Opinion
Case No. 02-40106-01-RDR
November 15, 2002.
MEMORANDUM AND ORDER
On November 13, 2002, the court held a hearing on the defendant's motion in limine. Neither party offered any evidence during the hearing. At the conclusion of the hearing, the court made some oral rulings. The purpose of this memorandum and order is to memorialize those rulings.
The defendant is charged with operating a vehicle with a blood alcohol content (BAC) over .08 in violation of 18 U.S.C. § 13 and K.S.A. 8-1567(a)(2) or, in the alternative, driving under the influence in violation of 18 U.S.C. § 13 and K.S.A. 8-1567(a)(3). He was arrested on Fort Riley on May 26, 2002 after several field sobriety tests (FSTs) were administered including a preliminary breath test (PBT). He later refused to take a breath test.
The defendant has filed a motion in limine in which he seeks a court order excluding the following evidence: (1) the PBT; (2) the horizontal gaze nystagmus (HGN) test; (3) statements made by the defendant; (4) the defendant's prior DUI convictions; (5) the defendant's performance on the one leg stand and the walk and turn test; and (6) any field sobriety test exercises which the defendant performed but have no relationship to the issue of alcohol-induced impairment. The defendant also argues that the testimony regarding the field sobriety tests should be restricted to lay observations.
In support of some of these arguments, the defendant contends that either Kansas statutory law or Kansas common law precludes admission of some of this evidence. Although this case involves a violation of Kansas law under the Assimilative Crimes Act, 18 U.S.C. § 13, the admissibility of evidence is governed by federal standards. United States v. Iron Cloud, 171 F.3d 587, 590-91 (8th Cir. 1999); United States v. Brannon, 146 F.3d 1194, 1196 (9th Cir. 1998).
PBT
Kansas law prohibits the admission of the PBT except for the purpose of challenging the validity of an arrest or validity of the request to submit to a test. K.S.A 8-1012. As stated previously, this statute does not preclude admission in federal court, but the overwhelming weight of authority is that the PBT is not reliable as anything more than a screening test to be used for probable cause. See Iron Cloud, 171 F.3d at 590-91 n. 5. Accordingly, the court shall grant this aspect of the defendant's motion, both as to evidence that the test was given and to its results.
HGN
The defendant, relying upon State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992), has suggested that the Kansas Supreme Court has determined that the HGN test is not admissible in Kansas. The court finds that Witte does not control here for at least two reasons. First, as stated previously, this court is not bound by the decisions of the Kansas courts on evidentiary matters. Second, the defendant's portrayal of Witte is not entirely accurate.
In Witte, the Kansas Supreme Court did reverse a driving under the influence conviction that had relied in part on the HGN test. The Court, however, ruled that the HGN test results were scientific evidence that must satisfy the standard for the admissibility of scientific evidence set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 836 P.2d at 1121. The Court further determined that the reliability of the HGN test in the scientific community was not a settled proposition. Id. The Court remanded the case to the trial court to decide if the HGN test satisfied Frye. Id. In a later case, State v. Chastain, 265 Kan. 16, 960 P.2d 756, 761 (1998), the Supreme Court did indicate that Witte remains the law in Kansas. Kansas courts, however, have yet to consider the introduction of this evidence under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Other courts, however, have allowed the admission of the HGN. See United States v. Horn, 185 F. Supp.2d 530, 551-53 (D.Md. 2002). The court is not persuaded at this time that the defendant's motion should be granted. The court shall consider the evidence offered at trial and then consider the issue again.
STATEMENTS MADE BY THE DEFENDANT
The defendant seeks to exclude any statements made by him because they were made in violation of the Fifth Amendment. He argues that no Miranda warnings were made prior to these statements. The government has indicated that it does not intend to offer any statements that were made by the defendant following his arrest and after he was removed from the scene of the arrest.
The only statements that remain at issue concern the defendant's responses to questions by the officers at the scene concerning how much he had had to drink. These statements appear to the court to have been made pursuant to a custodial interrogation. Accordingly, the court shall grant this aspect of the defendant's motion.
DEFENDANT'S PRIOR DUI CONVICTIONS
The defendant seeks to exclude all testimony and evidence regarding his prior DUI dispositions. The government has not indicated any desire to use this evidence. Accordingly, this aspect of the defendant's motion shall be granted.
DEFENDANT'S PERFORMANCE ON THE FIELD SOBRIETY TESTS
The defendant contends his performance on the FSTs should not be admitted because (1) the officer who administered the tests did not use the appropriate objective criteria; and (2) the accuracy of these tests is limited.
The court shall deny this aspect of the defendant's motion. These are matters that will have to be addressed at trial.
TESTIMONY REGARDING FIELD SOBRIETY TESTS SHOULD BE RESTRICTED TO LAY OBSERVATIONS
The defendant contends that the government's witnesses should be prohibited from: (1) introducing evidence about field sobriety test exercises that have absolutely no relationship to the issue of alcohol-induced impairment; (2) describing the "field sobriety test" exercise as "test;" (3) using words such as "fail," "results," "points," "clues," or "indicates" or any similar words to describe defendant's execution of the exercises; (4) reference to government's use of the HGN test; and (5) stating an opinion as to whether the defendant was "under the influence" or "impaired" at the time of the arrest.
The defendant believes that the court must initially determine if FSTs are (a) scientifically based or (b) within the realm of lay knowledge. He believes that the government must show that there is a provable relationship between FSTs and alcohol impairment. The defendant further argues that if the court determines that FSTs are not scientific, but rather within the realm of lay understanding, then the government must not be allowed to refer to FSTs as a test. The same argument goes to the other words mentioned above. Finally, the defendant contends that the court should not allow the officers to testify that he was "under the influence" or "impaired." He acknowledges, however, that the officers can testify that he was drunk or intoxicated.
On the matter of the FSTs, we will have to consider these issues at trial. The defendant has failed to provide any foundation for his suggestions. The court does, however, intend to allow the officers to refer to the FSTs as "tests." The court sees no undue prejudice to the defendant in such a reference.
As to the second aspect of the motion, i.e., whether the officers can testify about the intoxication of the defendant, the Tenth Circuit has indicated that a court did not err in allowing a police officer to testify that a defendant was "extremely intoxicated." See United States v. Denny, 2002 WL 31323395 (10th Cir. 2002). In light of this case, we will allow the police officers to testify that the defendant was "drunk" or "intoxicated" or whatever descriptive condition the officer believes is appropriate.
In sum, the court shall grant the defendant's motion in part and deny it in part. The court will consider some of the issues raised in the motion as we hear evidence in the case.
IT IS THEREFORE ORDERED that defendant's motion in limine (Doc. # 12) be hereby granted in part and denied in part as set forth in the foregoing memorandum.
IT IS SO ORDERED.