HGN test can be used for probable cause to arrest but not in court to convict


In 1995 Randall Richbourg began driving a 1995 Geo Prizm automobile, which he had rented, from a Howard Johnson’s motel in Kansas City, Missouri, toward his home in Panama City, Florida. Richbourg spent the previous night partying to celebrate his having successfully completed twenty-one days of apprenticeship training as a boiler maker at the National Apprenticeship School in Kansas City.

He had placed some unopened cans of beer which remained from the previous night’s celebration in the trunk of the Geo. He stopped for lunch about 11:30 that morning in St. Louis. There he drank one beer. When Richbourg reached Memphis, he unintentionally turned south on Interstate 55. After he realized his error, Richbourg, who was reading an old Mississippi highway map, turned east and was traveling on Mississippi State Highway No. 8 in Monroe County.

The Prizm which Richbourg was driving collided with another vehicle in the intersection of Highway 8 with U.S. Highway 45 Alternate. Trooper Larry Conn, then a 23 day veteran with the Mississippi Highway Patrol, was dispatched to the intersection of Highways 8 and 45 Alternate. When Conn arrived on the scene, he observed some cans of beer in the Geo which Richbourg had been driving, and he smelled alcohol “about the person” of Richbourg.

The impact of the two vehicles apparently caused a forty-five pound dumbbell which Richbourg kept in the trunk to rupture several cans of the beer. The trunk contained no cooler in which the beer cans could have been placed. Based on these perceptions, Trooper Conn conducted a horizontal gauge nystagmus (HGN) test on Richbourg, the result of which was a total of six clues, the most that could be gotten on that test.

Based on the result of the HGN test, Conn asked Richbourg to blow into his portable “AlcoSensor,” but Richbourg refused to do so. Conn then asked Trooper Bailey, who had also arrived by that time, to transport Mr. Richbourg to the Monroe County Jail while Conn finished up the accident.

After Richbourg arrived at the jail in Trooper Bailey’s custody, Richbourg again refused to submit to an intoxilyzer test at the jail. Richbourg’s refusal to submit to the intoxilyzer test resulted in his being charged with DUI in violation of Section 63-11-30(1)(a), which provides: It is unlawful for any person to drive or otherwise operate a vehicle within this State who (a) is under the influence of intoxicating liquor Miss. Code Ann. § 63-11-30(1)(a) (Rev. 1996).

Richbourg was convicted of DUI, first, and sentenced to 48 hours. On appeal, he argued the HGN test should have been inadmissible and there was insufficient evidence to convict him of DUI. MCOA agreed with Richbourg and reversed the conviction.


A. Horizontal Gaze Nystagmus (HGN) test

While this case was tried before the MSC released its opinion in Young, that case determines our resolution of this issue.

Young held that the HGN test could not be used as scientific evidence to prove intoxication or as a mere showing of impairment. The only allowable use for the test results is to prove probable cause to arrest and administer the intoxilizer or blood test. MSC’s reason for so holding was that it found that the HGN test is not generally accepted within the scientific community.

Accordingly, this court resolves Richbourg’s first issue favorably to him and reverses the circuit court’s overruling Richbourg’s objection to Trooper Conn’s testimony about his administering the HGN test to him.

B. DUI not proven

Conn testified that there were some Budweiser cans in the trunk of Richbourg’s leased Geo. Conn further testified that there was the odor of intoxicating beverage about Richbourg’s person. The trooper explained that other than the HGN test, the only other test he would have had Mr. Richbourg to perform would be the one leg stand and the walk and turn. Conn explained that he did not ask Richbourg to perform either of these tests due to the dangerous intersection at the time.

This record contains no evidence that Richbourg was under the influence of alcoholic beverages when the Geo which Richbourg was driving collided with a Ford Explorer in the intersection of Highways 8 and 45 Alternate. The record contains nothing relevant to the manner in which the collision occurred; neither does the record hint about whose fault the collision was.

Apparently one occupant of the Ford Explorer was injured, but the record does not indicate the extent of those injuries. The circuit judge denied Conn the opportunity to express his opinion about whether Richbourg was intoxicated. Under cross-examination, Conn acknowledged that the smell of alcohol alone gave no indication of how much the person who exuded the odor had consumed.

Richbourg told Conn at the accident scene that he was the driver of the Geo, but the record contains no evidence of the manner in which Richbourg had been driving the Geo before the collision between it and the Ford Explorer.

The odor of alcohol which Trooper Conn detected about Richbourg’s person, by his own admission under cross-examination, alone did not give an indication of how much someone like Richbourg had had to drink.