ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR03-192

December 3, 2003

WILLIAM HILLERY AN APPEAL FROM CLARK

APPELLANT COUNTY CIRCUIT COURT

[CR01-235]

V. HON. JOHN A. THOMAS, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

William Hillery appeals from his conviction for driving while intoxicated (DWI). He presents three arguments, asserting that the trial court erred in denying his motion for a directed verdict, denying his motion to exclude the police officer's testimony regarding the horizontal gaze nystagmus test, and denying his motion to suppress. We find no error and affirm.

Arkansas State Trooper David Forthman observed appellant's Ford one-ton truck parked on the entrance ramp of Interstate 30 with its motor running. The ramp is marked with "No Parking" signs. As Forthman approached the truck, he saw appellant slumped down in the driver's seat. The officer knocked on the driver's side window several times in an effort to arouse appellant. When appellant awoke and rolled down his window, Forthman smelled a strong odor of alcohol.

The officer questioned appellant, who admitted that he had been driving from Prescott, Arkansas, and was en route to Little Rock, Arkansas. The officer then asked appellant to exit the truck. Forthman administered the horizontal gaze nystagmus test (HGNtest) on appellant, which tracks the steadiness of the flow of one's eyes as they follow a fingertip or a pen; jerking of the eyes is indicative of intoxication. According to Forthman, appellant's eyes were "continuously jerking." Forthman testified that because appellant's balance was very unsteady and because appellant appeared to be confused, he felt it was unsafe for appellant to attempt additional field tests.

Forthman arrested appellant for suspicion of DWI and inventoried his vehicle. The officer found an insulated mug in the front console that was full of ice and smelled of alcohol mixed with soda. At this point, Forthman escorted appellant to the sheriff's office, where Deputy Jason Watson administered a breathalyzer test. The test revealed that appellant's blood-alcohol content was .312; under Arkansas law, it was a violation to drive with a blood-alcohol content of .10 or greater.1

Appellant was charged with DWI and requested a jury trial. Prior to the trial, he filed a motion-in-limine to exclude Forthman's testimony regarding the HGN test. Appellant argued that HGN testing is unreliable and does not meet the requirements for admitting novel scientific evidence under Arkansas law. He also filed a motion to suppress the evidence, arguing that Forthman had no probable cause to approach his vehicle. The trial court, without a hearing, denied appellant's motions. During the trial, appellant renewed all of his previously filed motions and moved for a directed verdict; the court again denied his motions. A jury convicted appellant and sentenced him to serve one day in jail and to pay a $1,000 fine. This appeal followed.

I. Sufficiency of the Evidence

For double-jeopardy reasons, we first consider appellant's challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in a light most favorable to the appellee, and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Breedlove v. State, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Breedlove v. State, supra.

Appellant argues that the evidence does not support his conviction because the sole evidence regarding his blood-alcohol level was unreliable. Appellant's argument is not persuasive. Jason Watson, a deputy with the Clark County Sheriff's Office, administered the breathalyzer test to appellant. He testified that he is certified to administer the breathalyzer test. He further testified that appellant's blood-alcohol level registered at .312, which was well-above the then-legal limit. Appellant did not dispute Watson's qualifications or argue that he improperly administered the test.

Rather, appellant elicited testimony from his own witness, Dr. Roger Hawk, to support the unreliability of breathalyzer tests in general, and to raise questions concerning the reliability of the actual machine used to test appellant. Dr. Hawk is the chairperson of the Applied Science Department at the University of Arkansas at Little Rock. He testified that with a blood-alcohol level of .25 to .4, the range in which appellant's results fell, a person experiences symptoms such as general inertia, marked stupor, loss of muscular coordination, and the inability to walk or stand.

He also explained the process used in a breathalyzer, including the internal checks that the machine performs on itself to make sure it is purged of residual alcohol gas before it is used. Dr. Hawk stated that the process may yield inaccurate results, sometimes as much as 40%, due to the variations in pressure with which people blow into the machine, and variations in the temperature of different portions of the lungs. He further stated that various physical conditions, such as gastroesophagus reflux and the retaining of mouth alcohol in "pockets" in the mouth, could affect the results. Dr. Hawk concluded that appellant's result, .312, was a "real big number" that was probably the result of residual mouth alcohol released in a "quiet belch." However, Dr. Hawk also testified that the "evidence ticket," which indicated how the machine had operated and what the results were, showed that there was nothing wrong with the machine and that "everything went clickety, clickety, click."

The jury heard the evidence concerning the reliability of the breathalyzer machines, in general, and of the reliability of the machine used in this case, in particular, and chose to believe that the machine in this case was reliable. Further, appellant's conduct, as described by Forthman, was consistent with the conduct described by Dr. Hawk that would be expected from a .312 reading. Viewing the evidence in the light most favorable to the State,

we hold that there was substantial evidence to support appellant's conviction.

II. Testimony Regarding the Horizontal Gaze Nystagmus Test

Appellant's second argument is that the trial court erred in denying his motion to exclude the officer's testimony regarding the HGN test, because the test is unreliable. An HGN test is administered by having a driver to cover one eye and focus the other eye on an object, usually a pen, held by the officer at the driver's eye level. As the officer gradually moves the object toward his ear, out of the range of vision of the driver, the officer watches the driver's eyes to detect involuntary jerking, which is indicative of intoxication.

Appellant offers extensive argument supporting why the HGN test should be considered unreliable under the standard for admitting scientific evidence adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). This four-factor test examines testing, peer review, error rates, and acceptability in the scientific community. Id. Under the Daubert approach, the trial must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts in the case. Id. The Arkansas Supreme Court has adopted the Daubert test to determine the admissibility of expert testimony, scientific or otherwise, under Arkansas Rule of Evidence 702. The Coca Cola Bottling Co. of Memphis, Tennessee v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).

Appellant concedes that the Arkansas courts have recognized the admissibility of the HGN test under the relevancy approach announced in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), but he maintains that Daubert requires a stricter approach than Prater. However, even in adopting Daubert, the Arkansas Supreme Court did not reject the Prater rule; to the contrary, the court noted the similarities between the two approaches, with reliability being the critical element. See Foote, supra. Prater requires the trial court to conduct a preliminary inquiry of any novel scientific evidence, focusing on: 1) the reliability of the process used to generate the evidence; 2) the possibility that the jury would be overwhelmed, confused, or misled by the evidence; 3) the connection between the evidence to be offered and the disputed factual issue in the particular case. Prater, supra; see also Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).

However, appellant asserts that under Daubert, the trial court must conduct a preliminary inquiry, regardless of whether the HGN test is "novel" scientific evidence. We do not agree. The Arkansas Supreme Court has not expressly ruled that a Daubert inquiry is required in the absence of novel scientific evidence. Further, this court has held that a Daubert inquiry is not necessary where the witness's testimony was based on experience and observations rather than methodology, and where the testimony was not novel in any respect. Arrow Int'l Inc. v. Sparks, 81 Ark. App. 42, 98 S.W.2d 48 (2003)(concerning a physician's testimony).

Accordingly, we hold that the trial court did not err in admitting the officer's testimony concerning the HGN test. An officer's testimony regarding a HGN test is admissible to show that a driver has ingested substances that would make him an unsatisfactory driver, and is relevant as some indication of intoxication, but not to show the percentage of blood-alcohol content. Whitson v. State, supra. Moreover, no preliminary finding under Prater is necessary, where the defendant makes no showing that use of the HGN test results is "novel," but merely argues regarding the reliability and relevance of admitting the HGN test results. Whitson v. State, supra. That is, where HGN tests are admitted merely as an indication of intoxication, this is not considered "novel" scientific evidence, and the Daubert test does not apply.

Thus, Daubert did not require a preliminary inquiry in the instant case. Here, appellant did not offer evidence that the HGN test was novel; instead, he offered evidence that the HGN test results were unreliable and irrelevant. Further, while Officer Forthman very briefly explained how the test was performed and explained that eye jerking is an indication of intoxication, his testimony appears to be based on his experience and personal observations rather than HGN testing methodology. Moreover, Forthman merely testified as to his experience in conducting the HGN test on appellant; he did not testify as to the reliability of the methodology of the HGN test in general.

Finally, the evidence regarding the HGN test was not admitted to prove that appellant's blood-alcohol level was above the legal limit. That fact was subsequently established by the results of appellant's breathalyzer test. Accordingly, we hold that the trial court did not err in admitting the officer's testimony regarding the HGN test.

III. Motion to Suppress

For his final argument, appellant asserts that the trial court erred in denying his motion to suppress the evidence, because the officer did not have probable cause to approach appellant's vehicle. In reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). In conducting a clear-error review on factual issues, our appellate courts defer to a trial court's resolution of conflicting testimony and its assessment of witnesses' credibility. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002).

Here, the officer testified that he spotted appellant's vehicle parked, with its motor running, on a ramp of Interstate 30 that had "No Parking" signs posted. He saw appellant slumped in the driver's seat. Forthman then knocked on the window several times; when appellant awoke, he rolled down his window and Forthman smelled alcohol, which precipitated the field sobriety test that led to appellant's arrest.

Appellant notes that Forthman testified that eighteen-wheeler trucks park on the ramp so the drivers can sleep, but that his attention was drawn to appellant's truck because it was smaller. Appellant asserts that the State shows no other reason that would justify Forthman approaching the vehicle other than the fact that his truck was smaller than most of the trucks that park on the ramp. He argues that, prior to knocking on the window, Forthman had no facts upon which to base a reasonable suspicion that would warrant further investigation. Appellant's argument is disingenuous. Appellant omits from his discussion Forthman's testimony that the ramp contained "No Parking" signs; that Forthman routinely stops both large and small trucks that park on the ramp; and that he checks "more" on the smaller vehicles, because of his concern that something is wrong or that the smaller vehicle may have "broke down"; and that he had approached approximately six vehicles parked on that ramp in the last six months, and had issued three warning tickets for illegal parking during that same time period.

Despite appellant's assertion, Forthman had probable cause to ask appellant to roll down his window. It is a violation of Arkansas law to park where official signs prohibit parking. Ark. Code Ann. § 27-51-130(a)(14)(Repl. 1994). Here, the officer saw appellant's truck parked on an interstate ramp that was marked with "No Parking" signs. This gave the officer probable cause to believe that appellant had violated a traffic law, to approach the vehicle, and to have appellant roll down his window so that the officer could determine if there was a problem. Moreover, the fact that appellant did not receive a citation for illegally parking does not vitiate the officer's probable cause to approach him. Whether a police officer has probable cause to make a traffic stop does not turn on whether the driver was actually guilty of the violation that the officer believed to have occurred. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Therefore, we hold that the trial court did not err in denying appellant's motion to suppress.

Affirmed.

Neal and Crabtree, JJ., agree.

1 The threshold has since been reduced to .08. Ark. Code Ann. § 5-65-103(b)(Supp. 2003).