State of Connecticut v. Michael Desautels (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION IN LIMINE

The defendant, Michael Desautels, filed a motion in limine on January 14, 2014, seeking to prohibit the introduction of expert testimony as to the horizontal gaze nystagmus (“HGN”) test administered to the defendant and the introduction of a demonstrative video concerning HGN tests.   The basis for the defendant's motion is that the HGN test is unreliable as it was allegedly administered more than two hours after the defendant's operation of the motor vehicle.   The defendant asserts that an HGN test should be subject to the two-hour rule set forth in General Statutes § 14–227a.¹  The defendant also asserts that the HGN test was administered subsequent to a head injury, and while the defendant was experiencing chest pain and had to be transported to the hospital.   The court heard argument on the defendant's motion and the State's objection thereto on March 12, 2014.   The defendant's motion in limine is denied.   Any challenge to the administration of the test, including the remoteness of the test, pertains to the weight rather than the admissibility of the evidence, and there is no case law to support the defendant's position that an HGN test is subject to the requirements of General Statutes § 14–227a(b).

“The horizontal gaze nystagmus test is one of several field sobriety tests recommended by the National Highway Traffic Safety Administration to assist law enforcement in determining whether the operator of a motor vehicle is under the influence of alcohol.”  State v. Balbi, 89 Conn.App. 567, 570, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005).  “Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in a lateral jerking of the eyeball ․ The premise of the horizontal gaze nystagmus test is that as alcohol consumption increases, the closer to the midline of the nose the onset of nytagmus occurs.   To administer the test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject's eyes.   The stimulus, usually a pen or the officer's finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side.   The officer observes the subject's eyes as [the subject tracks the stimulus.   The officer] looks for six clues, three for each eye, to determine whether the subject passes or fails the test.   The officer looks for (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) the onset of nystagmus at an angle less than forty-five degrees in relation to the center point.   A finding of four clues indicates failure of the test and is a sign of intoxication.”  (Citations omitted;  internal quotation marks omitted.)  Id., 570–71.

Our Appellate Court has determined that the HGN test is scientifically reliable for purposes of admissibility without the necessity of a Porter hearing.  State v. Balbi, supra, 89 Conn.App. 576–80.   However, this does not relieve the State of its burden to “lay a proper foundation with regard to the qualifications of the individual administering the test and demonstrate that the test was conducted in accordance with the generally accepted standards such as those specified in the relevant sections of the National Highway Traffic Safety Administration's manual.”  Id., 577;  see State v. Merritt, 36 Conn.App. 76, 91, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995) (state must satisfy three-part test for admissibility of evidence—satisfy the criteria for admission of scientific evidence;  lay a proper foundation with regard to the qualifications of the individual administering the test;  and demonstrate that the test was conducted in accordance with relevant procedures).

“That there may be, in the particular case, a cause of nystagmus other than alcohol impairment, can be argued on cross-examination of the testifying police officer or elicited through the testimony of the defendant's own expert.   Such a challenge pertains to the weight of the horizontal gaze nystagmus evidence rather than to its admissibility.”  State v. Balbi, supra, 89 Conn.App. 579.  “The same is true of any challenge to the administration of the test.   Numerous courts have concluded that attacks on the administration of the horizontal gaze nystagmus test pertain to the weight rather than to the admissibility of the evidence.”  Id. “Indeed, our Supreme Court stated in Porter that [o]nce the validity of a scientific principle has been satisfactorily established, any remaining questions regarding the manner in which that technique was applied in a particular case is generally an issue of fact that goes to weight, and not admissibility.”  (Emphasis in original;  internal quotation marks omitted.)  Id.;  see State v. Porter, 241 Conn. 57, 88 n.31, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).  “Also, as previously noted, the remaining two prongs of the Merritt test remain intact and require the state to demonstrate that the test was administered in accordance with prevailing standards and by a qualified individual.”  State v. Balbi, supra;  see State v. Merritt, supra, 36 Conn.App. 91.

As our Appellate Court has made clear, any challenge to the administration of an HGN test pertains to the weight rather than the admissibility of the evidence.   Therefore, the defendant's motion in limine is denied.

So ordered.

BY THE COURT,

Marano, J.

FOOTNOTES

FN1. General Statutes § 14–227a(b) provides in relevant part that “evidence respecting the amount of alcohol or drug in the defendant's blood or urine at the time of the alleged offense, as shown by chemical analysis of the defendant's breath, blood or urine shall be admissible and competent provided ․ evidence is presented that the test was commenced within two hours of operation.”   At argument on the defendant's motion in limine, the State argued that the two-hour rule does not apply to the administration of an HGN test, but even if it does, the State plans to introduce evidence, at trial, that the HGN test was administered to the defendant within two hours..  FN1. General Statutes § 14–227a(b) provides in relevant part that “evidence respecting the amount of alcohol or drug in the defendant's blood or urine at the time of the alleged offense, as shown by chemical analysis of the defendant's breath, blood or urine shall be admissible and competent provided ․ evidence is presented that the test was commenced within two hours of operation.”   At argument on the defendant's motion in limine, the State argued that the two-hour rule does not apply to the administration of an HGN test, but even if it does, the State plans to introduce evidence, at trial, that the HGN test was administered to the defendant within two hours.

Marano, Richard M., J.