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State v. Engelhorn

Supreme Court of North Dakota

August 22, 2016

State of North Dakota, Plaintiff and Appellant
v.
Chris Engelhorn, Defendant and Appellee

         Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

          Ladd R. Erickson, State's Attorney, P.O. Box 1108, Washburn, N.D. 58577-1108, for plaintiff and appellant.

          Andrew J. Q. Weiss, P.O. Box 835, Mandan, N.D. 58554, for defendant and appellee; submitted on brief.

          OPINION

          McEvers, Justice.

         [¶ 1] The State appeals after the district court ruled the State could not use a defendant's horizontal gaze nystagmus (HGN) test results as evidence of impairment in a jury trial for actual physical control of a vehicle while under the influence of alcohol. We reverse, concluding the court misapplied the law regarding the admissibility of HGN test results.

         I

         [¶ 2] According to McLean County Deputy Sheriff Curt Olson's affidavit, Olson approached a running vehicle after responding to an early-morning report the vehicle was in a ditch. Olson observed the driver sleeping inside the vehicle. The driver identified himself as Chris Engelhorn and admitted he had been drinking alcohol the night before. After Engelhorn recited the alphabet and counted backwards, Olson administered the HGN test, which measures the involuntary rapid movement of the eye. Engelhorn failed the HGN test and a preliminary breath test. Olson arrested Engelhorn for actual physical control of a vehicle while under the influence of alcohol.

         [¶ 3] The State filed a motion in limine requesting to use Engelhorn's HGN test results, through Olson's testimony, as evidence of impairment at trial. The district court denied the motion, concluding Engelhorn's HGN test results could not be used at trial without expert testimony establishing the scientific reliability of the HGN test.

         II

         [¶ 4] On appeal, the State argues the district court erred in denying its motion in limine requesting to use Engelhorn's HGN test results as evidence at trial.

         [¶ 5] A district court has broad discretion on evidentiary matters and we review a ruling on a motion in limine under the abuse of discretion standard. State v. Kuruc, 2014 ND 95, ¶ 26, 846 N.W.2d 314. A court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the law. Johnson v. Buskohl Constr., Inc., 2015 ND 268, ¶ 18, 871 N.W.2d 459.

         [¶ 6] The State argues Deputy Olson should be allowed to testify at trial about Engelhorn's HGN test results under this Court's decision in City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994). We agree. In McLaughlin, we held an officer may testify about a defendant's HGN test results upon a showing of the officer's training and experience in administering the test, and a showing that the officer properly administered the test. Id. at 708. We concluded "HGN test results are admissible only as circumstantial evidence of intoxication, and the officer may not attempt to quantify a specific BAC based upon the HGN test." Id.

         [¶ 7] In its denial of the State's motion in limine, the district court order discussed McLaughlin and cases from Tennessee and Florida that exclude HGN evidence without expert testimony. See State v. Murphy, 953 S.W.2d 200, 202-03 (Tenn. 1997); Robinson v. State, 982 So.2d 1260, 1261 (Fla. Dist. Ct. App. 2008). The district court concluded it is no longer willing to rely on McLaughlin:

I am no longer willing to rely on McLaughlin as authority for admission of HGN test results given as lay testimony. I am persuaded the evidence which is being proposed is scientific evidence, and I do not intend to admit it without the foundation required by Rule 702 and 703 of the North Dakota Rules of Evidence. Because of conflicting published information, I am not willing to take judicial notice of the reliability or lack of reliability of HGN testing. I conclude that a hearing would ...

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