Officers in Kansas are allowed to evaluate the level of intoxication through a variety of methods. One method is the use of field sobriety tests. There are three standardized field sobriety tests that have been certified by the National Highway Traffic Safety Administration (NHTSA). These three tests include: the One Leg Stand, the Walk and Turn, and HGN. HGN is short for Horizontal Gaze Nystagmus. You can learn more about the HGN test here.
While each of these methods have come under fire for not being all that reliable, I wanted to use this post to discuss the HGN method. A recent case, City of Wichita v. Molitor, highlights an issue related to HGN testing. To begin with, Kansas law enforcement may have a driver submit to the test if he or she has “reasonable suspicion” to believe the individual has been operating the vehicle while under the influence of drugs and/or alcohol.
The term “reasonable suspicion” is defined by the courts to mean “a particularized and objective basis for suspecting the person stopped is involved in criminal activity.” At this point, I want to take a minute to talk about where reasonable suspicion falls as compared to other standards. Reasonable suspicion is a less demanding standard than probable cause and significantly less demanding than preponderance of the evidence.
In Kansas, “HGN test results are not considered to be admissible at trial without meeting the foundation requirements for scientific evidence.” However, an officer may give testimony regarding the HGN results at a pretrial hearing in order to allow the court to determine “whether a law enforcement officer had reasonable suspicion to request a preliminary breath test.”
In this case, City of Wichita v. Molitor, William J. Molitor appealed his misdemeanor DUI conviction. On appeal, he argued that the lower court “erred by denying his motion to suppress a preliminary breath test (PBT) and Intoxilyzer breath test.” The original finding was affirmed on appeal. The court said that the HGN test results were properly offered for consideration by the district court as part of its “reasonable suspicion analysis.”
The facts of the case shed a little bit more light on the issue. On the evening of February 28, 2009, Molitor was leaving a local bar around 11 p.m. Shortly after leaving the bar, he was stopped by police after they observed him making a right turn without using his turn signal. As Molitor was stopping, he apparently hit the curb.
Once officers approached Molitor's window, they noticed a “strong odor of alcohol” and that his eyes were bloodshot. At that point, the officers asked Molitor if he had been drinking. Molitor said that he had had two or three beers. He was then asked to exit the vehicle in order to administer field sobriety tests. During the HGN test, Molitor displayed “six out of six possible clues of intoxication.”
At first glance, this seems quite damning, but he scored quite differently in the other two field sobriety tests. In fact, Molitor scored only one out of a possible eight clues during the walk and turn evaluation and then only one out of four clues during the one-leg stand test. A PBT test showed Molitor having a .09% BAC (above the .08% limit). Molitor was subsequently arrested for DUI and failing to signal a turn.
At a suppression hearing, Molitor objected to an officer's testimony regarding the HGN results, stating that the Kansas Supreme Court had held HGN evidence to be “inadmissible in court for any reason whatsoever.” However, the district court disagreed. On appeal, Molitor argued that the district court abused its discretion in allowing the HGN testimony to be admitted.
Molitor was unsuccessful with his appeal and the court held that HGN evidence can be admitted and considered as part of the totality of circumstances in determining if a “law enforcement officer has reasonable suspicion to believe a person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs.”
What do you think about this holding? Do you agree with the Kansas Court of Appeals?
