Before Judges Pressler, Ciancia and Alley.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2000
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Defendant Robert Doriguzzi was found guilty of driving under the influence of alcohol, N.J.S.A. 39:4-50. The evidence against him consisted of observations by police officers at the location where defendant's vehicle was stopped and later at the police station. Those observations were based in large part on defendant's responses to field sobriety tests (FST) and a horizontal gaze nystagmus test (HGN). A breathalyzer test was administered but the results were not offered into evidence because the machine was damaged after defendant used it and, therefore, no "after test" of the machine's accuracy could be made. In finding defendant guilty, both the municipal court judge and the Law Division judge relied upon the totality of the evidence, including defendant's alleged failure of the HGN test.
The controlling appellate issue is whether the trial courts properly accepted evidence of the HGN test without foundation testimony establishing its general acceptance in the scientific community. The issue is presented because neither this court nor our Supreme Court has yet endorsed HGN testing. A published trial court opinion, decided subsequent to the Law Division's determination in the present case, has held that HGN testing is generally accepted in the relevant scientific community. State v. Maida, 332 N.J. Super. 564 (Law Div. 2000). However, absent a similar determination by this court or our Supreme Court, the trial courts in this State are not at liberty to admit evidence of newly-devised scientific technology unless the general acceptance thereof is demonstrated by expert testimony, authoritative scientific and legal writings or judicial opinions. See generally State v. Harvey, 151 N.J. 117, 166-176 (1997). Here, none of these foundational options were present or discussed in the trial courts. Accordingly, we must decide whether this court should take judicial notice of the general acceptance of HGN testing in the scientific community based upon our independent review of authoritative, scientific and legal writings and those judicial opinions from other jurisdictions that have accepted HGN testing. For the reasons we now set forth, we decline to do so.
The underlying facts are as follows. On May 16, 1998, shortly before 1:00 a.m., defendant was driving his vehicle in an erratic manner and was pulled over by Officer Schroeder of the Park Ridge Police Department. Defendant was unable to produce a driver's license and the officer observed that defendant's eyes were "watery and bloodshot." There was a passenger in the vehicle with defendant and an odor of alcohol emanated from the car. In response to the officer's inquiry, defendant admitted having a couple of beers. Defendant was later to admit drinking a beer every half-hour from 7:00 p.m. to midnight at a social function.
A second patrolman, Officer DiBlasi, arrived on the scene and defendant was asked to exit the vehicle so that certain sobriety tests could be performed. Three tests were administered in all. The first was the HGN test administered by Officer Schroeder. It is undisputed that nystagmus is defined as the involuntary jerking of the eye. Schroeder did not testify to the theory behind the test in so many words, but it is generally understood that alcohol use, among other things, will cause nystagmus. Schroeder had been trained to administer the test and was certified in that regard. His training is not seriously questioned on this appeal. Schroeder explained that he first asked defendant if defendant was wearing hard contact lenses or was under a doctor's supervision. Defendant responded in the negative and Schroeder then began the HGN testing. He held his finger about twelve to fifteen inches in front of defendant's eyes and moved his finger side-to-side. Defendant was asked to follow the finger with his eyes without moving his head and he complied. Schroeder described the process:
The first thing I would test would be the left eye for a lack of smooth pursuit. I then tested the right eye for lack of smooth pursuit. I observed the Defendant to have a lack [of] smooth pursuit in both eyes. The second part of the test was to test for nystagmus at maximum deviation. I tested the left eye first and then the right eye and I did observe nystagmus at maximum deviation in both eyes.
The third part is nystagmus prior to 45 degrees. I did not observe nystagmus prior to 45 degrees in either eye. I then concluded that he failed the test because I have observed four points on the horizontal gaze nystagmus test.
Based on this test, the officer concluded defendant was under the influence of alcohol.
The second test was a "walk and turn" test, which defendant did not properly perform because he lost his balance and at least once did not "touch heel to toe." The third and last test was the "one-legged stand," which, among other things, requires that the subject keep his arms at his side. In attempting to perform the test, defendant lifted his arms, swayed while trying to balance and put his foot down three times when it was supposed to remain elevated. In Schroeder's opinion defendant was under the influence of alcohol.
Officer DiBlasi's testimony was generally corroborative of Schroeder's. DiBlasi had also been trained and certified in HGN testing. He was able to view defendant's eyes as Schroeder administered the HGN test.
Additional sobriety coordination tests were administered at the police station and defendant's performance was imperfect in a number of ways, although he apparently did somewhat better at that time than he had at the scene of his arrest. For present purposes we need not detail those tests and defendant's efforts to complete them successfully.
At the conclusion of the municipal court testimony, defendant's attorney again objected to admission of the HGN tests because there had been no foundation concerning "what the test is, what's it based upon and what its scientific reliability is, what the principles behind it are . . . . " In rendering his decision, the municipal court judge did not directly respond to defense counsel's concerns, but he said:
He [Schroeder] also performed the -- he also performed the HGN test. Nystagmus means an involuntary jerking of the eyes. Although, nystagmus refers to the involuntary jerking that occurs, that the eye (indiscernible) towards the side. In addition to being involuntary, a person [who] experiences nystagmus ordinarily is unaware of the jerking [that] is happening. (indiscernible) is powerless and cannot be controlled. Albeit not judicially established, the HGN test is the most accurate of all tests. I would expect that at sometime [sic] in the near future, our courts will render opinions setting forth the -- their view of the HGN test. This is not a court that has the authority to -- right in establishing that. However, it is one of the factors that are included. The case is not decided on one part.
Based upon the "totality of the circumstances," defendant was found guilty of driving under the influence of alcohol.
At the conclusion of the de novo appeal on the record in the Law Division, the judge again relied upon the totality of the incriminating evidence to find defendant guilty. As to the HGN test, the Law Division judge said:
While there is no written opinion regarding the scientific reliability of the test we know that the courts utilize that testimony on a regular basis. Officers -- and we had two officers testify here, that they were trained in administering those tests. In fact both were able to observe the eye movement of the defendant and ...