Police Officers Can't Testify if the Driver was "Intoxicated" in Drunk Driving Trials

State v. Jones (HSC June 30, 2020)

Background. Maxwell Jones was arrested and charged with operating a vehicle under the influence of an intoxicant. The prosecution’s sole witness at trial was HPD Joshua Officer Wong. Officer Wong testified that one a summer night at around 3:15 a.m. he was on patrol waiting at a red light on Keeaumoku Street when he heard the roaring of a car engine and saw a sedan running a red light. He followed the vehicle and pulled over the driver. When he approached the window he could smell the “strong odor of alcohol” from the driver’s breath. It was Jones. According to Officer Wong, Jones had slurred speech and red, bloodshot eyes. Officer Wong asked for Jones’s license, registration, and insurance. Jones fumbled with his wallet and his license fell onto his lap. Officer Wong asked Jones if he would participate in the standardized field sobriety tests. Jones said he was not drinking that night, but he would participate.

Officer Wong testified he had administered these tests at least 800 times. He was trained to do them four years before and the training was more than 24 hours of training over three days and two nights on live subjects, some of whom were drinking and some were sober. As part of his classroom and practice training, he was also taught how to evaluate the subject’s performance on these tests. Officer Wong passed the written test and practical examinations, which included reviewing studies that described the findings and success rate of each sobriety test. Based on this training, he had been qualified to administer and evaluate the tests.

Officer Wong also participated the “ARIDE” program, a refresher course on sobriety tests and an introductory course to the drug recognition expert program. Upon completion of ARIDE in 2012 he was also deemed a drug recognition expert and took another course in drug recognition in 2013. Finally, Officer Wong qualified to become an instructor of sobriety tests for other HPD officers. That required more training, exams, and classes. He was certified by the National Highway and Traffic Safety Administration (NHTSA) and the International Association of the Chiefs of Police (IACP).

Officer Wong testified that the NHTSA manual provides standards for the administration of three sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk-and-turn, and the one-leg stand. A person’s performance on these tests, according to Officer Wong, “is indicative of whether or not they can operate a vehicle in a safe and prudent manner.” Officer Wong was permitted to testify, over the defense’s objection, about the correlation between the ability to perform the tests and the ability to operate a motor vehicle. Officer Wong moved on to testify about Jones’s performance.

Jones was cleared to perform the tests by responding negative to the medical rule-out questions and the area for the tests was well-lit, level, and the weather was clear. Jones was qualified to take the tests.

According to Officer Wong, over objection, testified about the HGN test and how its done in accordance with the NHTSA manual. Over objection, Officer Wong was permitted to testify that Jones performed the HGN test and Officer Wong noticed six “clues” of intoxication—lack of smooth pursuit of the eye as it followed Officer Wong’s pointer, distinct and sustain nystagmus at maximum deviation, and the onset of nystagmus prior to reaching forty-five degrees in both eyes. This meant that Jones “failed” the HGN test, which meant that he had a blood alcohol content of 0.08 or above. Officer Wong backed this conclusion with studies he learned about in his training, but did not elaborate.

For the walk-and-turn, Officer Wong testified that he administered the test in accordance with the NHTSA manual and Jones exhibited seven clues of intoxication. Because only two are needed to fail, Jones “failed” this one.

Finally, for the one-leg stand, Officer Wong testified that it was done in accordance with NHTSA and Jones failed that too. Based on these failings Officer Wong testified that he concluded Jones was not able to drive the car safely and arrested him. Based on his performance, Officer Wong testified that Jones was intoxicated.

The district court with the Hon. Judge James Kawashima presiding convicted Jones. Jones appealed and the ICA affirmed.

NHTSA-Trained Police Officers Cannot Testify as Experts that a Person “Passed” or “Failed” a Standardized Field Sobriety Test. Expert testimony is governed by HRE Rule 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto int eh form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.

To qualify as an expert the proponent must show that the witness is qualified by knowledge, skill, training, or education, the proffered testimony can assist the trier of fact to understand the evidence or determine a fact at issue, and the analysis is trustworthy. State v. Metcalfe, 129 Hawai'i 206, 227, 297 P.3d 1062, 1083 (2013). Expert testimony is not without limitation. Although expert testimony “in the form of an opinion or inference [may] embrace an ultimate issue to be decided by the trier of fact,” HRE Rule 704, “questions which would merely allow the witness to tell the [trier of fact] what result to reach are not permitted. Nor is the rule intended to allow a witness to give legal conclusions.” State v. Vliet, 91 Hawai'i 288, 296-297, 983 P.2d 189, 197-198 (1999).

The HSC held that Officer Wong was qualified as an expert based entirely on NHTSA standards. A review of the NHTSA manuals, however, reveal that there are no “passing” or “failing” of the tests. (The HSC conveniently provided a link for the full version of both the participant and instructor NHTSA manuals in the opinion itself.) The HSC held that the district court erred in allowing Officer Wong to opine that Jones “failed” these examinations and that the error was not harmless beyond a reasonable doubt. The HSC ordered a new trial.

Further Guidance for Jones on Remand. The HSC went on to address how it should be presented on remand. First, it took up the issue about the HGN test. The ICA in State v. Ito, 90 Hawai'i 225, 978 P.2d 191 (App. 1999), concluded that HGN are reliable enough to assist officers in making a probable cause determination and did not determine if it was admissible trial evidence. Id. at 241, 978 P.2d at 207. The HSC rejected this distinction. What is good enough to make a probable cause determination “is also admissible as indicia of whether a driver” was intoxicated at trial. However, Officer Wong’s expertise does not allow him to testify that he believed Jones had a blood alcohol content of 0.08. This is a legal conclusion.

The New Rule for Future Drunk Driving Trials is that Officers Cannot Testify that a Driver Appeared “Intoxicated.” Having resolved Jones’s case, the HSC moved on to determine the future of DUI trials. Police officers trained by NHTSA and qualified as experts may testify about the field sobriety tests and the subject’s performance on those exams. They cannot, however, provide an opinion—expert or lay—that based on that performance and observation, the subject was “intoxicated.” For the HSC this is no different than testifying that the driver was “over the legal limit,” an impermissible legal conclusion. State v. Vliet, 91 Hawai'i at 296-297, 983 P.2d at 197-198.

Chief Justice Recktenwald’s Concurrence and Dissent. The CJ agreed with the majority in all aspects but one: the categorical ban on concluding that a person was intoxicated. He wrote that the majority “upends more than twenty years of precedent by holding that police officers, whether testifying as lay witnesses or experts, cannot opine as to whether a defendant was intoxicated. This categorical ban sounds not like the Hawai'i Rules of Evidence, statute, or any other legal principle, but in hypothetical concerns arising in hypothetical cases.” Justice Nakayama joined.