Memorandum in Support of Defendant’s Motion in Limine to

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					§1:81 Memorandum in Support of Defendant’s Motion in Limine to Preclude
Field Sobriety Test Evidence

MEMORANDUM IN SUPPORT OF DEFENDANT‟S MOTION TO
PRECLUDE SFST EVIDENCE

I. THE FILED SOBRIETY TEST EVIDENCE IN THIS CASE DOES NOT
MEET THE KELLY/FRY/DAUBERT STANDARDS FOR ADMISSIBLITY OF
SCIENTIFIC EVIDENCE.

A. INTRODUCTION

        One of the most important functions of a trial court is to rule on the
admissibility of evidence. This function is critical in ensuring only relevant and
reliable evidence is received and used by the jury in determining a person‟s guilt
or innocence. This role is so important, that motions in limine may be brought
pre-trial to determine the admissibility of questionable evidence. Charbonneau v.
Superior Court (1976) 42 Cal. App 3d 505.

        By this motion in limine counsel seeks to preclude any and all testimony
from any and all witnesses regarding the defendant‟s performance and the
evaluation of that performance on field sobriety tests. The field sobriety tests in
this case are inadmissible under People v. Kelly (1976) 17 Cal.3d. 24, other
relevant case law, and the California Rules of Evidence.

B. QUESTIONS OF ADMISSIBILITY OF EVIDENCE SHOULD BE HEARD
PRE-TRIAL AND OUTSIDE THE PRESENCE OF THE JURY.

       In deciding the question of admissibility of evidence, the trial court is
guided by a number of procedural rules. Pursuant to California Code of Evidence
Section 402:

(A) When the existence of a preliminary fact is in dispute, its existence or
nonexistence shall be determined as provided in this article.
(B) The court may hear and determine the question of the admissibility of
evidence out of the presence or hearing of the jury; but in a criminal action, the
court shall hear and determine the question of the admissibility of a confession or
admission of the defendant out of the presence and hearing of the jury if any party
so requests.

California Code of Evidence Section 400 defines a preliminary fact. As used in
this article, “preliminary fact” means a fact upon the existence or nonexistence of
which depends the admissibility or inadmissibility of evidence. The phrase „the
admissibility or inadmissibility of evidence‟ includes the qualification or
disqualification of a person to be a witness and the existence or nonexistence of a
privilege.
The admissibility of the proffered evidence regarding field sobriety tests in this
case is based on the preliminary fact that the field sobriety tests constitute a
scientifically valid way of measuring the defendant‟s sobriety. The defense
disputes the existence of this preliminary fact as relates to the field sobriety tests
used in this case, as argued below.

Since the prosecution is the proponent of this proffered evidence, it must bear the
burden of production:

(a) The proponent of the proffered evidence has the burden of producing evidence
as to the existence of the preliminary fact, and the proffered evidence is
inadmissible unless the court finds that there is evidence sufficient to sustain a
finding of the existence of the preliminary fact, when: (1) the relevance of the
proffered evidence depends on the existence of the preliminary fact;
(b) Subject to Section 702, the court may admit conditionally the proffered
evidence under this section, subject to evidence of the preliminary fact being
supplied later in the courts of the trial;
(c) If the court admits the proffered evidence under this section, the court:
(1) May, and on request shall, instruct the jury to determine whether the
preliminary fact exists and to disregard the proffered evidence unless the jury
finds that the preliminary fact does exist;
(2) Shall instruct the jury to disregard the proffered evidence if the court
subsequently determines that a jury could not reasonably find that the preliminary
fact exists. Cal. Evid. Code Section 403.

As used in this article, “proffered evidence” means evidence, the admissibility or
inadmissibility of which is dependent upon the existence or nonexistence of a
preliminary fact. Cal. Evid. Code Section 401.

The testimony of the officer in this case, as it relates to the defendant‟s
performance on field sobriety tests, is “proffered evidence”:

Based on the foregoing, any attempt by the prosecution to introduce testimony
based in whole or in significant part on the performance of field sobriety tests
must first pass a Kelly hearing outside the presence of the jury.

C. THE FIELD SOBRIETY TESTS USED IN THIS CASE MUST BE JUDGED
UNDER THE KELLY STANDARD OF ADMISSIBILITY.

1.      THE CURRENT RULE OF EXPERT OPINION REGARDING
        SCIENTIFIC EVIDENCE AS DEFINED BY
        KELLY/FRYE/DAUBERT IN CALIFORNIA COURTS

       In 1976 the California Supreme Court reached a unanimous decision
regarding general principles of admissibility of expert testimony based on new
scientific techniques. In that decision, People v. Kelly (1976) 17 Cal. 3d. 24, the
court required a three-step approach for admissibility of evidence based on new
scientific techniques; (1) expertly established reliability of the technique
presented, (2) testimony on the subject by a properly qualified expert, and (3)
adherence to the proper scientific procedures in the specific case. Kelly, at p. 30.
The Kelly decision embodied the principles of Frye v. United States (D.C. Cir.
1923) 293 F. 1013 regarding scientific acceptance.

The United States Supreme Court took its own hard look at the Frye standard in
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. In that
decision, the Court ruled the Frye standard had been superseded by the Federal
Rules of Evidence and those rules were the standard for admitting or precluding
expert testimony in federal trials.

        The California Supreme Court was forced to reconcile these cases and this
state‟s position on admissibility of expert opinion based on new scientific
techniques in People v. Leahy (1994) 8 Cal 4th 587. After a detailed analysis of
the above cases, the California Evidence Code, the legislative history of the
California Code, and various authorities relating to the issue, the court concluded:

In sum, Kelly sets forth the various reasons why the more “conservative” Frye
approach to determining the reliability of expert testimony regarding scientific
techniques represents an appropriate one. Daubert, which avoided the issues of
Frye’s “merits,” presents no justification for reconsidering that aspect of our
holding in Kelly. Thus, we conclude that the Kelly formulation survived Daubert
in this state, and that none of the above-described authorities critical of that
formulation persuade us to reconsider or modify it at this time. People v. Leahy at
597.

2.    THE KELLY STANDARD IS APPLICABLE TO ANY TESTIMONY
BASED IN WHOLE OR IN SIGNIFICANT PART ON PERFORMANCE ON
FIELD SOBRIETY TESTS.

         It is well established that the procedure set forth in Kelly is applicable only
to “new scientific techniques.” See People v. Webb (1993) 6 Cal. 4th. 494; People
v. Stoll (1989) 49 Cal. 3d. 1136. Based on California Evidence Code Sections
802 and 803, and the recent persuasive holding in Kumho Tire Co. Ltd. v.
Carmichael (1999) 526 U.S. 137, 119 S.Ct. 1167, the Kelly standard is also
applicable to opinions expressed by police officers and other witnesses based in
whole, or in significant part, on training and experience.

a. Kelly Is Applicable to Opinion Testimony Based on Training and Experience.

       Pursuant to California Code of Evidence Sections 802 and 803, a witness,
whether lay or expert, may state an opinion and the reasons therefore unless the
reasons or basis for the opinion are precluded by the court. Preclusion is
warranted where the reasons or basis are improper. Such an evaluation of the
admissibility of the opinion has been described as the “gatekeeping” function of
the trial court. This entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts at issue. Daubert
v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 (inapplicable on other
grounds in California [see above], but, principle of “gate keeping” survived);
People v. Leahy, supra; see also People v. Kelly (1976) 17 Cal. 3d. 24; Frye v.
United States (1923) 293 F. 1013; Kumho Tire Co., Ltd. v. Carmichael (1999) 526
U.S. 137, 119 S.Ct. 1167.

         Although in Kumho, the United States Supreme Court was commenting
specifically on the Federal Rules of Evidence as determined by Daubert, its
analysis of the “gatekeeping” role under any standard, including the standard
required pursuant to California Evidence Code Sections 802 and 803, is
persuasive. The Court alluded to this position by stating that “the gatekeeping
inquiry” of Daubert is applicable when “the relevant reliability concerns may
focus upon personal knowledge or experience” of the witness. Kumho Tire at
1175. This is true because “some of Daubert’s questions can help to evaluate the
reliability even of experience based testimony” Id. at 1176.

        In reaching this decision, the United States Supreme Court found it would
be difficult, if not impossible, to hold the Daubert standard applicable only to
“scientific” knowledge and not also include “technical” or other “specialized”
knowledge. Stating “there is no clear line that divides one from the other,” the
court held:

And whether the scientific expert testimony focuses upon specialized
observations, the translation of those observations into theory, a specialized
theory itself, or the application of such a theory in a particular case, the expert‟s
testimony often will rest „upon an experience confessedly foreign in kind to the
jury‟s own.‟ Kumho Tire at 1174.

        Based on this rationale, the standards of Daubert have been expanded and
are not limited to traditional “experts” or “expertise.” In fact, the Kumho Tire
Court stated that “a trial court should use the specific factors identified in Daubert
where they are reasonable measures of the reliability of expert testimony” Id. at
1176. This is necessary to make certain that a witness, “whether basing testimony
upon professional studies or personal experience, employs the same level of
intellectual rigor that characterizes the practice of an expert in a relevant field.”
Id. at 1176. It is important and relevant for the trial court to ask the witness how
often he has produced erroneous results, whether his methodology is generally
accepted, etc., even of a “witness whose expertise is based purely on experience.”
Kumho Tire at 1176.

       b. Field Sobriety Tests Are a “New Technique”.
        While various types of field sobriety tests have existed almost as long as
the automobile itself, time alone does not define “new” for the purposes of a Kelly
analysis. In determining whether a scientific technique is “new” for Kelly
purposes, longstanding use by police officers seems less significant a factor than
repeated use, study, testing and confirmation by scientists or trained technicians.
People v. Leahy (1994) 8 Cal. 4th 587 at 598.1

       The only testing of field sobriety tests that meets this definition was
conducted at the request of the National Highway Traffic Safety Administration
(hereinafter NHTSA)2. Additionally, only the three standardized tests, and their
standardized administration, adopted by NHTSA have been so evaluated.

        In the case at bar, the officer did not use the three tests that have been
made the subject of extensive research. The tests used by the officer are untested,
unstudied and unsubstantiated as indicators of sobriety. While the proponent may
argue that these tests have long been used by law enforcement in the performance
of their duty:

To hold that a scientific technique could become immune from Kelly scrutiny
merely by reason of long standing and persistent use by law enforcement outside
the laboratory or the courtroom seems unjustified. Leahy at 598.

        Unless, and until, the proponent of the tests can establish their reliability,
pursuant to Kelly, no testimony should be admitted regarding the performance by
the defendant on those tests.

       c. Field Sobriety Tests Are a “Scientific Technique”.




       1
          The relevance of People v. Leahy , supra, to this entire discussion can
not be understated. Leahy is the seminal case regarding any aspect of field
sobriety testing in California. In Leahy, the California Supreme Court was asked
to look at the admissibility of horizontal gaze nystagmus (HGN) as a field
sobriety test. The court made an analysis similar to the one argued herein.
        In reaching their decision, the justices recognized several key points that
are applicable to the case at bar: first, that despite longstanding use by officers,
HGN is a “new scientific technique; second, that the applicable standard of
evaluation is stated in People v. Kelly; third, that the proponent of HGN would
have to provide “scientific” evidence of the reliability of HGN; and finally, that
the above-created questions must be answered at a properly held hearing.
This is exactly the position being argued in these papers.
        2
          See “Driving Under the Influence Enforcement Manual” California
Highway Patrol, 8-95, HPM 70.4 p. 2-8; “Driving Under the Influence & Under
the Influence” San Francisco Police Department, 4-97, DM-3 p. 12.
        In Stoll, the court suggested trial courts define “scientific” for the purposes
of a Kelly determination, by evaluating the purpose behind Kelly, i.e., to protect
the jury from techniques that convey a “misleading aura of certainty.” Stoll at
1155. This same rationale was echoed by the United States Supreme Court‟s
holding that Daubert, “applies not only to testimony based on “scientific”
knowledge, but also to testimony based on “technical” and “other specialized”
knowledge. Kumho at 1171.

        In People v. Leahy, the court used just such an analysis of the horizontal
gaze nystagmus test. In determining that test was a scientific technique, the court
noted that the name of the test, the manner in which it is given, and the testimony
of the officer all tend to persuade the jury the test yields a “definitive truth.”

         The standard testimony with regards to other Field Sobriety Tests further
fits the definition outlined in Stoll and Leahy. First, the name “Field Sobriety
Test” implies a predetermined pass/fail or graded score. It is implied that
someone, somewhere and at sometime, set forth a “key” for evaluating the
performance. The formal sounding nature of each of the individual tests further
enhances the perception that these tasks are definitive in their assessment of
sobriety.

        These factors are reinforced by the usual testimony of the officer as to the
specific directions given the defendant prior to his or her performance of the
tasks. In many cases, this is further reinforced by the officer‟s demonstration of
the events in court. Finally, the officer‟s use of pre-printed evaluation forms
indicates to the jury that these tests have been studied and are reliable, when the
evidence is clear such is not the case.

       As stated in Leahy, “the aura of certainty emanating from the officers‟
description . . . was unmistakable. . . . A jury could be unduly and unjustifiably
impressed by the confidence the testifying officers showed. . . .” Leahy at 599.
This theory is based on the time-honored perception that jurors can and do give
undue weight to evidence that seems to be scientifically proven.

        Therefore, in order to present testimony based in whole or in significant
part on the defendant‟s performance on field sobriety tests, the prosecution must
meet the burden set forth in People v. Kelly.

3. THE FIELD SOBRIETY TESTS USED IN THIS CASE DO SATISFY THE
KELLY STANDARD.

       In 1975, NHTSA funded a research project run by the Southern California
Research Institute. At that time, Dr. Marceline Burns was a founder and
researcher at that organization. The project was to determine if there were, either
individually or in combination, any roadside tests that could aid an officer in
determining whether a person was under the influence of alcohol. See Statement
Under Oath of Dr. Burns (hereinafter Burns Stmt.) attached hereto.

        Pursuant to that contract, research was performed evaluating many of the
commonly used roadside tests and narrowing the list to approximately 15 tests
that were used nationwide and seemed to have some usefulness. From that group
of 15 tests, only 6 were eventually believed to be valid and feasible at roadside.
(Burns Stmt. at 10-15)

        These 6 tests were then studied in controlled laboratory experiments to
determine their accuracy. (Burns Stmt. at 22-24). In the end, a combination of
three tests was determined to be the best indication of impairment. These three
tests: horizontal gaze nystagmus, one legged stand, and walk the line, were
adopted by NHTSA as the only tests to determine sobriety at roadside. (Burns
Stmt. at 7-8).

       To date, there has been no other scientific study correlating roadside
exercises and sobriety. (Burns Stmt. at 38). (Relevant portion attached hereto and
incorporated herein by reference. Available in entirety upon request).

         Additionally, as Dr. Burns has pointed out on many occasions, variance
from the proscribed manner of administering, observing, and evaluating an
individual‟s performance of the three standardized tests deprives the tests of
reliability and accuracy. “Therefore the scoring and the observations don‟t relate
to any of the research data or any of the accumulated data over the years.” (Burns
Stmt. at page 30, line 4-7).

        This position, that only tests given in the “standardized” manner, have any
validity is echoed in virtually every police manual regarding field sobriety tests3.
(Relevant portion attached hereto and incorporated herein by reference. Available
in entirety upon request).

         Furthermore, this position is the current trend in many other states. Most
recently, the Ohio Supreme Court in State v. Homan (April 26, 2000) 89 Ohio St.
3d 421, 732 N.E. 2d 952, held that any variation in the use of the NHTSA
Standardized Field Sobriety Tests makes the results completely unreliable as
relates to probable cause, a lower standard than required for conviction. The
court found “it is well established that in field sobriety testing even minor
deviations from the standardized procedures can severely bias the results.” This
is due in part , the court reasoned, to “[t]he small margins of error that
characterize field sobriety tests making strict compliance critical” and “[w]hen

       3
          e.g. “To enjoy the full benefit of these tests in evaluating a DUI suspect,
and the support of the correlation study in court, the officer must administer the
tests as detailed below under „test instructions‟ for each test.” CHP Manual HPM
70.4
field sobriety testing is conducted in a manner that departs from established
methods and procedures, the results are inherently unreliable.” Id.

         Based on the foregoing rationale, the Ohio Supreme Court ruled “in order
for the results of a field sobriety test to serve as evidence of probable cause to
arrest, the police must have administered the test in strict compliance with
standardized testing procedures.” Id. at 4.

        In the case at bar, the officer did not use the three standardized tests. The
tests the officer did use have not been the subject of any review or study. Any
tests that the officer did use from the three tests battery approved by NHTSA,
were done inconsistently with the prescribed manner. As stated above, such
variance from the standard effectively creates a new test. Based on the foregoing,
those tests do not meet the Kelly test for admissibility. Furthermore, it is clear that
the standard enunciated for admissibility in Kelly cannot be met by the
prosecution.

D. CONCLUSION

         The standard for admissibility of evidence based on new scientific
techniques first propounded in Kelly and left unchanged by Daubert is applicable
to field sobriety tests. Pursuant to the California Evidence Code and the recent
decision of the United States Supreme Court in Kumho Tire, the Kelly standard is
applicable to testimony based on training and experience, as well as more
traditional “scientific” knowledge. Under that standard, field sobriety tests are
inadmissible evidence until shown to be in conformance with Kelly. The tests
used in this case do not and cannot be shown to meet this standard of reliability
and should be precluded.

II. THE FIELD SOBRIETY TEST EVIDENCE IN THIS CASE IS
IRRELEVANT.

Pursuant to California Evidence Code Section 350 “No evidence is admissible
except relevant evidence.” “Relevant evidence” is evidence that tends to prove or
disprove any disputed fact of consequence to the underlying action. See Evidence
Code Section 210. In the case at bar, the defendant is charged with violating two
sections of the Vehicle Code, sections 23152(a) and 23152(b).

Vehicle Code section 23152(b) makes it illegal to drive with a blood-alcohol
content over .08. Vehicle Code section 23152(a) makes it illegal to operate a
motor vehicle while impaired.




       4
         Ohio, like most other states, had previously determined, as argued herein,
that only NHTSA Field Sobriety Tests have any evidential weight.
Evidence is relevant in this matter if it proves or disproves either (1) a particular
blood alcohol level, or (2) driving impairment.

Based on the analysis of virtually every state court decision, and hearing or
reading from the foremost experts in the field of DUI/DWI investigation for both
prosecution and defense, the United States District Court for the district of
Maryland found “[t]he results of the SFSTs, either individually or collectively, are
not admissible for the purpose of proving specific blood alcohol content (“BAC”)
of a driver charged with DWI/DUI.” U.S. v. Horn (D. Md. 2002) 185 F. Supp.
530. Therefore, evidence of performance on the SFST‟s is not relevant to the
charge of 23152(b).

Dr. Marceline Burns, considered by most courts to be the foremost proponent of
SFST‟s (see, e.g., Horn, supra), has stated under oath “What you‟re asking is, are
these tests of driving? They are not. . . . The officer is not charged with making a
decision about driving skills at roadside. He couldn‟t. There‟s no way you can
judge somebody in five minutes at roadside that you never saw before to make a
decision about their driving skills”. Statement of Marcelline Burns Under Oath,
April 17, 1998.

Since these tests, according to their foremost proponent, cannot indicate driving
ability, let alone impairment, they are not relevant to the charge of 23152(a).

Based on the foregoing, any testimony with regards to SFST‟s is irrelevant and
should be precluded.

Respectfully submitted,


___________________
Attorney for Defendant

				
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