Posted by Edmund R. Folsom, Esq.

June 15, 2018.

Thirteen months ago, State v. Lemunier-Fitzgerald was argued before the Law Court (Darrick Banda, trial attorney, Jamesa Drake, appellate counsel, amicus brief filed by the MACDL).   The issue in the case is whether the so-called “implied consent warnings” that were read to Lemunier-Fitzgerald, informing her that she was suspected of operating under the influence and that if she failed to comply with her duty to submit to a blood test she would receive a mandatory minimum period of incarceration upon conviction for OUI, invalidated her purported consent to a warrantless blood draw.   Lemunier-Fitzgerald presents a Birchfield issue (for a discussion of Birchfield v. North Dakota, see here and here).   Lemunier-Fitzgerald has me waiting, and waiting, and waiting so I can cover the opinion in a revised edition of Maine OUI Law.  After all, the issue is the biggest thing to come along in a while.   Let us wait no more.  As Marvin Gaye famously said, “Let’s Get It On.”

Meanwhile, below is a modified excerpt from the next edition of Maine OUI Law, discussing recent Law Court cases on the foundation for admissibility of horizontal gaze nystagmus  evidence an OUI case.



The Law Court at one point recognized a distinction between police testimony about observations of common indicia of impairment versus testimony about the results of a horizontal gaze nystagmus (HGN) test.  More recently, the Court has at least blurred and has arguably erased that distinction.  Beginning with State v. Taylor, 1997 ME 81, 694 A.2d 907, the Law Court took judicial notice that the HGN test is reliable evidence, “in making determinations of probable cause for arrest and for purposes of establishing criminal guilt in cases involving operating under the influence.”   State v. Taylor, 1997 ME 81, ¶10, 694 A.2d 907.   However, the Court stated, “We agree that the HGN test relies on scientific principles to a greater extent than other common field sobriety tests such as the walk and turn, the one-leg stand, or a recitation of the alphabet.  Therefore the HGN test’s reliability must be established before its results are admissible in evidence in a criminal trial.”  Id. at ¶11.   As to what is required to establish reliability, the Court stated, “The scientific studies, law review articles, and other literature on the subject of HGN testing, as well as the case law, demonstrate that the HGN test is reliable if an officer properly administers it.  We are persuaded by these authorities and conclude that the results of the HGN test should be admissible if a proper foundation is laid for their introduction in evidence.  A proper foundation shall consist of evidence that the officer or administrator of the HGN test is trained in the procedure and the test was properly administered.”  Id. at ¶12.   In Taylor, the officer testified that he was trained to administer the HGN test during a 3-day course at the Maine Criminal Justice Academy and that he had tested hundreds of people in the field.   Id. at ¶¶7, 14.  He also testified his training and experience taught him that 4 or more clues on the HGN test correlates with a 77% chance the person has an alcohol level of .10% or higher, and that he had only seen 1 or 2 people who showed 6 HGN clues who tested below .10%.  Id.   The Law Court found that the trial court committed harmless error in admitting the officer’s testimony, “relating to particular blood alcohol levels.”  Id. at ¶¶14, 15.  The Court stated,  “Because no one can verify the officer’s HGN test reading and because we are cognizant that there are other possible causes of nystagmus, the results of an HGN test are admissible only as evidence supporting probable cause to arrest without a warrant or as circumstantial evidence of intoxication.  The HGN test may not be used by an officer to quantify a particular blood alcohol level in an individual case.” Id. at 13.  After Taylor, it was clear that: (1) the results of HGN tests are admissible in Maine OUI cases; (2) but because HGN tests rely on scientific principles to a greater degree than other common field sobriety tests, their results are to be admitted only if a proper foundation is laid in the particular case; (3) a proper foundation consists of proof that the officer (a) is trained in the procedure and (b) properly administered the test; and (4) when admitted against a defendant at trial, HGN results are admissible only as circumstantial evidence of intoxication, and not as evidence of a particular alcohol level.  Taylor did not directly address what type of HGN training an officer must undergo to meet the foundational requirement of being “trained in the procedure,” or how strictly an officer must adhere to the procedure to meet the requirement that the test was “properly administered.”  Then, along came State v. Fay, 2015 ME 160, 130 A.3d 364.


Fay appealed his OUI conviction in part based on claimed insufficiency of the evidence introduced at trial.   As part of his challenge, Fay claimed the arresting officer’s testimony about his performance on the HGN, heel-to-toe, and one-leg-stand tests was insufficient to support his conviction, because the officer did not administer those tests in strict compliance with standardized methods prescribed in the National Highway Safety Administration (NHTSA) training manual.  Id. at ¶7.    The Law Court rejected Fay’s sufficiency of the evidence challenge, pointing to evidence apart from the field sobriety tests that included the “odor of alcohol on [Fay’s] breath,” “slurred and incomprehensible speech,” and “slow and lethargic movements.”  Id. at ¶8.   As to Fay’s particular complaint about the manner in which his field sobriety tests were administered, the Court had this to say,  “The use of alternative approaches might be relevant to the weight the jury places upon that evidence, but that is a matter that can be addressed through cross-examination.  Thus a fact-finder may consider a suspect’s unsatisfactory performance of field sobriety tests as evidence of intoxication, notwithstanding variations in the administration of those tests.”  Id.  This declaration is not surprising as it relates to the officer’s testimony about Fay’s performance on the walk-and-turn and one-leg stand tests.  As discussed above [in the book], the Law Court has long stated that the results of dexterity, coordination, speech and memory tests are admissible without a foundation of officer training and proper test administration as,  “observations from which the jurors may draw their own conclusions about a defendant’s sobriety.”  See State v. Ifill, 560 A.2d 1075, 1077 (Me. 1989).   But, in Taylor, the Law Court distinguished the HGN test from, “other common field sobriety tests such as the walk and turn, the one-leg stand, or a recitation of the alphabet” because of the HGN’s greater reliance on “scientific principles.”  See State v. Taylor, 1997 ME 81, ¶11, 694 A.2d 907.  Does the Law Court’s statement, in Fay, about “alternative approaches” and weight of the evidence, signal that the Court now views the HGN as just another field sobriety test, no longer requiring a foundation of proper test administration?  Is it even possible for a “trained” officer to deviate grossly enough from prescribed procedures for the Law Court to hold that a proper foundation did not exist for admission of HGN test results?


As for the officer training prong of the Taylor foundation for admissibility test, the Law Court recently clarified what it takes to meet it, in State v. Hinkel, 2017 ME 76, 159 A.3d 854.  In Hinkel, two police officers testified that they each observed 6 clues during administration of the HGN test.  Id. at ¶3.  On appeal, Hinkel argued that the State failed to lay a proper foundation for admissibility of the HGN testimony by failing to establish that the second officer was qualified to administer the test or that either officer administered the test in conformity with the procedures prescribed by the National Highway Safety Administration (NHTSA).  Id. at ¶6.  Regarding the officer training prong of the Taylor foundation test, the Law Court pointed out that both officers testified “they graduated from the Maine Criminal Justice Academy, where they received training on administration of field sobriety tests, including the HGH test.”  Id. at ¶8.  The Law Court held this was sufficient to support the trial court’s determination that each officer was qualified to testify based on training and experience.  Id.  As to the “properly administered” prong of the Taylor admissibility test, the Court pointed out that there was no evidence in the record demonstrating that the tests deviated in any way from the NHTSA prescribed procedures.  Id.  The Court then offered, “To the extent that the officers did deviate from the protocol provided in the NHTSA manual, the court did not err in admitting the testimony.  We have established that ‘[a] police officer’s failure to strictly adhere to the specific procedures promulgated by NHTSA does not render evidence regarding those field sobriety tests inadmissible or without value in determining whether a suspect is under the influence of intoxicants.’”  Id. at ¶9, quoting State v. Fay, 2015 ME 160, ¶7, 130 A.3d 364.


This brings us to State v. Simons, 2017 ME 180, 169 A.3d 399, where, once again, a defendant claimed the State failed to lay a sufficient foundation for admissibility of HGN results.  As to the training prong for admissibility, the officer testified that he had undertaken a week of both classroom and hands-on training on operating under the influence, at the Maine Criminal Justice Academy.  Id. at ¶9.  Part of this training involved procedures for administering the HGN test and the use of a manual regarding OUI detection.  Id.  At the time of trial, the officer had not been deemed “proficient,” by the Maine Criminal Justice Academy, to administer the HGN, but he was “in the process of being deemed ‘proficient.’”  Id.  The Simons Court rejected the defendant’s attack on the admissibility of the HGN test.  As to the officer training prong, the Court found that the officer’s testimony that he completed a classroom and hands-on training program at the Criminal Justice Academy on field sobriety tests, including the HGN, qualified the officer as an expert on the HGN test.  Id. at ¶16.  With regard to the “properly administered prong,” the Court stated there was no evidence in the record to show that the officer deviated from NHTSA standards in administering the test.  Id.  Again, the Court offered that even if the officer did deviate from protocol in administering the HGN test, that would not render the  results inadmissible, but would leave Simons, “free to cross- examine [the officer] about any failures to adhere to protocol.”  Id.


At this point, the Taylor test for admissibility of HGN test results still stands, but it is not necessary for an officer to complete Maine Criminal Justice Academy training to the point of being deemed “proficient” to meet Taylor’s officer training prong.  It is also not necessary for an officer to strictly adhere to training protocol to meet Taylor’s “properly administered” prong.  Just how little training an officer might complete and still meet the officer training prong for admissibility is an open question, as is how grossly an officer might depart from protocol, using “alternative approaches” to the HGN test, and still meet the “properly administered” prong.  In any event, the Law Court appears to have lost most of its concern, expressed in Taylor, that the HGN involves “scientific principles” to a greater degree than walk-and-turn, one-leg stand or alphabet recitation tests.