Wilson v. State

HOLLANDER, Judge. Donald Kent Wilson, appellant, was convicted by a jury in the Circuit Court for St. Mary’s County of driving under the influence of alcohol (“DUI”) and making an unsafe lane change. 1 Wilson was sentenced as a second offender to one year of incarceration, with work release. For purposes of sentencing, the court merged the unsafe lane changing conviction with the DUI offense. On appeal, appellant presents two issues: ⁵⁴⁵ I. Did the trial eourt err in permitting the arresting officer to testify that, based on the results of a horizontal gaze nystagmus test, he believed that appellant was “intoxicated” and that his blood alcohol content was “probably point one zero or higher”?

II

Was appellant improperly sentenced as a second offender? We answer the first question in the affirmative. Therefore, we shall reverse the judgment of conviction for the DUI offense only, and remand for further proceedings. In light of our disposition, we need not consider the second issue.

FACTUAL SUMMARY Early on the morning of May 31, 1997, Trooper Roger Redmond was on routine patrol, traveling westbound on Maryland Route 246, near Lexington Park. At approximately 1:30 a.m., a Ford pick-up truck caught the trooper’s attention. The truck, which was traveling westbound on Route 246, was in lane number one, which the trooper also referred to as the left and the fast lane. The truck made an “abrupt jerk to the right,” as if it were changing lanes.

When the truck was partly in lane number two, also referred to as the slow or right lane, it drifted back into the left lane. After that, the truck made another “erratic” lane change into the right lane, without signaling, nearly striking the curb. In describing the movement of the truck, Trooper Redmond said it was “as if to avoid an animal, for example ... very quick, erratic.” Based on his observations, Trooper Redmond determined to follow the truck in his marked patrol vehicle. Without accelerating, the trooper gained on the truck, which was traveling below the posted speed limit.

When Trooper Redmond was within several feet of the truck, it made another erratic lane change into the left lane. In doing so, the truck nearly struck the front of the police car. Trooper Redmond then pulled the truck over to a parking lot and approached the vehicle, which had two occupants. ⁵⁴⁶ Appellant was identified as the driver of the truck. Steven Gingery was the passenger in the vehicle.

Trooper Redmond advised appellant that he stopped the truck because of the erratic lane change and asked him for his license and registration. The trooper noticed that appellant was “very clumsy, very slow with his movements.” Although appellant’s driver’s license was visible in his wallet, appellant “fumbled” and flipped past it. After twenty to thirty seconds, Trooper Redmond pointed out the license to appellant, who “clumsily” removed it. The trooper detected a “very strong” odor of alcohol and asked appellant if he had been drinking.

Appellant did not respond. As appellant stepped out of the truck, however, Trooper Redmond determined that the odor of alcohol was coming from appellant. The trooper acknowledged that although appellant was “very slow with his movements,” he did not “fall over” when he exited his vehicle. Trooper Redmond wanted appellant to perform three field sobriety tests while on the level, paved parking lot.

The first was the horizontal gaze nystagmus (“HGN”) test. The police officer explained that it is used to evaluate certain involuntary, jerking optical movements, indicative of one’s alcohol content. Over objection, Trooper Redmond was qualified as an expert in administering and evaluating the results of the HGN test. The following colloquy is relevant: THE COURT: (At the bench) You are saying he is certified in administering this test.

You need to lay some more foundation as to exactly what you went into as far as — I think he has testified that he is certified in the test. You need to determine whether or not he is certified, that allows him to not only administer the test but to also interpret the results of the test. You need to get into a little bit of that before I allow you to talk about what it means. PROSECUTOR: Okay.

(Open court) ⁵⁴⁷ Officer, let’s back up for a minute to the training you received from the Maryland State Police with regard to the HGN. You were trained to administer the test, correct? REDMOND: Yes, ma’am. PROSECUTOR: And certified to administer it?

REDMOND: Yes, ma’am PROSECUTOR: Were you trained to interpret the results of the test? DEFENSE COUNSEL: I would object. THE COURT: Overruled. REDMOND: Yes, ma’am, we were trained to a certain extent as to how to interpret the results.

We were given an accuracy, a point of accuracy I should say in the interpretation that if there is an nystagmys [sic] present, that the number I believe was between 70 and 80 percent accurate with that test alone, with no other test alone. Horizontal gaze-nystagmys [sic] would be 70 to 80 percent accurate on its own. DEFENSE COUNSEL: I would object and move that that be stricken. THE COURT: Overruled.

PROSECUTOR: Officer, were you — you were taught to interpret these results; is that correct? REDMOND: Yes, ma’am. PROSECUTOR: And in fact you were — did you actually have to perform this test on various subjects who had already been determined, previously determined to be at various levels of intoxication? REDMOND: Yes, ma’am.

PROSECUTOR: In fact, that is what the certification is all about? REDMOND: Yes, ma’am. PROSECUTOR: Tell the jury what it is exactly that you have to do to get certified!.] DEFENSE COUNSEL: Objection. ⁵⁴⁸ THE COURT: Overruled. REDMOND: What we do at the Maryland State Police Academy for this particular part of the course.

There are several summer troopers, some are troopers, some are civilian employees of the state of Maryland. They come to the State Police headquarters where our training is conducted. Each is administered a certain amount of an alcoholic beverage. The alcohol content of their blood is predetermined by such means as PBT’s and other instruments which we use to measure alcohol content of someone’s blood.

We administer these field sobriety tests to these test subjects. We are not told ahead of time what their alcohol level is. We must try to determine whether or not this person is intoxicated based on the field sobriety tests we were taught to administer to them. PROSECUTOR: And is there a certain level of accuracy you have to achieve before you are passed and certified in the testing?

REDMOND: Yes, ma’am, I believe we were one hundred percent accurate in each and every subject. PROSECUTOR: Is that what you had to be to be certified? REDMOND: I’m not sure that you had to be, but I know that I was. DEFENSE COUNSEL: I object and ask that it be stricken.

THE COURT: Overruled. PROSECUTOR: At this time I would like to ask the court to qualify the witness as an expert in the administration of the [HGN] test and the interpretation based on his training in this matter. I would also ask the court to take judicial notice of the scientific reliability of the test as stated in ... Schultz versus State.

THE COURT: Is there any objection? DEFENSE COUNSEL: Yes, Your Honor. ⁵⁴⁹ THE COURT: The court will find that the witness is an expert in the administering and also evaluating the results of the horizontal gaze-nystagmys [sic] test and allow him to give opinions concerning that particular test over objection. PROSECUTOR: Officer, based on your administration, in your training on the area of administrating and evaluating the results of tests, and based on your observations of the defendant’s results in that test that night, do you have an opinion as to some — as to some degree of accuracy of his level of intoxication? REDMOND: Yes, ma’am, I do believe that the defendant was - DEFENSE COUNSEL: I would object.

THE COURT: Overruled. PROSECUTOR: What is that opinion, officer? REDMOND: I believe that he was driving while intoxicated. That his blood alcohol content was probably point one zero or higher.

DEFENSE COUNSEL: I would object and move that it be stricken. THE COURT: Overruled. (Emphasis added). The trooper testified that he performed three separate components of the HGN test.

Using a maglight for illumination, the trooper asked appellant to follow the trooper’s fingertip as it passed left to right in front of appellant’s eyes. According to the trooper, “[t]he eye should be able to follow without any type of erratic movement.” Trooper Redmond claimed that, unlike normal eyes, appellant’s eyes were unable to follow the light without erratic movement. Instead, as appellant’s eyes followed the light, the trooper observed that they were “very jerky and erratic.” The trooper also held the light to appellant’s left side, “approximately 45 degrees from the center line,” and asked appellant to watch his finger. As ⁵⁵⁰ appellant did so, his eyes “were jerking erratically left to right.” Appellant’s eyes “were moving left to right in a jerking fashion.” The trooper “pass[ed] the light, not quite out to the maximum of 45 degree deviation of [appellant’s] eyes, [and] stoptped] just before that.” He detected “[a] nystagmus [i.e., “involuntary jerking”] present in both eyes prior to the maximum 45 degree deviation.” Trooper Redmond also asked appellant to perform the walk and turn test, which the trooper demonstrated for the jury.

Appellant was instructed to walk and count out nine steps on a straight line, then turn around and come back. Appellant indicated he understood, but “mumbled” something “about one of his legs hurting.” Although Trooper Redmond- did not “follow” what appellant said, he did not notice any physical disability. Trooper Redmond further testified that, during this particular test, appellant stepped off the line on each step, took more than nine steps while counting them off as nine, and was unable to keep his' heel and toe together. Nevertheless, Wilson “stayed fairly balanced.” The final test involved standing on one foot.

When Trooper Redmond explained this test to appellant at the scene, Wilson said: “I can’t do that.” Consequently, Trooper Redmond did not administer the test. Based on his experience in administering and evaluating the HGN test and his observations of appellant’s performance, Trooper Redmond opined, over objection, that appellant had been driving while intoxicated and that his blood alcohol content (“BAC”) was “probably point one zero or higher.” Trooper Redmond acknowledged, however, that some prescription medications can cause similar HGN results, and appellant had told the trooper that he was taking a prescription drug for his colon. Further, the trooper testified that, based on his training and experience, along with his observations of appellant’s driving and Wilson’s “personality that evening,” appellant was, in his opinion, driving while intoxicated. ⁵⁵¹ The defense called two witnesses. The passenger, Gingery, testified that he and appellant had been together since 6:00 p.m.

After the two men got together, Gingery asked appellant to stop for beer. Gingery claimed that he had been drinking “continuously” the entire evening, but appellant did not have anything alcoholic to drink. The men were on the way to visit a friend when they were stopped by Redmond. Gingery further testified that shortly before they were stopped by Trooper Redmond, I told Mr. Wilson that we were going to be turning up ahead.

I assumed he thought we would be taking a left hand turn, so he started to make a lane change. I said, no, we will be turning right, so he came back over. That is where the officer was when we were coming back into our lane. Appellant testified that he had not had anything alcoholic to drink that evening.

He attributed his performance on the sobriety tests to several factors: the medication he was taking for two medical conditions, which caused dizziness; a leg injury sustained in an accident, which was not apparent but. which affected his balance; and he was tired, because he had been awake since 4:00 a.m. the previous day. Appellant also testified that he was not familiar with the area where he was stopped and that Gingery, who was directing him, “kept saying it was there, turn, that turn.” In his instructions to the jury, the court closely followed Instruction 4:10 from the Maryland Criminal Pattern Jury Instruction (“MPJI-Cr.”), 2 stating: Now, definitions of the crimes charged in this case. Driving while intoxicated and driving under the influence of alcohol. The defendant is charged with the crime of driving under the influence of alcohol.

In order to convict the defendant, the State must prove beyond a reasonable doubt, ⁵⁵² one, that the defendant drove, operated, moved or was in actual physical control of the vehicle, and, two, at the time the defendant was either intoxicated, or under the influence of alcohol. The distinction between driving while intoxicated and driving under the influence of alcohol is one of degree. A person is under the influence of alcohol when the alcohol that he has consumed has impaired normal coordination, although not amounting to intoxication. Another way of saying this is the person’s acts have been reduced or weakened by the consumption of alcohol.

Intoxication means more than being under the influence of alcohol. A person is intoxicated when the alcohol that he has consumed has substantially impaired normal coordination. We will include additional facts in our discussion. Discussion In his brief, appellant acknowledges that he “does not challenge the trooper’s description of his performance on the HGN test.” Nor does he quarrel with the officer’s qualifications to administer the HGN test.

Instead, appellant complains that the trial court erroneously admitted Trooper Redmond’s testimony quantifying appellant’s blood alcohol content on the basis of the HGN test results. Relying on Schultz v. State, 106 Md.App. 145 , 664 A.2d 60 (1995), and the decisions of other state courts, appellant contends that HGN testing is “admissible to show the presence of alcohol in a defendant,” but it “is not admissible to establish blood alcohol content.” Thus, appellant quarrels with the trooper’s opinion testimony concerning appellant’s “level of intoxication;” the trooper testified: “I believe that ... [appellant’s] blood alcohol content was probably point one zero or higher.” Further, he argues that there was, “at the very least, a reasonable possibility” that Trooper Redmond’s testimony “contributed to the jury’s verdict” of guilty as to the DUI charge. ⁵⁵³ The State counters that the trial court properly admitted the trooper’s testimony under Md. Rule 5-702, 3 which governs expert witnesses. Moreover, it posits that Wilson was not harmed, because the jury acquitted him of driving while intoxicated, which was the charge for which the State introduced the testimony in question. In our view, the court erred in permitting Trooper Redmond to testify that, based on the HGN test results, he believed appellant’s blood alcohol content was “probably point one zero or higher.”