme Court of Kansas in Witte, 836 P.2d at 1116 , noted that the Nagel decision had been subject to criticism: “The Ohio appellate court has apparently ignored the rule that the arresting officer’s ‘personal observations,’ in this instance, constitute opinion testimony. That is, the officer’s opinion (that the jerking and twitching of the suspect’s eyes during the gaze nystagmus test indicated that the suspect had consumed alcohol) is an opinion which is based upon a so-called ‘scientific’ interpretation of observed facts which exist outside the common knowledge of the average lay person and therefore would require the testimony of an expert.

The court also ignored the significance of the fact that the horizontal gaze nystagmus test draws its convincing force from the supposed scientific principle that alcohol affects the smooth pursuit mechanism of the human eye. It is clear that the horizontal gaze nystagmus test is scientific in nature, as are other numerous reflex response tests (such as Babinski’s reflex,[ 10 ] which does not require the use of a ¹⁶² machine to administer, monitor or interpret).” Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am Jur. Proof of Facts 3d 439 § 10, p. 458 (1989). The court in Witte concluded that the HGN test was scientific evidence, stating: “Alcohol’s effect on a person’s sense of balance is common knowledge.

The same cannot be said for HGN. The HGN test is based upon scientific principles and exceeds common knowledge.” Id. The Witte court, while noting that the authorities were not unanimous that the test was rehable, remanded that case back to the trial court for a determination of whether the test was sufficiently reliable and whether it was generally (not unanimously) acceptable in the scientific community. In holding HGN was a scientific test, the California Supreme Court in People v. Leahy, supra, noted: First, we should make clear that “general acceptance” does not require unanimity, a consensus of opinion, or even majority support by the scientific community---- In determining whether a scientific technique is “new” ... long standing use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians.

Id., 34 Cal.Rptr.2d at 671-74 , 882 P.2d at 329-32 . In Leahy , the State argued that HGN testing was not a scientific test, but merely a road test. The California court rejected the State’s position, holding that it is in fact a scientific test. After listing states that had accepted HGN testing as valid scientific tests, the court went on to note: The foregoing decisions, however, do not explain how police officers are competent to establish general acceptance of HGN testing in the scientific community, or how they are qualified to relate the scientific bases underlying the nystagmus test. [Some emphasis added.] ¹⁶³ Id., 34 Cal.Rptr.2d at 676 , 882 P.2d at 334 .

The court, quoting from People v. Williams, 3 Cal.App.4th 1326 , 5 Cal.Rptr.2d 130 (1992), then noted: “... Being qualified to attribute the observed eye movements to a particular cause, however, is a far different matter.... Vega’s [the police officer’s] opinion that appellant was under the influence of alcohol, to the extent it was based on the nystagmus test, rests on scientific premises well beyond his knowledge, training, or education. Without some understanding of the processes by which alcohol ingestion produces nystagmus, how strong the correlation is, how other possible causes might be masked, what margin of error has been shown in statistical surveys, and a host of other relevant factors, Vega’s opinion on causation, notwithstanding his ability to recognize the symptom, was unfounded.

It should have been excluded.” Id. The California court then opined that “testimony by police officers regarding the mere administra,lion of the test is insufficient to meet the general acceptance standard required by Kelly.” (People v. Kelly, 130 Cal.Rptr. 144 , 549 P.2d 1240 , is the California equivalent of Maryland’s Reed v. State, supra, 283 Md. 374 , 391 A.2d 364 .) (As we shall hereafter take judicial notice of the reliability and acceptability in the relevant communities of HGN testing generally, the Leahy court’s (and the Williams court’s) holding that officers cannot generally establish the foundational scientific reliability of the test will not be of direct importance to our subsequent determination.) Pennsylvania courts have noted that scientific evidence is “evidence that draws its convincing force from some principle of science, mathematics and the like.” Commonwealth v. Miller, 367 Pa.Super. 359 , 532 A.2d 1186, 1188 (1987). The Miller court noted that a proper Frye foundation must be laid before such evidence may be admitted. “[T]he rationale for subjecting motorists suspected of driving under the influence of alcohol to the HGN test derives from the scientific principle that consumption of alcohol causes nystagmus.” Id., 532 A.2d ¹⁶⁴ at 1189 . In Commonwealth v. Apollo, 412 Pa.Super. 453 , 603 A.2d 1023 , alloc. denied, 531 Pa. 650 , 613 A.2d 556 (1992), the Pennsylvania court again confirmed that a proper foundation must be laid before HGN test results may be admitted in the courts of that state.

In Apollo , the State attempted to lay a Frye foundation by introducing the testimony of a single expert, an optometrist who was also a certified instructor in respect to HGN testing. The court, in holding that a proper foundation had not been laid, noted: Dr. Sisson conducted his own study of the incidence of gaze nystagmus in “sober” persons. His study indicated that approximately one in five hundred sober patients would fail the HGN test, in contrast to national studies which have estimated a failure rate of two to four percent in a similar population. Dr. Sisson testified that he was aware of no studies evaluating the reliability of the HGN test that have reached any conclusion other than that it is the most accurate field sobriety test available.

Id., 603 A.2d at 1027 . See also Commonwealth v. Moore, 430 Pa.Super. 575 , 635 A.2d 625 (1993). We join the states of Arizona, Alabama, California, Georgia, Illinois, Kansas, Louisiana, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oregon, Pennsylvania, Texas, Washington, and West Virginia 11 and hold that HGN is a scientific test. In so holding, we note our awareness that the courts in Ohio, Arkansas, Iowa, and South Carolina—the only states that we are aware of that have held that the HGN test is not scientific because it is merely a “field test,” have deemed the test results admissible without requiring a foundation.

We shall further hold, however, that the results of HGN tests are, nevertheless, admissible in the trial courts of this State without further reference to the Frye/Reed standard. We take judicial notice of the reliability and acceptance of the ¹⁶⁵ HGN test. We perceive that the studies, scientific articles, foreign cases, and other literature on the subject that we have reviewed reveal that most courts and scientific authorities have held the tests reliable if properly administered. The cases also reveal a general trend in admissibility determinations towards emphasizing the qualifications of the person administering the test.

That evolution of emphasis from the scientific framework of the test itself to the qualifications of those who administer it is where we feel the focus should now be. We address judicial notice first, and then the matter of the officer’s qualifications, both generally and specifically. Judicial Notice In Faya v. Almaraz, 329 Md. 435, 444-47 , 620 A.2d 327 (1993), the Court of Appeals held: [I]n order to place a complaint in context, we may take judicial notice of additional facts that are either matters of common knowledge or capable of certain verification. Included in the latter category are facts “capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute.” In the medical context we have relied, for example, on basic information about sexually transmitted diseases as found in medical journals and reports of the Centers for Disease Control.

See B.N. v. K.K, 312 Md. 135, 139-40 , 538 A.2d 1175 (1988) (genital herpes is a contagious, painful, and incurable disease, spread by sexual contact, that endangers public health). The Maryland Court of Special Appeals has relied on similar sources to assess the need for precautions against AIDS transmission.... Before examining the legal sufficiency of the appellants’ complaints, therefore, we focus on several well-established and scientifically understood facts about AIDS and its transmission .... These characteristics of HIV and AIDS, which the lower court also recognized, are proper objects of judicial notice.

We, therefore, reject the appellants’ threshold contention that the court below ... erroneously adopted ... informa ¹⁶⁶ tion that [was] properly the subject of expert testimony, open to challenge at trial____ These facts derive from reputable scientific journals and institutions and are well-accepted within the medical community. [Citations and footnotes omitted.] See also B.N. v. K.K, 312 Md. 135, 139-40 , 538 A.2d 1175 (1988), taking judicial notice that “[g]enital herpes is ... contagious, painful, and incurable ... spread by sexual contact. It is an infectious disease that endangers public health.” (Footnotes omitted.); Keene Corp. v. Hall, 96 Md.App. 644, 660 , 626 A.2d 997 , cert. granted, 332 Md. 741 , 633 A.2d 102 (1993), an asbestos case, in which we held the Frye/Reed standard had not been met in respect to the test there at issue, but took “judicial notice that inanimate material and tissue from human beings have different properties.” We took notice of certain medical and scientific facts in regard to the wearing of gloves by court personnel dealing with defendants believed to have AIDS in Wiggins v. State, 76 Md.App. 188, 198 , 544 A.2d 8 (1988), rev’d on other grounds, 315 Md. 232 , 554 A.2d 356 (1989), though we made no formal announcement that we were taking judicial notice of those scientific facts. Judge Getty for this Court, in one of the first cases involving genetic marker blood testing, Haines v. Shanholtz, 57 Md.App. 92, 97-100 , 468 A.2d 1365 , cert. denied, 300 Md. 90 , 475 A.2d 1201 (1984), discussed in depth Reed v. State, supra. He stated that unlike Frye, Reed has survived Daubert, supra.

He noted that the issue in Reed (voice prints) was not, at the time of that case, generally