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I'm 68% sure this case is right. [NOT FINAL]

Shawn Minihan won in State v. Shadden, No. 97,457 (Kan. App. Jan. 16, 2009), getting a new trial in a Johnson County DUI case. The COA held that an officer cannot use relate NHTSA guidelines estimating level of intoxication based on field test observations:

The danger inherent in officer testimony that establishes a correlation between a driver's performance during a given field sobriety test and a specific level of intoxication is the possibility that the jury will give the test results undeserved weight as "scientific evidence" when the reliability of the test results has not been established under Frye. While a lack of balance and glassy eyes are commonly known indicators of intoxication, the correlation between test performance and a specific level of intoxication is not within the common knowledge of the average layperson.

In contrast, where officer testimony does not link test performance with a specific level of intoxication, the mere use of the term "test" or an indication by the officer that the defendant failed to perform the tests adequately and, therefore, "failed" the test does not lend scientific credibility to the test results. There is only a semantic difference between "field sobriety test" and "field sobriety exercise" or between "failing a test" and "being unable to perform an exercise adequately." An officer must be permitted to relate the activities a suspected drunk driver was asked to perform
and to indicate that certain deficiencies in the performance of these activities indicated that the driver was intoxicated. A juror is not likely to mistake the purpose of a driver standing in the street on one foot while counting to 30 or walking heel-to-toe for 18 steps on a straight line after being stopped by a law enforcement officer. To this end, it is appropriate for the officer to testify that field sobriety tests were administered and that, based upon the officer's training and experience, the driver failed those tests. It is impermissible to take the additional step of equating a level of certainty or probability to the officer's opinion or to correlate a driver's performance with a specific BAC level.

In the present case, Officer Weiler's testimony went beyond an indication that Shadden attempted to perform certain field sobriety tests and demonstrated multiple clues of intoxication. Weiler also testified that, according to NHTSA standards, a driver who exhibits two clues during the walk-and-turn test has a 68% likelihood of having at least a .10 BAC. Weiler clearly was not qualified to testify about the reliability of the NHTSA standards, and no expert testimony was provided to qualify the NHTSA standards under Frye. Therefore, Shadden had no effective means of cross-examining the reliability of the NHTSA standards because Weiler was merely relating information promulgated by the NHTSA. The result is the officer's opinion that the criminal defendant is intoxicated is given an undeserved scientific
credibility.

Is this a big case in DUI circles?

Full post as published by Kansas Defenders on January 17, 2009 (boomark / email).