HGN test in Missouri

2018Defendant's point challenges the adequacy of the foundation for admission of the HGN test results. 6 "The foundation to admit HGN results is twofold: (1) the officer was adequately trained (eight or more hours) to perform and interpret the test; and (2) the test was properly administered." State v. Johnson , 488 S.W.3d 770 , 771 (Mo. App. S.D. 2016). "[A]dequate training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test." State v. Hill , 865 S.W.2d 702 , 704 (Mo. App. W.D. 1993). 7 As set forth in Hill , proper administration of the HGN tes

2018Defendant's point challenges the adequacy of the foundation for admission of the HGN test results. 6 "The foundation to admit HGN results is twofold: (1) the officer was adequately trained (eight or more hours) to perform and interpret the test; and (2) the test was properly administered." State v. Johnson , 488 S.W.3d 770 , 771 (Mo. App. S.D. 2016). "[A]dequate training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test." State v. Hill , 865 S.W.2d 702 , 704 (Mo. App. W.D. 1993). 7 As set forth in Hill , proper administration of the HGN tes

2020After reviewing the officer’s testimony, we held that an adequate foundation to admit the test had been laid based upon Rose, 86 S.W.3d at 98-99 (setting out the requisite steps involved in the proper administration of an HGN test).

2020After reviewing the officer’s testimony, we held that an adequate foundation to admit the test had been laid based upon Rose, 86 S.W.3d at 98-99 (setting out the requisite steps involved in the proper administration of an HGN test).

2018To admit the HGN test into evidence the State must show "(1) the officer was adequately trained to administer the test and render an opinion; and (2) the test was properly administered." 4 State v. Burks , 373 S.W.3d 1 , 6 (Mo. App. S.D. 2012).

2018To admit the HGN test into evidence the State must show "(1) the officer was adequately trained to administer the test and render an opinion; and (2) the test was properly administered." 4 State v. Burks , 373 S.W.3d 1 , 6 (Mo. App. S.D. 2012).

2015In Duffy , the officer’s testimony indicated that he did not know how to score the HGN test. 966 S.W.2d at 378 .

2015In Duffy , the officer’s testimony indicated that he did not know how to score the HGN test. 966 S.W.2d at 378 .

2011W.D.1993), overruled, on other grounds by State v. Carson, 941 S.W.2d 518, 523 (Mo. banc 1997), we held that “when properly administered by adequately trained personnel, the HGN test is admissible as evidence of intoxication.” 9 Hill described the training and administration required: [Ajdequate training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test.

2011W.D.1993), overruled, on other grounds by State v. Carson, 941 S.W.2d 518, 523 (Mo. banc 1997), we held that “when properly administered by adequately trained personnel, the HGN test is admissible as evidence of intoxication.” 9 Hill described the training and administration required: [Ajdequate training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test.

2002Thus, in accordance with Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), HGN evidence may be admitted into evidence without first obtaining expert testimony regarding the HGN test’s scientific validity, provided that an appropriate foundation is laid.

2002Thus, in accordance with Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), HGN evidence may be admitted into evidence without first obtaining expert testimony regarding the HGN test’s scientific validity, provided that an appropriate foundation is laid.

2022"If any one of the SFST elements is changed, the validity [of the results] may be compromised." Id. 9 The first test performed was the HGN test.

2022"If any one of the SFST elements is changed, the validity [of the results] may be compromised." Id. 9 The first test performed was the HGN test.

2007Rose, 86 S.W.3d at 104 (admission of officer’s opinion regarding HGN test was harmless error where other evidence of defendant’s intoxication was overwhelming; including commission of traffic violation, odor of alcohol on breath, glassy eyes, officer’s opinion defendant failed all three field sobriety tests, defendant’s admission he “had two beers” after previous denial of drinking, and refusal to take breath test); State v. Adams, 163 S.W.3d 35, 37 (Mo.App.2005) (physical observations of defendant indicating intoxication, including bloodshot and watery eyes, odor of intoxicants and poor perfo

2002We find that when properly administered by adequately trained personnel, the HGN test is admissible as evidence of intoxication.” That conclusion was reaffirmed in State v. Myers, 940 S.W.2d 64 (Mo.App.1997).

2002See Parrish, 11 S.W.3d at 654-55 (holding that, in a license revocation proceeding, upon the driver’s refusal to submit to a chemical test of her breath, the arresting officer had reasonable grounds to arrest the driver for driving while intoxicated, noting in particular that the driver’s score of six points on an HGN test was “clearly indicative of intoxication”) (citing Hill, 865 S.W.2d at 704 ).

2002See Parrish, 11 S.W.3d at 654-55 (holding that, in a license revocation proceeding, upon the driver’s refusal to submit to a chemical test of her breath, the arresting officer had reasonable grounds to arrest the driver for driving while intoxicated, noting in particular that the driver’s score of six points on an HGN test was “clearly indicative of intoxication”) (citing Hill, 865 S.W.2d at 704 ).

2020State v. Mignone, 411 S.W.3d 361, 363 (Mo. App. W.D. 2013).

2020State v. Mignone, 411 S.W.3d 361, 363 (Mo. App. W.D. 2013).

2015"In Missouri, however, proper administration of the HGN test is a foundational requirement under Hill." Id. (citing Duffy v. Director of Revenue, 966 S.W.2d 372, 379 (Mo. App. W.D. 1998)).

2015"In Missouri, however, proper administration of the HGN test is a foundational requirement under Hill." Id. (citing Duffy v. Director of Revenue, 966 S.W.2d 372, 379 (Mo. App. W.D. 1998)).

2015Hill, 865 S.W.2d at 704 (emphasis added); State v. Ostdiek, 351 S.W.3d 758, 771 (Mo.App.W.D.2011). ”[A]d-equate training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test.” Hill, 865 S.W.2d at 704 ; State v. Fose, 86 S.W.3d 90, 98 (Mo.App.W.D.2002).

2015Hill, 865 S.W.2d at 704 (emphasis added); State v. Ostdiek, 351 S.W.3d 758, 771 (Mo.App.W.D.2011). ”[A]d-equate training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test.” Hill, 865 S.W.2d at 704 ; State v. Fose, 86 S.W.3d 90, 98 (Mo.App.W.D.2002).

2024State v. Yarbrough, 332 S.W.3d 882, 884-85, 887 (Mo. App. S.D. 2011) (no plain error from officer’s testimony that PBT was positive for alcohol when that reference was “dwarfed” by testimony that defendant had odor of alcohol, slurred speech, and bloodshot eyes, HGN test indicated intoxication, and defendant admitted to drinking).

2024Savick, 347 S.W.3d at 152 (emphasis added).

2024Savick, 347 S.W.3d at 152 (emphasis added).

2018"We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences." State v. Campbell , 122 S.W.3d 736 , 737 (Mo. App. S.D. 2004) ; see State v. Johns , 34 S.W.3d 93 , 103 (Mo. banc 2000).

2018See id.

2017See Edwards , 280 S.W.3d at 189 (evidence sufficient to support DWI conviction where officer smelled moderate odor of alcohol on the defendant, the defendant's speech was slurred, and his eyes were bloodshot and watery, he failed four of six indicators on the HGN test, refused further field sobriety tests, including breath test, and the officer testified that, in his opinion, he believed defendant was impaired).

2017See Edwards , 280 S.W.3d at 189 (evidence sufficient to support DWI conviction where officer smelled moderate odor of alcohol on the defendant, the defendant's speech was slurred, and his eyes were bloodshot and watery, he failed four of six indicators on the HGN test, refused further field sobriety tests, including breath test, and the officer testified that, in his opinion, he believed defendant was impaired).

2017See State v. Tisius , 362 S.W.3d 398 , 407 (Mo. banc 2012) (noting, "[w]e will not review the contention of inadequate foundation raised for the first time on appeal") (citation omitted); State v. Honsinger , 386 S.W.3d 827 , 829 (Mo. App. S.D. 2012), Moreover, the manner in which tests are conducted speaks to the weight of the evidence, which is an issue for the jury, not this Court, to decide.

2017See State v. Tisius , 362 S.W.3d 398 , 407 (Mo. banc 2012) (noting, "[w]e will not review the contention of inadequate foundation raised for the first time on appeal") (citation omitted); State v. Honsinger , 386 S.W.3d 827 , 829 (Mo. App. S.D. 2012), Moreover, the manner in which tests are conducted speaks to the weight of the evidence, which is an issue for the jury, not this Court, to decide.

2016See, e.g., State v. Knifong, 53 S.W.3d 188, 193-94 (Mo.App.2001) (driver’s odor of alcohol, watery and bloodshot eyes, slurred speech, difficulty with field sobriety tests, and refusal to take breathalyzer was evideneé supporting guilt). *773 Postscript — Browning, Burks, and Rose Having touched , upon Broking, we would be remiss not to allay that court’s concern that in Burks , we said HGN test procedure challenges went to the “ ‘weight, rather than to admissibility of the test results.’” See Browning, 458 S.W.3d at 423 , n. 3 (quoting and questioning Burks, 373 S.W.3d at 6-7 ), 429 (Witt, J.

2015We believe, therefore, that consistent with the holdings in Duffy and Rose, material deviations from the testing procedures set forth in the NHTSA Manual will require a trial court to deny admission of HGN test results. 4 Browning's tendered verdict director added as an essential element the jury was required to find that "his ability to drive was impaired." This is not an element of the offense of driving while intoxicated as described in section 577.010.1. 5 Browning sought to define "intoxicated condition" as "under the influence of alcohol." 6 In State v. Schroeder, 330 S.W.3d 468, 475 (Mo

2015We believe, therefore, that consistent with the holdings in Duffy and Rose, material deviations from the testing procedures set forth in the NHTSA Manual will require a trial court to deny admission of HGN test results. 4 Browning's tendered verdict director added as an essential element the jury was required to find that "his ability to drive was impaired." This is not an element of the offense of driving while intoxicated as described in section 577.010.1. 5 Browning sought to define "intoxicated condition" as "under the influence of alcohol." 6 In State v. Schroeder, 330 S.W.3d 468, 475 (Mo

2014State v. Stone, 280 S.W.3d 111, 114 (Mo.App.

2014State v. Stone, 280 S.W.3d 111, 114 (Mo.App.

2014Harvey v. Director of Revenue, 371 S.W.3d 824, 828 (Mo. App. W.D. 2012).11 Thus, under our standard of review, the trial court must be deemed to have found not credible, or entitled to little weight, Corporal Owens' testimony regarding Avent having watery/glassy eyes, her admitting to have consumed four or five beers in the four to five hours preceding her arrest, her having a strong odor of alcohol on her breath, and her exhibiting six clues of intoxication on the HGN test.

2014Harvey v. Director of Revenue, 371 S.W.3d 824, 828 (Mo. App. W.D. 2012).11 Thus, under our standard of review, the trial court must be deemed to have found not credible, or entitled to little weight, Corporal Owens' testimony regarding Avent having watery/glassy eyes, her admitting to have consumed four or five beers in the four to five hours preceding her arrest, her having a strong odor of alcohol on her breath, and her exhibiting six clues of intoxication on the HGN test.

2014State v. Ramires, 152 S.W.3d 385, 397 (Mo. App. W.D. 2004). 5 While not admissible as evidence of BAC, a PBT is admissible as evidence of probable cause to arrest. § 577.021.3. 6 See Flaiz, 182 S.W.3d at 249 (watery eyes are an indicator of intoxication). 7 This test examines a subject‟s eye movements for an involuntary jerking, or nystagmus, which, when the test is performed properly (Avent has not challenged Corporal Owens‟s administration of the HGN test), can be an indicator of intoxication.

2014State v. Ramires, 152 S.W.3d 385, 397 (Mo. App. W.D. 2004). 5 While not admissible as evidence of BAC, a PBT is admissible as evidence of probable cause to arrest. § 577.021.3. 6 See Flaiz, 182 S.W.3d at 249 (watery eyes are an indicator of intoxication). 7 This test examines a subject‟s eye movements for an involuntary jerking, or nystagmus, which, when the test is performed properly (Avent has not challenged Corporal Owens‟s administration of the HGN test), can be an indicator of intoxication.

2014State v. Ramires, 152 S.W.3d 385, 397 (Mo. App. W.D. 2004). 5 While not admissible as evidence of BAC, a PBT is admissible as evidence of probable cause to arrest. § 577.021.3. 6 See Flaiz, 182 S.W.3d at 249 (watery eyes are an indicator of intoxication). 7 This test examines a subject‟s eye movements for an involuntary jerking, or nystagmus, which, when the test is performed properly (Avent has not challenged Corporal Owens‟s administration of the HGN test), can be an indicator of intoxication.

2014State v. Ramires, 152 S.W.3d 385, 397 (Mo. App. W.D. 2004). 5 While not admissible as evidence of BAC, a PBT is admissible as evidence of probable cause to arrest. § 577.021.3. 6 See Flaiz, 182 S.W.3d at 249 (watery eyes are an indicator of intoxication). 7 This test examines a subject‟s eye movements for an involuntary jerking, or nystagmus, which, when the test is performed properly (Avent has not challenged Corporal Owens‟s administration of the HGN test), can be an indicator of intoxication.

2014The State’s reliance on Hollon v. Director of Revenue, 277 S.W.3d 734, 736 (Mo.App.

2014The State’s reliance on Hollon v. Director of Revenue, 277 S.W.3d 734, 736 (Mo.App.