In 1993, Eugene Young and his brother spent the day fishing and swimming at a lake in Hammond, Louisiana. Between 12:00 A.M. and 5:00 P.M., the two brothers testified to drinking between six and eight twelve ounce beers each. That evening, Young and his brother began driving north on I-55 heading to Young’s home in Richland, Mississippi.
In Brookhaven, the brothers exited the interstate, traveled down Brookway Boulevard, and drove through Taco Bell. Brookway Boulevard is a five lane undivided highway with a center turning lane. After leaving Taco Bell, Young turned right on Brookway, allegedly straddled the westbound lanes and apparently could not decide in which lane to travel. At approximately 10:00 P.M., Young turned onto the I-55 northbound on-ramp where he was stopped by Officers Hart and Brister.
Brister administered three field sobriety tests including the “ABC” and the Horizontal Gaze Nystagmus (HGN) tests. The officer testified that he attempted to give Young a “heel – toe” test as well, but that the test was not completed since the officer was already confident of Young’s intoxication. Young was then handcuffed, frisked, and taken to the Lincoln County Sheriff’s department.
19 minutes later, Young was administered a breath test on an intoxilyzer. Young returned a blood alcohol content of .285%. At trial, Young’s expert testified that to test .285 an hour after stopping drinking, one must consume 17 beers within two hours of testing.
Young was convicted of DUI first offense and sentenced to 48 hours. On appeal, he argued the statute required the state to pick the specific section that they were using against him and that the HGN test should not have been admitted in court. MSC agreed with Young as to the HGN test but affirmed the conviction.
Young states that Miss. Code Ann. § 63-11-30(1)(a) and 63-11-30(1)(c) constitute separate crimes which must be defended in different ways. Young describes § 63-11-30 (1)(a) as the “common-law” D.U.I. charge while (1)(c) is a “per-se” violation.
We interpret the two sections as methods of proving the same offense rather than two separate offenses. Miss. Code Ann. § 63-11-30 merely sets forth numerous methods of committing the same crime. Therefore, we find no merit in this assertion of error.
B. HGN test
The horizontal gaze nystagmus (HGN) test has been used in the United States for over 30 years.
An HGN test is conducted by asking the driver to “cover one eye and focus the other on an object – usually a pen – held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision he watches the driver’s eyeball to detect involuntary jerking. The officer then observes: “(1) the inability of each eye to track movement smoothly; (2) pronounced nystagmus at maximum deviation; and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point.”
We find that the HGN test is a scientific test. The potential of a juror placing undue weight upon testimony about the administration of the test is high. Whereas most other field sobriety tests arise out of a juror’s common experiences, i.e., one stumbles, slurs words, and staggers when drunk, the HGN test relies upon a scientifically or at least professionally relevant set of observations.
Therefore, we find that the HGN test is not generally accepted within the scientific community and cannot be used as scientific evidence to prove intoxication or as a mere showing of impairment.
However, the HGN test can still be used to prove probable cause to arrest and administer the intoxilyzer or blood test. This is the only allowable use for the test results.
We deliver a stern warning concerning using the HGN test for reasons other than to establish probable cause. The State cannot use the results of the HGN test merely as an indicator to show that the defendant was “under the influence of intoxicating liquor” to prove the requisite elements of Miss. Code Ann. § 63-11-30 (1)(a). Furthermore, the State cannot attempt to introduce the HGN test as scientific evidence to show degree of intoxication.
Other evidence in this case overwhelmingly proves the State’s case against Young. Therefore, we find the use of the HGN test in this case to be harmless error.