Friday, November 17, 2006

HGN Admissible without Frye Hearing

In a DUI case in King County District Court, the State sought a pretrial hearing on the admissibility of the Horizontal Gaze Nystagmus (HGN) test to show impairment by alcohol. (The HGN test is what the patrol officer is doing when he or she asks the driver to follow a pen light side to side.) Since the issue was of county-wide significance, it was assigned to a three-judge panel. The panel held:

[T]he State may move to introduce HGN tests without the need for a Frye evidentiary hearing. The testimony of a state toxicologist regarding the results of an HGN test is admissible if the witness and the witness's testimony meet the requirements of ER 702 and ER 703.
Order on Pretrial Motion Regarding the Admissibility of HGN Evidence to Establish Impairment, Washington v. Williams, No. C0518820 (April 7, 2006), at 9. Judges David A. Steiner and Douglas J. Smith were in the majority; Judge Mark Elde dissented.

This development isn't particularly recent -- the decision was six months ago -- but I think it's worth a post.

1. I wasn't aware of the district court procedure that will assign an issue to a three-judge panel. See King County LCrRLJ 8.2(2). That sounds like a good way to improve consistency. (Of course, if there's a clear statement from the Court of Appeals or the Supreme Court, all the better. There is nothing more recent on HGN than this opinion in WA-CS on Westlaw.)

2. I also wasn't aware that some district court opinions were available (e.g., King County District Court decisions). Many relate to traffic infraction and DUI cases.

3. More on HGN: Photo of officer and Explorer Scout from Wise County Sheriff's Dept., Decatur, TX. On Tuesday, I sent an email message asking for permission to use this photo, but haven't heard back yet. The use seems innocuous to me, so I'll go ahead and use it; I'll gladly take it down if there's a problem.

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