State v. Browning, WD76144 the Missouri Western District Court of Appeals examined the defendant's
appeal of his conviction for Felony Driving While Intoxicated / Aggravated
Offender after a trial by jury. Browning maintained that there was insufficient
foundation to allow the admission of Sergeant Kantola's testimony
regarding the results of a horizontal gaze nystagmus (''HGN')
test conducted prior to his arrest for DWI.
On a Sunday night in 2007 Mr. Browning was stopped for multiple traffic
violations, including speeding and failure to signal while changing lanes.
Upon exiting his Jeep, Mr. Browning admitted to Sgt. Kantola that he had
'drank some earlier'. Sgt. Kantola observed Mr. Browning's
eyes were glassy and bloodshot, that his pupils were dilated, and that
he stumbled and used the door to support himself when getting out of the vehicle.
Sgt. Kantola administered field sobriety tests, including the HGN, Walk
and Turn, and One-Legged Stand test. Mr. Browning also submitted to a
Preliminary Breath Test (PBT) which was positive for the presence of alcohol.
After being arrested for DWI Mr. Browning was taken to the police station
where he agreed to submit to a breath test, the results of which showed
a blood alcohol content of .103.
On Appeal, Browning challenged the trial court's admission of Sergeant
Kantola's testimony regarding the results of the HGN field sobriety
testing. The Court agreed that the admission of the HGN test results was
error, however that the rest of the evidence, which was not challenged,
was enough to uphold the felony DWI convicition. The evidence considered
traffic infractions committed prior to the stop, the
admission of consumption of alcohol by Mr. Browning, Sergeant Kantola's observations, and the
Officer's testimony regarding Mr. Browning's
performance on the other field sobriety tests.
In his separate, concurring opinion, Judge Gary D. Witt addressed ...'how
the error in admitting the HGN test results in Browning's case sharply
illustrates rampant misunderstanding and weaknesses in the administration
of the HGN test, calling into serious question the reliability of the
results when not properly administered.'
Judge Witt's detailed analysis of the the NHTSA guidelines and the
steps necessary for properly administering the HGN test, '... the
only exclusively scientific test of the three in the battery...perhaps
the least understood of the field sobriety tests.' is informative
and mandatory reading for the DWI practitioner.
'If not properly administered, the HGN test loses its scientific reliability
and becomes irrelevant to the issues before the court. Because of Sgt.
Kantola's failure to properly administer the HGN test, the State failed
to lay a proper foundation, and this evidence should have been excluded.'
Judge Witt concludes.