from the District Court of McLean County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
R. Erickson, State's Attorney, P.O. Box 1108, Washburn,
N.D. 58577-1108, for plaintiff and appellant.
J. Q. Weiss, P.O. Box 835, Mandan, N.D. 58554, for defendant
and appellee; submitted on brief.
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
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.
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
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 ...