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Officer’s testimony regarding HGN test is lay, not expert, opinion

State v. Joseph J. VanMeter, 2014AP1852-CR, 11/24/15, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Following the footsteps of State v. Warren, No. 2012AP1727-CR, unpublished slip op. (WI App Jan. 16, 2013), the court of appeals holds that an officer’s testimony about how a defendant performed on an HGN test is not subject to the Daubert test for the admissibility of expert testimony.

Officer Jaquish stopped VanMeter on suspicion of OWI and administered field sobriety testing, including an HGN test. VanMeter sought to exclude Jaquish’s testimony at trial because it did not satisfy § 907.02(1), Wisconsin’s Daubert standard. The HGN test, he argued, is not sufficiently reliable, and there was no evidence that Jaquish administered it in compliance with training manual procedure. The circuit court admitted the evidence, and the court of appeals affirmed because Jaquish’s testimony was not “‘scientific, technical, or otherwise specialized knowledge’ in the form of an expert opinion.” Slip op. ¶11. The court of appeals explained:

As Judge Brown stated [in Warren], “Allowing a jury to consider an officer’s subjective opinion that the defendant was impaired, based on his observations of the defendant (including observations made during field sobriety tests) that the officer considered to be reliable indicators, is not error.” Warren, ¶8 (citing Wilkens, 278 Wis. 2d 643, ¶13). We agree, as have other courts whose decisions the State cites. See City of Fargo v. McLaughlin, 512 N.W.2d 700, 705-06 (N.D. 1994) (no expert interpretation required where an officer, based upon training, “observes the objective physical manifestations of intoxication”; collecting cases); State v. Nagel, 506 N.E.2d 285, 286 (Ohio Ct. App. 1986) (HGN testing, like other field sobriety testing, “requires only the personal observation of the officer administering it.”). The HGN test was merely one tool used by the officer in reaching his lay opinion that VanMeter was intoxicated. Indeed, VanMeter, on appeal, readily admits that application of the HGN test is “necessarily subjective.” We agree, and such subjectivity in a lay opinion, as well as the officer’s lack of knowledge regarding the underlying scientific bases or reliability of the HGN test, are valid subjects for cross-examination. This subjectivity, however, does not transform the officer’s lay opinions and other testimony regarding the HGN test into evidence subject to the Daubert standard for admissibility. We therefore conclude the circuit court did not erroneously exercise its discretion by permitting Jaquish’s testimony regarding the HGN test given to VanMeter. Slip op, ¶15.

Note: it appears that other jurisdictions have applied Daubert in this situation, but most seem to hold that such testimony satisfies the test. See list of cases at Slip op. ¶15 n.5.

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