DWI Blog
The Oregon Court of Appeals recently heard an appeal in the case of State v. Bevan, CFH060312 (Or.App. 2010). The case was based on the vertical gaze nystagmus field sobreity test. The test was used as evidence against Curtis Bevan, the defendant, and the appeals court accepted his argument that the test was not reliable enough to be admissible!
A police officer stopped Mr. Bevan for speeding and asked for identification. Mr. Bevan did not have a license or proof of insurance, and the officer noticed a strong odor of alcohol on Mr. Bevan's breath. Mr. Bevan admitted he had drunk two beers that night and a search of the car revealed two empty beer cans.
The officer then began to administer sobriety test. First was the horizontal gaze nystagmus test, which Mr. Bevan allegedly failed. Next, the officer gave Mr. Bevan the walk and turn test, which he also allegedly failed. Third, the officer gave him the one leg stand test, which he passed. Last, the officer gave Mr. Bevan the vertical gaze nystagmus test, which he allegedly failed. The officer arrested him on suspicion of DUI (similar to DWI in Texas).
At trial, the arresting officer testified that all of the field sobriety test he performed had been scientifically verified. To support this claim, the prosecutor put into evidence a police manual detailing the tests and the science behind them. With regard to the vertical gaze nystagmus test, the officer testified that a positive result on the test means a person has consumed more alcohol than that person is accustomed to, and that the test performed on Mr. Bevan indicated that he had. Mr. Bevan called two witnesses who had some training in determining when a person was intoxicated and who had observed him just before and just after his arrest. Both witnesses testified that in their opinions, Mr. Bevan was not intoxicated. Nevertheless, he was convicted.
On appeal, Mr. Bevan pointed out that the manual the prosecutor had relied on to demonstrate the scientific validity of the field sobriety test did not have any scientific evidence supporting it other than a statement that it was commonly used in the field. He argued this was insufficient under the rule laid down in State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995), where the Supreme Court of Oregon had said "evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate."
In a later case, State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), the court went on to list 7 factors to be used in determining whether scientific evidence was reliable enough to be used in court: (1) The technique's general acceptance in the field, (2) the expert's qualifications and stature, (3) the use which has been made of of the technique, (4) the potential rate of error, (5) the existence of specialized literature, (6) the novelty of the invention, and (7) the extent to which the technique relies on subjective interpretation.
The judges of the Court of Appeals agreed that the statement that the VGN test was often used in the field was insufficient to establish that it had a sound basis in medical science. The court split 2 to 1 on the issue of what should be done, however. The majority concluded that given that there was evidence on both sides, there was no way to be sure the jury wasn't swayed by the VGN test and since that test was improperly admitted, Mr. Bevan was entitled to a new trial. The case was sent back for a new trial without the VGN test evidence, over the dissenting judge's opinion that the evidence against Mr. Bevan was strong enough for a conviction even without the VGN test.
Don't assume that everything you are told is true. If you have been arrested for DWI, there are many pitfalls involved in representing yourself. You need an attorney who understands the rules. One who knows that Vertical Gaze Nystagmus is inadmissible as it has not been proven to be reliable scientific evidence. Call Kyle Shaw at (214)726-0088. I can help!