Wednesday, January 9, 2008
Yesterday, the drunken driving trial for "Little People, Big World" patriarch Matt Roloff began in an Oregon courtroom. On June 19, Deputy Allen Pastori pulled over a white van being driven by Roloff after Roloff made a wide turn while leaving the Rock Creek Cafe and Pub and proceeded to drift over the double yellow lines and fog lines several times in the next couple miles. After Roloff exited the vehicle, Pastori smelled a "moderate odor of alcohol" and saw that Roloff's eyes were glassy and watery. Because Roloff uses crutches, Pastori did not make him walk in a straight line, but he did administer a horizontal gaze nystagmus (HGN) test to the reality star. In this test, the police officer places a pen about 10 inches in front of the driver's eyes, tells the driver to follow the pen with his eyes, and moves it from side to side. The officer then determines whether the driver was under the influence based upon six "clues" or "indications, such as whether the driver's pupils are unusually jerky. Generally, a driver exhibiting at least four of the indications is deemed to be intoxicated; Pastori determined that Roloff exhibited all six.
Nonethless, when Pastori proceeded to drive Roloff to jail, Roloff boasted, "I can't wait to give you a breath sample so I can publicly humiliate you." Once at the jail, however, the braggadocio dissipated, and Roloff refused to let Pastori administer the Breathalyzer test. Roloff claimed that he didn't trust Pastori and admitted to having one beer, but claimed that his erratic driving was not based on the alcohol but instead based upon inexperience using the pedal extensions in his wife's van. Nonethless, Roloff, who previously had a Driving Under the Influence of Intoxicants (DUII) charge dismissed after completing an alcohol diversion program in 2003, was again charged with DUII (Oregon's version of a DUI). Under Oregon's DUII statute, a person is guilty of driving under the influence if he drives a vehicle and
(a) has a .08 percent or higher BAC as shown by chemical analysis of the breath or blood of the person;
(b) is under the influence of intoxicating liquor, a controlled substance or an inhalant; or
(c) is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.
Of course, Roloff's refusal to take the Breathalyzer test can be used against him in his trial, but because some courts, such as the Supreme Court of Illinois have recently called into question the reliability and admissibility of HGN test results, I wondered where Oregon courts stood on the test. As it turns out, in its 1995 opinion in State v. O'Key, 899 P.2d 663 (Or. 1995), the Supreme Court of Oregon found that "HGN test evidence is admissible in a prosecution for DUII to establish that a person was under the influence of intoxicating liquor, but is not admissible...to establish a person's BAC, i.e., that a person was driving while having a BAC of .08 percent or more." This dichotomy appears to be consistent with the precedent in most other states allowing for the admission of HGN test evidence. See, e.g., State v. Cochrane, 897 A.2d 952, 955 (N.H. 2006). Nonethless, some courts have held that HGN test evidence is admissible to establish that the defendant had at least a certain BAC level. For instance, several Ohio courts have held that a driver exhbiting at least four out of the six HGN indications "indicates a BAC level above .10 percent." See, e.g., State v. Marshall, 2001 WL 1658096 (Ohio App. 2 Dist. 2001).
Based upon my brief review of the literature on the HGN test, I don't believe that courts such as the Supreme Court of Illinois will find the test to be scientifically unreliable and thus inadmissible. I do think, however, that the evidence criticizing the test provides support for those who might want to challenge courts finding that HGN test results are admissible not only to prove intoxication generally, but also to prove a certain BAC level.