Court: Court of Appeals of Oregon; September 12, 2018; Oregon; State Appellate Court
Defendant appeals a conviction for driving under the influence of intoxicants (DUII), contending that the trial court erred by allowing a police officer to provide expert testimony regarding the effects of traumatic brain injury (TBI) on the horizontal gaze nystagmus (HGN) test results. The court agrees that the officer lacked the requisite expertise to testify about the correlation between TBI and HGN, and the error is deemed not harmless. Consequently, the conviction is reversed and the case is remanded for further proceedings.
During the trial, Officer Poole was the sole witness, testifying that he stopped the defendant after observing erratic driving behavior. Poole noted several signs of impairment during the stop, including slurred speech, droopy eyelids, and a strong odor of alcohol. The defendant disclosed a history of traumatic brain injury but claimed no speech issues. Poole conducted the HGN test, where the defendant scored six out of six, indicating impairment. Additionally, the officer reported aggressive behavior from the defendant during the encounter and noted that the defendant admitted to drinking wine. Although the defendant consented to a breath test, no results were presented. Defense counsel challenged Poole’s qualifications concerning TBI and its impact on nystagmus during cross-examination.
Experience with individuals who have traumatic brain injuries (TBI) indicates they often experience confusion and may have difficulty with speech and mobility. The extent of these issues can vary based on the severity of the injury. It is acknowledged that a person with TBI and a prosthetic leg might struggle with walking in adverse conditions. The questions asked prior to administering the Horizontal Gaze Nystagmus (HGN) test are designed to identify potential injuries that could affect test results, such as head trauma, which can lead to false positives for nystagmus. The training from the National Highway Traffic Safety Administration (NHTSA) acknowledges that brain injuries can cause nystagmus, which comes in various forms, including physiological and fatigue nystagmus.
When learning about Mr. Brown's TBI, the officer was not surprised by the presence of nystagmus. The officer, however, is not a medical professional and lacks specific knowledge about the muscles controlling eye movement. The officer described the characteristics of nystagmus, emphasizing that it must be distinct and sustained to be identified as such. During cross-examination, the prosecutor aimed to affirm the accuracy of the HGN test results despite the defendant's TBI.
To avoid false positives, the officer would first check for resting nystagmus, which would indicate a neurological disorder. The officer reported observing no resting nystagmus or unequal pupil sizes, both of which could suggest a brain injury. Both pupils were noted to be equal in size during the examination.
Nystagmus resulting from trauma differs from alcohol-induced nystagmus in that the latter presents consistent indicators (six clues) throughout testing, while brain injury-related nystagmus typically shows only one type and lacks consistency. Defense counsel objected to the qualifications of expert witness Poole, who was trained by the National Highway Traffic Safety Administration (NHTSA) to recognize various forms of nystagmus and their causes, including the effects of drugs and brain injuries. The trial court overruled the objection, allowing Poole to testify that individuals with traumatic brain injuries would consistently exhibit nystagmus, which does not fluctuate, unlike alcohol-related nystagmus. Poole confirmed he did not observe any nystagmus in the defendant during the trial. The jury convicted the defendant of DUII, leading to an appeal arguing the trial court's error in admitting Poole's testimony regarding the differences in nystagmus types. The state countered that the defendant's objection was not preserved and asserted Poole's qualifications as an expert. Citing OEC 702, the court noted that expertise can stem from knowledge, skill, experience, or training without needing a specific degree. The court affirmed that a qualified expert can provide valuable insights based on their experience, which was applicable in this case.
Expertise required for providing helpful testimony on complex subjects exceeds a general understanding attainable through basic research. Expertise cannot be merely what an average person can learn in a short time. For instance, an officer's extensive experience in DUII investigations does not suffice to present scientific evidence necessitating a complex understanding of blood alcohol content (BAC) changes over time. The Oregon Supreme Court recognized in State v. O'Key that testimony regarding the Horizontal Gaze Nystagmus (HGN) test qualifies as scientific expert testimony. The court reviewed the scientific validity of the HGN test and concluded its principles are sufficiently reliable for admission as evidence of impairment, provided there is foundational proof that the officer was properly qualified, administered the test correctly, and recorded the results accurately. The court acknowledged the potential for false positives in the HGN test and allowed for defense questioning of the test's reliability under specific circumstances, noting various causes of nystagmus beyond alcohol use. However, the court did not assess scientific principles related to false positives. According to O'Key, a trained officer can testify about the administration and performance of the HGN test, including precautions taken to prevent false positives and the observed signs. In this case, Officer Poole possessed sufficient expertise to testify about how he administered the HGN test, the signs he observed to avoid false positives, and the implications of the defendant's score indicating impairment.
Poole's training in administering the HGN test does not qualify him to provide scientific expert testimony regarding the relationship between traumatic brain injury (TBI) and nystagmus as it pertains to HGN test performance, as established in O'Key. The disputed testimony, which claims to explain how TBI-related nystagmus affects HGN test results, is deemed scientific because it relies on an understanding of nystagmus physiology. Under OEC 702, expert evidence is considered scientific when it is rooted in scientific principles and methods, which Poole's testimony lacks.
The evaluation of Poole's qualifications reveals he does not possess the requisite knowledge, skill, experience, training, or education to assist the jury in determining whether the defendant's HGN test results were influenced by alcohol or TBI. The comparison with Althof highlights the importance of relevant experience in establishing expertise; Poole’s lack of relevant experience undermines his ability to provide helpful inferences to the jury regarding the cause of the defendant's HGN test score. The prior case involved a detective whose limited experience was insufficient for scientific testimony, mirroring the deficiencies in Poole's qualifications.
Poole's prior experience involved investigating domestic violence cases, allowing him to understand various reasons for delayed reporting. However, he lacked direct experience with the Horizontal Gaze Nystagmus (HGN) test or evaluating individuals with traumatic brain injuries (TBI). Unlike a cited officer with extensive experience with abuse victims, Poole had only engaged in conversations with people with TBIs but had not formally evaluated them. His training consisted of a brief 24-36 hour NHTSA course, which covered basic information about nystagmus and indicators of alcohol but did not provide him with a comprehensive understanding of the relationship between TBIs and nystagmus. His cross-examination revealed a limited grasp of the physiology of nystagmus and TBIs. Overall, Poole's training was insufficient compared to other experts who have significantly more knowledge and experience in related fields, undermining his credibility as an expert witness under OEC 702.
An expert in biomechanical engineering and accident reconstruction possessed two certificates in biomechanical engineering and a certificate in accident reconstruction, which included extensive training and examinations. Another expert on drug-induced dementia had advanced pharmacology degrees and relevant research experience. However, the testimony of Poole, who had general knowledge about traumatic brain injury (TBI) and nystagmus, was deemed insufficient for determining whether the defendant's HGN test results were due to alcohol or TBI. The trial court incorrectly allowed Poole's testimony, as he lacked the necessary expertise in TBI physiology for such a specific determination. The state claimed the error was harmless, asserting that the evidence of intoxication was overwhelming, but the defense's argument—that the defendant’s behavior was misinterpreted as intoxication due to his TBI—was significantly undermined by Poole's testimony. This erroneous admission directly impacted the defense's theory, rendering the error not harmless. Consequently, the conviction for driving under the influence was reversed and remanded, while affirming other aspects of the case, including the defendant's acquittal of reckless driving. Additionally, the court did not need to address the issue regarding the exclusion of a newer NHTSA manual version for cross-examination, as the primary error had been resolved.
