HGN test in Vermont

2020While Vermont’s DUI statute “is silent with respect to physical sobriety tests such as the HGN,” see id. at 122 , 716 A.2d at 828 , our case law provides that, as with other physical sobriety exercises, an officer may request an HGN test where he or she can “point to specific articulable facts which, taken together with rational inferences from these facts, reasonably warrants the intrusion.” State v. Gray, 150 Vt. 184, 191 , 552 A.2d 1190, 1194 (1988). ¶ 4.

2020While Vermont’s DUI statute “is silent with respect to physical sobriety tests such as the HGN,” see id. at 122 , 716 A.2d at 828 , our case law provides that, as with other physical sobriety exercises, an officer may request an HGN test where he or she can “point to specific articulable facts which, taken together with rational inferences from these facts, reasonably warrants the intrusion.” State v. Gray, 150 Vt. 184, 191 , 552 A.2d 1190, 1194 (1988). ¶ 4.

2022Compare State v. Alzaga, 2019 VT 75, ¶ 7 , 211 Vt. 111 (declining to decide whether trial court erred in admitting HGN evidence under Vermont Rule of Evidence 702 because any error was harmless), and State v. Wilt, 2014 VT 114, ¶ 14 , 198 Vt. 1 (same), with State v. Mara, 2009 VT 96A, ¶ 5, 186 Vt. 389 (noting that trial court found HGN test evidence inadmissible).

2022Compare State v. Alzaga, 2019 VT 75, ¶ 7 , 211 Vt. 111 (declining to decide whether trial court erred in admitting HGN evidence under Vermont Rule of Evidence 702 because any error was harmless), and State v. Wilt, 2014 VT 114, ¶ 14 , 198 Vt. 1 (same), with State v. Mara, 2009 VT 96A, ¶ 5, 186 Vt. 389 (noting that trial court found HGN test evidence inadmissible).

2011As we there explained, “inasmuch as defendant’s refusal to perform the HGN test goes to consciousness of guilt, the refusal evidence is admissible.” Id. at 122 , 716 A.2d at 828 (citation omitted); accord State v. Curavoo, 156 Vt. 72, 75 , 587 A.2d 963, 965 (1991).

2011As we there explained, “inasmuch as defendant’s refusal to perform the HGN test goes to consciousness of guilt, the refusal evidence is admissible.” Id. at 122 , 716 A.2d at 828 (citation omitted); accord State v. Curavoo, 156 Vt. 72, 75 , 587 A.2d 963, 965 (1991).

2022Compare State v. Alzaga, 2019 VT 75, ¶ 7 , 211 Vt. 111 (declining to decide whether trial court erred in admitting HGN evidence under Vermont Rule of Evidence 702 because any error was harmless), and State v. Wilt, 2014 VT 114, ¶ 14 , 198 Vt. 1 (same), with State v. Mara, 2009 VT 96A, ¶ 5, 186 Vt. 389 (noting that trial court found HGN test evidence inadmissible).

2022Compare State v. Alzaga, 2019 VT 75, ¶ 7 , 211 Vt. 111 (declining to decide whether trial court erred in admitting HGN evidence under Vermont Rule of Evidence 702 because any error was harmless), and State v. Wilt, 2014 VT 114, ¶ 14 , 198 Vt. 1 (same), with State v. Mara, 2009 VT 96A, ¶ 5, 186 Vt. 389 (noting that trial court found HGN test evidence inadmissible).

2020Hulse, 1998 MT 108, ¶ 64 ; see, e.g., State v. Garrett, 811 P.2d 488, 490 (Idaho 1991) (looking to decisions from other jurisdictions to support conclusion that HGN evidence is reliable “[b]ecause the reliability of a test based on scientifically tested phenomenon should not vary from jurisdiction to jurisdiction”).

2020Hulse, 1998 MT 108, ¶ 64 ; see, e.g., State v. Garrett, 811 P.2d 488, 490 (Idaho 1991) (looking to decisions from other jurisdictions to support conclusion that HGN evidence is reliable “[b]ecause the reliability of a test based on scientifically tested phenomenon should not vary from jurisdiction to jurisdiction”).

2020Id. at 202-03 ; see also Commonwealth v. Sands, 675 N.E.2d 370, 373 (Mass. 1997) (observing that while “[a] lay juror understands that intoxication leads to diminished balance, coordination, 12 and mental acuity from common experience and knowledge,” testimony of result of HGN test relies on “an underlying assumption” regarding relationship between nystagmus and intoxication which is outside jurors’ experience).

2020Finally, a third line of cases “require HGN test results to be scientifically validated in each individual case, or at least recognized as scientifically valid once by an appellate court within the jurisdiction.” Id. at 706 (quotation omitted); see, e.g., State v. Dahood, 814 A.2d 159, 168 (N.H. 2002) (concluding that HGN test satisfies Daubert and noting, “under the doctrine of stare decisis, our decision today will be binding and, as a result, courts will not be required to establish the scientific reliability of the HGN test . . . in future cases”). ¶ 27.

2020Finally, a third line of cases “require HGN test results to be scientifically validated in each individual case, or at least recognized as scientifically valid once by an appellate court within the jurisdiction.” Id. at 706 (quotation omitted); see, e.g., State v. Dahood, 814 A.2d 159, 168 (N.H. 2002) (concluding that HGN test satisfies Daubert and noting, “under the doctrine of stare decisis, our decision today will be binding and, as a result, courts will not be required to establish the scientific reliability of the HGN test . . . in future cases”). ¶ 27.

2020Id.; see also, e.g., State v. Murphy, 451 N.W.2d 154, 157-158 (Iowa 1990) (concluding that testimony of properly trained police officer was sufficient to admit HGN evidence, despite exam’s “pretentiously scientific name,” because “[t]he ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993) (holding “that evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or insobriety”).

2020Id.; see also, e.g., State v. Murphy, 451 N.W.2d 154, 157-158 (Iowa 1990) (concluding that testimony of properly trained police officer was sufficient to admit HGN evidence, despite exam’s “pretentiously scientific name,” because “[t]he ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993) (holding “that evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or insobriety”).

2020While Vermont’s DUI statute “is silent with respect to physical sobriety tests such as the HGN,” see id. at 122 , 716 A.2d at 828 , our case law provides that, as with other physical sobriety exercises, an officer may request an HGN test where he or she can “point to specific articulable facts which, taken together with rational inferences from these facts, reasonably warrants the intrusion.” State v. Gray, 150 Vt. 184, 191 , 552 A.2d 1190, 1194 (1988). ¶ 4.

2020While Vermont’s DUI statute “is silent with respect to physical sobriety tests such as the HGN,” see id. at 122 , 716 A.2d at 828 , our case law provides that, as with other physical sobriety exercises, an officer may request an HGN test where he or she can “point to specific articulable facts which, taken together with rational inferences from these facts, reasonably warrants the intrusion.” State v. Gray, 150 Vt. 184, 191 , 552 A.2d 1190, 1194 (1988). ¶ 4.

2020Ct. App. 1999) (collecting cases holding that “HGN test results may be admitted as evidence of probable cause to arrest a person for DUI, although not to prove intoxication or that a defendant’s [blood-alcohol content] exceeded a particular percentage”). 11 the conclusions of other courts in other cases, these courts have held the HGN test scientifically reliable as a matter of law.” City of Fargo v. McLaughlin, 512 N.W.2d 700, 705 (N.D. 1994) (collecting cases).

2020Ct. App. 1999) (collecting cases holding that “HGN test results may be admitted as evidence of probable cause to arrest a person for DUI, although not to prove intoxication or that a defendant’s [blood-alcohol content] exceeded a particular percentage”). 11 the conclusions of other courts in other cases, these courts have held the HGN test scientifically reliable as a matter of law.” City of Fargo v. McLaughlin, 512 N.W.2d 700, 705 (N.D. 1994) (collecting cases).

2020People v. Leahy, 882 P.2d 321, 334-35 (Cal. 1994) (in bank) (declining to take judicial notice of decisions and studies concluding that HGN evidence meets the “general acceptance” standard because “the conclusions of those decisions and studies are by no means unchallenged, for there appears to exist substantial opposing authority”); State v. Witte, 836 P.2d 1110, 1121 (Kan. 1992) (“The reliability of the HGN test is not currently a settled proposition in the scientific community.”).

2020People v. Leahy, 882 P.2d 321, 334-35 (Cal. 1994) (in bank) (declining to take judicial notice of decisions and studies concluding that HGN evidence meets the “general acceptance” standard because “the conclusions of those decisions and studies are by no means unchallenged, for there appears to exist substantial opposing authority”); State v. Witte, 836 P.2d 1110, 1121 (Kan. 1992) (“The reliability of the HGN test is not currently a settled proposition in the scientific community.”).

2020People v. Leahy, 882 P.2d 321, 334-35 (Cal. 1994) (in bank) (declining to take judicial notice of decisions and studies concluding that HGN evidence meets the “general acceptance” standard because “the conclusions of those decisions and studies are by no means unchallenged, for there appears to exist substantial opposing authority”); State v. Witte, 836 P.2d 1110, 1121 (Kan. 1992) (“The reliability of the HGN test is not currently a settled proposition in the scientific community.”).

2020People v. Leahy, 882 P.2d 321, 334-35 (Cal. 1994) (in bank) (declining to take judicial notice of decisions and studies concluding that HGN evidence meets the “general acceptance” standard because “the conclusions of those decisions and studies are by no means unchallenged, for there appears to exist substantial opposing authority”); State v. Witte, 836 P.2d 1110, 1121 (Kan. 1992) (“The reliability of the HGN test is not currently a settled proposition in the scientific community.”).

2020Id.; see also, e.g., State v. Murphy, 451 N.W.2d 154, 157-158 (Iowa 1990) (concluding that testimony of properly trained police officer was sufficient to admit HGN evidence, despite exam’s “pretentiously scientific name,” because “[t]he ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993) (holding “that evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or insobriety”).

2020Id.; see also, e.g., State v. Murphy, 451 N.W.2d 154, 157-158 (Iowa 1990) (concluding that testimony of properly trained police officer was sufficient to admit HGN evidence, despite exam’s “pretentiously scientific name,” because “[t]he ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993) (holding “that evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or insobriety”).

2020We agree with the Supreme Court of Tennessee, which explained that the HGN test “differ[s] fundamentally” from other field-sobriety exercises “because the witness must necessarily explain the underlying scientific basis of the test in order for the testimony to be meaningful to a jury.” State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997).

2020We agree with the Supreme Court of Tennessee, which explained that the HGN test “differ[s] fundamentally” from other field-sobriety exercises “because the witness must necessarily explain the underlying scientific basis of the test in order for the testimony to be meaningful to a jury.” State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997).

2019See State v. Ladue, 2017 VT 20, ¶ 10 , 204 Vt. 502 , 168 A.3d 430 (concluding that reference to HGN test was harmless where there was strong evidence of defendant’s impairment and defendant did not challenge impairment and instead focused on his claim that he was not driving vehicle).

2019See State v. Ladue, 2017 VT 20, ¶ 10 , 204 Vt. 502 , 168 A.3d 430 (concluding that reference to HGN test was harmless where there was strong evidence of defendant’s impairment and defendant did not challenge impairment and instead focused on his claim that he was not driving vehicle).

1998See Pennsylvania v. Muniz, 496 U.S. 582, 602 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990) (request to perform HGN test elicits "physical" rather than "testimonial" evidence and thus does not violate privilege against self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983) (refusal to take blood-alcohol test, after police lawfully requested it, is not an act coerced by officer, and thus is not protected by privilege against self-incrimination); State v. Brean, 136 Vt. 147, 151 , 385 A.2d 1085, 1088 (1978) (evidence of refusal to perform blood-alcohol

1998See Pennsylvania v. Muniz, 496 U.S. 582, 602 (1990) (request to perform HGN test elicits “physical” rather than “testimonial” evidence and thus does not violate privilege against self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 (1983) (refusal to take blood-alcohol test, after police lawfully requested it, is not an act coerced by officer, and thus is not protected by privilege against self-incrimination); State v. Brean, 136 Vt. 147, 151 , 385 A.2d 1085, 1088 (1978) (evidence of refusal to perform blood-alcohol test not violative of federal or state privilege against self-incri

1998See Pennsylvania v. Muniz, 496 U.S. 582, 602 (1990) (request to perform HGN test elicits “physical” rather than “testimonial” evidence and thus does not violate privilege against self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 (1983) (refusal to take blood-alcohol test, after police lawfully requested it, is not an act coerced by officer, and thus is not protected by privilege against self-incrimination); State v. Brean, 136 Vt. 147, 151 , 385 A.2d 1085, 1088 (1978) (evidence of refusal to perform blood-alcohol test not violative of federal or state privilege against self-incri

1998See Pennsylvania v. Muniz, 496 U.S. 582, 602 (1990) (request to perform HGN test elicits “physical” rather than “testimonial” evidence and thus does not violate privilege against self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 (1983) (refusal to take blood-alcohol test, after police lawfully requested it, is not an act coerced by officer, and thus is not protected by privilege against self-incrimination); State v. Brean, 136 Vt. 147, 151 , 385 A.2d 1085, 1088 (1978) (evidence of refusal to perform blood-alcohol test not violative of federal or state privilege against self-incri

1998See Pennsylvania v. Muniz, 496 U.S. 582, 602 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990) (request to perform HGN test elicits "physical" rather than "testimonial" evidence and thus does not violate privilege against self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983) (refusal to take blood-alcohol test, after police lawfully requested it, is not an act coerced by officer, and thus is not protected by privilege against self-incrimination); State v. Brean, 136 Vt. 147, 151 , 385 A.2d 1085, 1088 (1978) (evidence of refusal to perform blood-alcohol

1998See Pennsylvania v. Muniz, 496 U.S. 582, 602 (1990) (request to perform HGN test elicits “physical” rather than “testimonial” evidence and thus does not violate privilege against self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 (1983) (refusal to take blood-alcohol test, after police lawfully requested it, is not an act coerced by officer, and thus is not protected by privilege against self-incrimination); State v. Brean, 136 Vt. 147, 151 , 385 A.2d 1085, 1088 (1978) (evidence of refusal to perform blood-alcohol test not violative of federal or state privilege against self-incri