State v. Younts: Rule 702 Does Not Require Proof that HGN Testing is Reliable

Folks, we have an answer. The court of appeals held yesterday in State v. Younts, ___ N.C. App. ___ (2017), that a law enforcement officer trained to administer a Horizontal Gaze Nystagmus (HGN) test may properly testify about the results of a test he administered without any determination by the trial court that HGN testing is scientifically reliable.

Background. Defense attorneys, prosecutors and judges who are involved in the litigation of impaired driving cases know that the admissibility of HGN evidence has been hotly debated for decades. The intensity of the debate increased after the General Assembly adopted the Daubert standard for the admission of expert scientific testimony. Several earlier blog posts (here, here, here, and here) chronicle the legal arguments and developments in this area. Last month, the state supreme court intimated in State v. Godwin, ___ N.C. ___ (June 9, 2017), that proof of HGN’s reliability might not be required pursuant to a subsection of Rule 702 that pre-dates the adoption of Daubert. Younts made that suggestion into law, relying on Godwin in determining that proof of HGN’s reliability was not in fact required.

Younts facts. Highway Patrol Trooper Myron Coffey stopped a car driven by Jennifer Younts on Interstate 240 near Asheville after he clocked its speed at more than 20 mph over the limit. When he approached the car, Trooper Coffey smelled alcohol. He subsequently noted that Younts’ eyes were red and glassy and her speech was slurred. Younts admitted that she had been drinking. Trooper Coffey asked Younts to perform the standardized field sobriety tests: the HGN test, the walk-and-turn test, and the one-leg stand test. The trooper observed several clues of impairment. Younts was arrested for impaired driving. She submitted to a breath test at the jail, which reported an alcohol concentration of 0.06.

Procedural history. Younts was convicted in district court and appealed to superior court. Before trial, she filed a motion to exclude expert testimony regarding the results of her HGN test and requested a hearing. Trooper Coffey testified on voir dire that he had completed a 40-hour course on the administration of standardized field sobriety tests, including the HGN test, and that he took refresher courses every two years. He explained how the HGN test was administered and what he looked for. He testified that he administered Younts’ test in the way he had been trained. He conceded on cross-examination that he had not independently researched HGN testing and that he did not know the rate of error associated with that sort of testing.

The trial court denied Younts’ motion to exclude the HGN evidence, concluding that Trooper Coffey was qualified as an expert in administering an HGN test and that the HGN evidence would be helpful to the jury. Trooper Coffey testified at trial that he noted six out of six clues on Younts’ HGN test. On cross-examination, he referred to “a few studies” from “the 1980’s” stating that four out of six clues indicated that a person had an alcohol concentration of 0.08.  He could not identify the studies or their rate of error.

The jury found Younts guilty of driving while impaired. Younts appealed, arguing in part that the trial court erred by allowing Trooper Coffey to testify about the results of her HGN test without first requiring evidence that HGN testing was reliable.

Holding. The issue before the court of appeals was whether Rule 702(a) requires the State to lay a foundation for the reliability of HGN testing before a qualified expert may testify about the results of an HGN test. The court of appeals determined that Trooper Coffey’s testimony did not establish that the HGN test was a reliable indicator of impairment and that the trial court had not taken judicial notice of the test’s reliability. Nevertheless, the appellate court determined that the trial court did not err by admitting the trooper’s HGN testimony because Rule 702(a) does not require such a foundation for HGN testimony.

Analysis. The court began by reviewing the case law and legislative enactments underpinning the HGN admissibility debate—you can read more about that here (and of course, in the opinion itself). Though the court conceded that a “strict reading of Rule 702” would suggest that the trial court erred by admitting the HGN testimony without taking judicial notice of or inquiring into the reliability of the HGN test, it reached a different conclusion in light of the Supreme Court’s decision in Godwin. Slip op. at 16.

Godwin’s statement that the adoption of Rule 702(a1) “clearly signaled that the results of the HGN test are sufficiently reliable to be admitted into the courts of this State” echoed the holding in Smart that the State does not have to prove the reliability of HGN testing. Based on this similarity, the Younts court concluded that Smart’s holding survived the 2011 amendments to Rule 702. In other words, no Daubert reliability review is required for HGN testing because of the special admissibility provisions in Rule 702(a1). The court explained that under Godwin, it was “compelled to hold that the trial court did not err by admitting Trooper Coffey’s testimony without first making . . . a [reliability] determination.” Slip. op. at 17.

What’s next? Judge Inman wrote the majority opinion in Younts. She was joined by Judges Bryant and Stroud. There was no dissent; thus, the defendant has no appeal of right, but may petition the state supreme court for discretionary review. Given that the holding in Younts was foreshadowed by Godwin, I don’t know how likely it is that such review will be granted.

As a result, the HGN buck may stop at Younts . . . unless the General Assembly again amends Rule 702.

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