WA Supreme Court: Trooper Exceeds Expertise in DUI Trial with "No Doubt" Comment
Now, we all know that cops and troopers are often trained in the finer details of DUI investigations. The trooper can then use that training to ascertain impairment based on his training - things like field sobriety tests, properly calibrated breathalyzer results, smell of alcohol on the breath, etc.
What does this allow the jury to do? Determine beyond a reasonable doubt the guilt or innocence based on the testimony of the officer and the other witnesses.
However, witnesses, no matter who they are, can’t testify as to whether the person was guilt beyond a reasonable doubt. This is the equivalent of saying, “Jury, we know we said reasonable doubt was up to you, but really, are you going to go against this witness, who told you that not even he, a learned man in this field, had no reasonable doubt."
Well, that’s kind of what happened here:
Q. In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not Mr. Quaale’s ability to operate a motor vehicle was impaired?
[Defendant's objection that the question goes to the ultimate issue is overruled]
Q .... Did you form an opinion?
A. Absolutely. There was no doubt he was impaired.
Now, this kind of testimony on whether law enforcement may testify as to guilt (the ultimate issue) based on (in this case) the eye tracking with a pen test (jerky eye movements indicate intoxication), is not admissible under State v. Baity, 140 Wn.2d 1, 991, P.2d 1151 (2000). Under Baity, the Trooper can only make an opinion based on a number of factors, and can’t look to just one:
We said that an officer may not testify as in a manner that casts an “aura of scientific certainty to the testimony. The officer also cannot predict the specific level of drugs present in a suspect. We further instructed that a [drug recognition expert] officer, properly qualified, could express an opinion that a suspect’s behavior and physical attributes are consistent or inconsistent with those behaviors and physical signs associated with certain categories of drugs.
Here, the trooper’s testimony violated the limitations set out in Baity. The trooper testified that he had “no doubt” the defendant was impaired based on the HGN test alone. The testimony was improper for two reasons. First, the trooper cast his testimony in a way that gave it an aura of scientific certainty. By testifying he had “no doubt,” the trooper implied that the HGN test may reveal that someone is intoxicated and “impaired” on alcohol with the test simply shows physical signs consistent with alcohol consumption, the officer here cast his conclusion in absolute terms and improperly gave the appearance that the HGN test may produce scientifically certain results.
Second, the trooper testified to a specific level of intoxication when he testified that the defendant was "impaired." The State argues that the trooper's testimony falls within our holding in Baity because the trooper did not testify to a specific blood alcohol level; he simply said the defendant was "impaired." But the conclusion that the defendant was impaired rests on the premise that the defendant consumed a sufficient level of intoxicants to be impaired. Even though the testimony did not include a numerical blood alcohol level, the testimony implicitly includes a specific level of intoxication; that the alcohol consumed impaired the defendant, which is the legal standard for guilt. The HGN test alone cannot reveal specific levels of intoxication, and consequently, the trooper's testimony violated Baity.
Now, in addition to the opinion not being admissible because of the certainty of it, the supreme court also noted that this amounts to an improper comment on the guilt, basically removing reasonable doubt from the jury. I know, I know, its a bit confusing because it almost looks like that’s what the Court just said. But they were talking about that “no doubt” comment based on the HGN has trying to be too scientifically certain. This part is about the right to a jury trial, and you can’t take reasonable doubt away from a jury. Not only did he argue reasonable doubt, but he argued impairment, which is what the jury was to decide. As noted above, while you can argue its consistent with impairment, you can’t say, that beyond a doubt he was impaired.
This opinion seems to say that, even without the “no doubt” comment, that they Court would have reversed based on talking about the ultimate issue of impairment. But the Court does not that that is because, as noted above, the HGN can’t establish impairment, it can only establish the presence of alcohol. As such, it became an impermissible comment on guilt.
While the attorneys at Issaquah Legal Services do not practice criminal law at present, we anticipate adding an Issaquah Criminal lawyer in the near future. Please stay tuned!