In 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 included the 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.