Facts
As Meridian policeman R. L. Thomas drove his police cruiser into the parking lot of a Shell service station located on Highway 39 North in Meridian around midnight in 1995, a male customer emerged from the service station and spoke to Officer Thomas and Officer Troy Smith, who was riding in the front passenger’s seat with Officer Thomas.
Smith exited the cruiser and entered the service station to investigate the information which the male customer had conveyed to them. While Smith entered the service station, Thomas drove behind and around the service station and parked the police cruiser near the corner of the building. As Thomas prepared to join Smith inside the service station, Smith emerged from the service station and identified Dale Holmes, who was also leaving the service station, as the man who had been the subject of the male customer’s information.
Holmes entered his pickup truck, in which there was one passenger, and drove off the service station parking lot across Highway 39 Bypass. Holmes then began driving his truck west on North Frontage Road. Thomas and Smith pursued Holmes with the blue lights of their police cruiser flashing. Holmes had driven less than a quarter of a mile from the Shell service station when he stopped his truck in a motel parking lot in response to the flashing blue lights. Thomas approached Holmes as he sat in his truck and explained to Holmes that he, Officer Thomas, had stopped him because a customer emerging from the Shell service station had reported to Thomas that Holmes was “being obscene in the store.”
Thomas noted the odor of alcohol coming off of Holmes’s breath, and he observed that Holmes had bloodshot eyes. According to Thomas, Holmes’s pupils were very dilated. Because of these observations and because Thomas considered Holmes’s talking to be aggressive, he summoned Meridian’s DUI police officer, J. G. Crain.
Holmes did not exit his truck while Thomas was at the scene. As soon as DUI Officer Crain arrived, Thomas advised Crain why Holmes had been stopped. Thomas and Smith then immediately left the scene because Thomas had received another call.
Crain returned to his police car and turned on a compact VHS camcorder mounted on the car’s dashboard to record his encounter with Holmes. Crain also wore a microphone in his pocket so that the audio of his conversation with Holmes might be recorded while he was giving the field tests.
Crain observed that Holmes had slurred speech and that Holmes’s eyes were dilated, bloodshot. When Holmes spoke to Crain, Crain detected an intoxicating beverage coming from him. After Holmes got out of his truck as Crain had requested, the DUI officer noticed that Holmes appeared to be a little unsteady on his feet.
Crain then administered the HGN test on Holmes and received six distinct clues out of his eyes. The HGN test is but one of three field tests which Crain administered to drivers whom he suspected of driving under the influence. The other two field tests were the walk and turn test and the one-leg stand test, but Crain did not administer these latter two field tests because Holmes told Crain that he “had something wrong with his knees,” which explanation Crain accepted.
Because Crain received six distinct clues out of Holmes’s eyes from his administration of the HGN test, he escorted Holmes to the headquarters of the Meridian Police Department to administer the intoxilizer [breath] test. However, Holmes declined to submit to the test.
Holmes was convicted of DUI and sentenced to five years. On appeal, he argued the HGN test was improperly relied upon for this conviction. MCOA agreed with Holmes and reversed.
Analysis
MSC case Young was decided after this case was tried. Young held 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 intoxilizer or blood test. This is the only allowable use for the test results.
Young’s conviction was affirmed because there was other evidence besides the HGN test which led the court to believe that he was guilty of DUI.
In our case, we cannot discern from Officer Crain’s testimony the extent to which he relied on the six clues he received from his administration of the HGN test to Holmes for his conclusion that Holmes was operating under the influence. Officer Crain did not administer the other two field tests, and the other indicia of Holmes’s inebriation to which both Officer Thomas and Officer Crain testified, i.e., bloodshot eyes, dilated pupils, slurred speech, and “aggressive talking” are ambiguous, especially in light of Officer Thomas’s concession under cross-examination that he had no basis on which to conclude that Holmes was “under the influence” or to charge Holmes with having violated any law until after Holmes drove into a parking lot located no more than one-quarter mile from the Shell service station, where he stopped.
Therefore, pursuant to its review of the State’s evidence that Holmes was operating his truck under the influence, this court cannot evaluate the State’s evidence of Holmes’s guilt as being so overwhelming that allowing DUI Officer Crain to testify about his administration of the HGN test on Holmes and his receiving six clues from its application was harmless error.
Thus, consistent with Young, we hold that notwithstanding his initial ruling on Holmes’s motion to suppress Officer Crain’s testimony about the HGN test, the trial judge erred by allowing this testimony, and we accordingly reverse and remand this case.