JOHNNY FAIRES, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Johnny Faires petitioned for certiorari to quash his DUI conviction after an appellate court affirmed his conviction based solely on an officer's testimony regarding horizontal gaze nystagmus (HGN) test results. The Florida District Court of Appeal held that HGN test results alone, without chemical analysis, are inadmissible to establish blood alcohol content and granted certiorari, remanding for a new trial.
HGN test results alone, in the absence of chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption of intoxication and may not be used to establish a BAC of 0.08 percent or more. Allowing such testimony constituted error and a departure from the essential requirements of law.
[1] Horizontal gaze nystagmus (HGN) test results alone are inadmissible to trigger the presumption of driving under the influence or to establish a blood alcohol content of 0…
[2] Testimony regarding HGN test results may not be used to establish a blood alcohol content of 0.08 percent or more.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“HGN test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Section 316.1934, and may not be used to establish a BAC of 0.08 percent or more.”
This establishes the core holding that HGN evidence standing alone cannot be used to prove intoxication.
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Join FLexlaw to unlock all legal intelligenceFaires was arrested for driving under the influence after refusing to sign a traffic citation and refusing a breathalyzer test. At trial, the arrestin…
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SORONDO, Judge.
Johnny Faires petitions this Court for a Writ of Certiorari to quash the opinion of the appellate division of the circuit court affirming his conviction and sentence for driving under the influence.
Faires was charged by uniform traffic citation with driving under the influence. At the time of his arrest he refused to sign the citation and refused the breathalyzer test. Prior to trial, Faires filed a motion in limine seeking to exclude any testimony from the arresting officer, Trooper Dunn, concerning the administration and interpretation of the horizontal gaze nystagmus (HGN) test.1 This motion was denied. At trial, Dunn was allowed to testify that based on the HGN test he conducted on Faires at the time of his arrest, Faires’ blood alcohol content (BAC) was .20, more than double the legal limit. This was error. In Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), this Court held that
HGN test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Section 316.1934, and may not be used to establish a BAC of 0.08 percent or more.
Id., at 36. See also State v. Bresson, 51 Ohio St.3d 123, 554 N.E. 2d 1330, 1336 (1990); State v. O’Key, 321 Or. 285, 899 P. 2d 663, 681 (1995).
In Williams, this Court quoted from the seminal case in HGN admissibility, State v. Superior Court In and For Cochise County, 149 Ariz. 269, 718 P. 2d 171, 181 (1986), which sought to explain why such testimony should be barred:
Such a use of HGN test results would raise a number of due process problems different from those associated with the chemical testing of bodily fluids. The arresting officer’s ‘reading’ of the HGN test cannot be verified or duplicated by an independent party.... The test’s recognized margin of error provides problems as to criminal convictions which require proof of guilt beyond a reasonable doubt. The circumstances under which the test is administered at roadside may affect the reliability of the test results. Nystagmus may be caused by conditions other than alcohol intoxication_
Williams, 710 So. 2d at 36 n. 22 (emphasis added) (citations omitted). See also State v. Taylor, 694 A. 2d 907, 912 (Me.1997); Emerson v. State, 880 S.W. 2d 759 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994).
Based on the holding of Williams, Trooper Dunn should not have been allowed to testify as to Faires’ BAC on the sole basis of the results of the HGN test. We therefore conclude that the Circuit Court’s affirmance of Faires’ conviction and sentence constituted a departure from the essential requirements of law.2
We grant the Petition for Certiorari. The opinion of the appellate division of the Circuit Court is quashed and the ease is remanded to the County Court for a new trial.
Certiorari granted.
. For a thorough explanation of this test see Williams v. State, 23 Fla. L. Weekly D752 (Fla. 3d DCA Mar. 18, 1998). See also State v. Meador, 674 So. 2d 826 (Fla. 4th DCA), review denied, 686 So. 2d 580 (Fla.1996).
. In fairness to the lower courts, we note that the trial of this case and the appeal to the Circuit Court were conducted before the publication of our decision in Williams.
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State v. Whelan, 728 So. 2d 807 (Fla. 3d DCA 1999)…iety test results. VI. As an alternative ground for suppression of the HGN test results, the defendant argues that such results are inadmissible in light of this court’s recent decisions in Williams v. State, 710 So. 2d at 36, and Faires v. State, 711 So. 2d 597, 598 (Fla. 3d DCA 1998). Both of those decisions were announced after the entry of the suppression order now on appeal. Our reversal is without prejudice to the defendant to raise the issue in the trial court. Reversed and remanded for further proc…
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Robinson v. State, 982 So. 2d 1260 (Fla. 1st DCA 2008)…have not, however, adopted the rule that obtains in the Third District, which requires "a confirmatory blood, breath, or urine test before HGN evidence is admissible.” Bowen v. State, 745 So. 2d 1108, 1109 (Fla. 3d DCA 1999) (citing Faires v. State, 711 So. 2d 597, 598 (Fla. 3d DCA 1998)). . A law enforcement officer testified at trial as follows: Q: And the Horizontal Gaze Nystagmus— A: This is a known exercise to determine if someone’s had alcoholic intake. Q: What did you do? A: I used a pen, held it…
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Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999)…resses concerns about the reliability of the HGN test at roadside, the case law in this district addresses that problem by holding that there must be a confirmatory blood, breath, or urine test before HGN evidence is admissible. See Faires v. State, 711 So. 2d 597, 598 (Fla. 3d DCA 1998); Williams, 710 So. 2d at 36. It is true that Williams said, “The ... HGN test was properly administered by a qualified DRE and thus there was no abuse of discretion in the trial court’s admission of the evidence.” 710 So. 2d…
Authorities Cited
- State v. Meador, 674 So. 2d 826 (Fla. 4th DCA 1996)
- Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998)
- Bueno v. City of Huntington Park, 513 U.S. 931 (U.S. 1994)
- Hurley v. United States, 513 U.S. 931 (U.S. 1994)