OKORIE OKOROCHA (State Bar No. 226658)
NATIONALLY BOARD CERTIFIED CRIMINAL TRIAL LAWYER
CALIFORNIA LEGAL TEAM
117 E. Colorado Blvd. · Suite 465
Pasadena, California 91105
(800) 285-1763 Telephone
(626) 340-4141 Facsimile
Attorney for Defendant
SUPERIOR COURT OF THE COUNTY OF ____________________
STATE OF CALIFORNIA
TO THE ABOVE-ENTITLED COURT AND TO THE PROSECUTOR AND HIS DEPUTY:
The Defendant moves in limine to exclude the prosecution from
attempting to use Horizontal Gaze Nystagmus ("HGN") to establish the
blood alcohol content ("BAC") of the Defendant as a suspect in a
Driving Under the Influence case (“DUI”) The Defendant also thereby
requests the trial court to conduct Cal.Evid.Code §402 hearing and/or
exclude the Deputy District Attorney from attempting to admit into
evidence and/or elicit testimony concerning the use of HGN as evidence
to establish the BAC in this case..
I.
PREFATORY FACTS
The prosecution has indicated its intent to use an HGN test performed
on the DEFENDANT to establish BAC at the time of his detention. This
is not only a novel use of HGN, but it is irrelevant to the issue of
BAC and should be properly excluded from any use or mention during
trial.
II.
POINTS AND AUTHORITIES
1.
A MOTION IN LIMINE IS THE PROPER PRE-TRIAL REMEDY TO EXCLUDE THE
PRESENTATION OR MENTIONS OF ANY EVIDENCE OR MATTERS WHICH
ARE IRRELEVANT OR PREJUDICIAL TO THE CASE, OR THAT HAVE NO PROBATIVE
VALUE TO THE ONLY ISSUES PROPERLY BEFORE THE COURT.
A motion in limine is the proper vehicle for this court to preclude
such irrelevant, prejudicial, or estopped evidence is to be excluded
because it is irrelevant or its prejudicial effect outweighs the
probative value of the proffered evidence . See People v. Morris
(1991) 53 Cal. 3d 152, 188, “A motion in limine is a motion at the
threshold of trial to exclude evidence which is inadmissible and
prejudicial, to avoid the obviously futile attempt to ‘unring the
bell’ when highly prejudicial evidence is offered then stricken at
trial…They allow for a more careful consideration of evidentiary
issues than would take place in the heat of battle during trial” ; See
also Eckert v. Superior Court (1999) 69 Cal. App. 4th 262, 266, “A
motion in limine reflects a litigant's trial strategy and serves to
shape the legal and factual issues to be presented during trial, the
motion is commonly viewed as the "first step" in the trial process.”
2.
ONLY ADMISSIBLE, RELEVANT AND PROBATIVE EVIDENCE
MAY BE USED BY THE PROSECUTION TO DETERMINE BAC.
Pursuant to Cal.Evid.Code §352, this court must exclude any
evidentiary instrument which does not meet this test must be excluded
at trial, as their prejudicial effect outweighs any
probative value. Under Cal.Evid.Code §351, only evidence which is
relevant may be considered by this court, meaning that it must relate
in some matter at issue and tend in reason to prove or disprove any
disputed fact of consequence to the determination of the action. Its’
probative value also must outweigh its prejudicial effect. People v.
Rodriguez (1999) 20 Cal. 4th 1, 9. Cal.Evid.Code §352 codifies this
courts authority to exclude such evidence
“The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
admission will:
(a) Necessitate undue consumption of time, or; create substantial
danger of undue prejudice, of confusing the issues, or of misleading
the jury.”
Before the Prosecution may use any evidentiary vehicle or document, it
must pass this test of relevancy and having probative value to the
actual issues before the jury, or it is absolutely inadmissible at
trial. See Hicks v. Reis (1943) 21 Cal. 2d 654, 660, “The trier of
facts may not indulge in the inference when that inference is rebutted
by clear, positive and uncontradicted evidence of such a nature that
it is not subject to doubt in the minds of reasonable men. The trier
of facts may not believe in impossibilities.”
Cal.Evid.Code §210 establishes the relevancy of admissible evidence
must reasonably prove or disprove a disputed fact. “Relevant evidence
means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove
or disprove any disputed fact that is of consequence (material) to the
determination of the action.” If the probative value of any such
evidence is substantially outweighed by the probability that its
admission will create a substantial danger of undue prejudice, it may
well confuse and mislead the jury. Burns v. 20th Century Ins. Co.
(1992) 9 Cal.App. 4th 1666, 1673-1674.
The probative value of the evidence depends on its materiality and
necessity. People v. Stanley (1967) 67 Cal.2d 812, 818. This Court
must balance the evidence against inferences to be drawn from it, and
determine whether the evidence goes to main issue or only a collateral
issue, and whether the evidence is necessary. Kessler v. Gray (1978)
77 Cal.App.3d 284, 291. Evidence that is offered for an issue which is
not included in the pleadings is also irrelevant and must be
excluded. Fuentes v. Tucker (1947) 31 Cal.3d 1, 7. Similarly,
evidence of a collateral factor matter also must be excluded, because
it does not afford any reasonable presumption or inference as to a
principle fact or matter in dispute, and will only lead to confusion
and a waste of the courts time. Wade v. Southwest Bank (1962) 211
Cal.App.2d 392, 407. It is well-settled that it is within the trial
court's discretion to exclude collateral evidence offered for
impeachment purposes, as well as to exclude evidence that is
cumulative, confusing or misleading. People v. Redmond (1981) 29
Cal.3d 904, 913, Cal.Evid.Code §352.
Further, any unfounded allegations amounting to speculative and
impermissible opinion which lacks foundation, and has no basis in
fact, is therefore inadmissible. Cal.Evid.Code §§ 400-403, 700-702,
800. It is proper to exclude evidence (even that to be used for
impeachment purpose ) when it would consume considerable time and
divert the attention of the jury from the case at hand. People v.
Bittaker (1989) 48 Cal.3d 1046, 1097. This is particularly true when
the Prosecution attempt to use diversionary tactics as “evidence “ and
attempt to create a “trial within a trial”. Hinson v. Clairmont
Community Hospital (1990) 218 Cal.App. 3d 1110, 1114. There is also a
risk that a jury may consider collateral evidence for the truth of its
content, and where that danger exists, the evidence may be excluded.
People v. Coleman (1985) 38 Cal.3d 69, 93.
As will be set forth more fully infra, this court must exclude from
consideration by the jury any HGN test information used for the
purpose of establishing BAC at the time of the DEFENDANT's detention
because it is irrelevant, highly prejudicial, and has no probative
value.
3.
THE DEFENDANT OBJECTS TO THE PROSECUTION'S USE OF
HGN TO ESTABLISH THE BAC OF THE DEFENDANT.
The Prosecution has indicated that it will attempt to bring forth to
the jury evidence of the HGN test administered on the Defendant at his
detention to establish what his BAC was at the time of driving. This
is not only novel, it is irrelevant, has no probative value, and is
highly prejudicial evidence that should properly be excluded from the
jury's purview.
“Nystagmus is an involuntary rapid movement of the eyeball, which may
be horizontal, vertical, or rotatory. [Citation.] An inability of the
eyes to maintain visual fixation as they are turned from side to side
(in other words jerking or bouncing) is known as horizontal gaze
nystagmus, or HGN. [Citation.]” People v. Ojeda (1990) 225
Cal.App.3d 404, 406. The HGN test has a DUI suspect following a
stimulus with the eyes. The officer observes smooth pursuit, nystagmus
prior to a 45 degree angle, and nystagmus at maximum deviation. The
theory supporting HGN testing is that intoxicated persons exhibit HGN
and that a field test conducted by a police officer can identify the
condition. People v. Joehnk (1995) 35 Cal.App.4th 1488, 1494. But it
has its limitations as well, as pointed out by the court in Joehnk.
“First, there is no claim HGN testing alone can determine whether a
suspect is under the influence of alcohol nor determine a
blood-alcohol level. Such testing is a component of a three-part field
sobriety test which itself is only part of an officer's total
observations of a suspect and is only one basis for an officer's
opinion concerning intoxication. Neither is it claimed that HGN is
caused only by alcohol intoxication. The proponents of the technique
readily concede nystagmus can be caused by a number of conditions and
toxins. In light of these concessions, we tend to agree with the
following observation by the Iowa Supreme Court: “[T]he principal
obstacle to the admissibility of the horizontal gaze nystagmus test
may be its pretentiously scientific name.” Id. at 1504, citing to
State v. Murphy, supra, 451 N.W.2d at p. 156.)
It is well-settled that the HGN test has a high baseline error and a
dose/response relationship that varies greatly according to whether
the subject’s blood alcohol concentration is rising or falling.
National Highway Traffic Safety Administration (NHTSA) research found
that Horizontal Gaze Nystagmus (HGN) may be evident when a person’s
BAC reaches approximately .06%. (National Highway Traffic Safety
Administration, U.S. Department of Transportation, Psychophysical
Tests for DWI Arrests, No. DOT-HS-802-424 (June 1977), note 21, at p.
7.)
a)
HGN is Not a Proper Tool for Evaluating the BAC of a DUI Suspect, and
Its Use in the Case at Bar Should Be Excluded Absent a Contrary
Finding at a Cal.Evid.Code §402 Hearing
The Defendant objects to the introduction of any evidence concerning
HGN without first conducting a Cal.Evid.Code §402 hearing concerning
the technique the officer used in administering the test. As set
forth by the California Supreme Court in advising state prosecutors,
procedure does matter in that the scientific test must meet all three
prongs of Kelly-Frye. See People v. Kelly (1977) 17 Cal.3d 24, 30-32,
overruled in part by statute pursuant to Cal.Evid.Code §351.1 as noted
in People v. Wilkinson (2004) 33 Cal.4th 821, 842-843. To satisfy
Kelly, new forms of scientifically based evidence must satisfy a
three-part test. “First, the party offering the evidence must show
that the technique is ‘ “sufficiently established to have gained
general acceptance in the particular field in which it belongs.” ’
[Citation.] Second, the proponent of the evidence must establish that
‘the witness furnishing such testimony’ is ‘properly qualified as an
expert to give {such} an opinion....’ [Citation.] Third, the proponent
must demonstrate that ‘correct scientific procedures were used in the
particular case.’ [Citations.]” People v. Diaz (1992) 3 Cal.4th 495,
526.
In People v. Leahy (1999) 8 Cal.4th 587, the high court held that the
results of an HGN test are admissible only if the technique and the
scientific basis for it satisfy the requirement of Kelly, Id. at
591-592. Further, in People v. Veneges (1998) 18 Cal.4th 47, the
California Supreme Court described the type of foundational proof
required for admissibility of scientific evidence:
“The Kelly third prong inquiry involves further scrutiny of
methodology or technique that has already passed muster under the
central first prong of the Kelly test, in that general acceptance of
its validity by the relevant scientific community has been
established. The issue of inquiry is whether the procedures utilized
in the case at hand complied with that technique. Proof of that
compliance does not necessitate expert testimony anew from a member of
the relevant scientific community directed at evaluating the
technique’s validity or acceptance in that community. It does,
however, require that the testifying expert understand the technique
and its underlying theory, and be thoroughly familiar with the
procedures that were in fact used in the case at bar to implement the
technique.” Id. at 81.
In other words, the Supreme Court requires that the correct procedure
be used to obtain the results sought to be introduced as evidence. In
People v. Loomis (1984) 156 Cal.App.3d Supp. 1, a police officer
offered an opinion of a defendant's blood-alcohol level based on his
observation of the angle of onset of lateral nystagmus. The court
found HGN to be a new form of scientific evidence and subjected it to
the Kelly test of admissibility. The court found no evidence of the
reliability or general scientific acceptance of the HGN test as a
means of determining blood alcohol levels and held the evidence
inadmissible. Id. at pp. 5-7.
Thus, it is inadmissible as evidence and also with argument that
defects only affect the weight of consideration. Most importantly, HGN
evidence cannot be used to establish BAC without meeting the Kelly
standards as set forth in Leahy, supra, 8 Cal.4th at 591-592.
Defendant hereby challenges this predicate showing of the HGN evidence
and demands a Cal. Evid.Code § 402 hearing.
b)
Any Use of HGN Should Be Limited to What the Test Actually Shows, Not
Inferences There from.
If this court does allow some use of the HGN test evidence, the court
should limit the testimony concerting what, if anything, this test
shows because it is only useful when combined with other tests. People
v. Joehnk, supra, 35 Cal.App.4th 1507-1508. The presence of HGN cues
or clues show that a person may have consumed alcohol, but cannot be
used to establish an alcohol level or level of impairment.
Further, Defendant objects to any testimony suggesting that eyesight
is impacted as the result of HGN as violative of Kelly-Frye.
III.
CONCLUSION
Based upon the foregoing, the Defendant hereby requests a hearing
pursuant to Cal. Evid.Code § 402 to resolve each of the above-noted
issues.
Dated: April _____, 2010 CALIFORNIA LEGAL TEAM
__________________________
OKORIE OKOROCHA
Attorney for Defendant _
NATIONALLY BOARD CERTIFIED CRIMINAL TRIAL LAWYER
CALIFORNIA LEGAL TEAM
117 E. Colorado Blvd. · Suite 465
Pasadena, California 91105
(800) 285-1763 Telephone
(626) 340-4141 Facsimile
Attorney for Defendant
SUPERIOR COURT OF THE COUNTY OF ____________________
STATE OF CALIFORNIA
TO THE ABOVE-ENTITLED COURT AND TO THE PROSECUTOR AND HIS DEPUTY:
The Defendant moves in limine to exclude the prosecution from
attempting to use Horizontal Gaze Nystagmus ("HGN") to establish the
blood alcohol content ("BAC") of the Defendant as a suspect in a
Driving Under the Influence case (“DUI”) The Defendant also thereby
requests the trial court to conduct Cal.Evid.Code §402 hearing and/or
exclude the Deputy District Attorney from attempting to admit into
evidence and/or elicit testimony concerning the use of HGN as evidence
to establish the BAC in this case..
I.
PREFATORY FACTS
The prosecution has indicated its intent to use an HGN test performed
on the DEFENDANT to establish BAC at the time of his detention. This
is not only a novel use of HGN, but it is irrelevant to the issue of
BAC and should be properly excluded from any use or mention during
trial.
II.
POINTS AND AUTHORITIES
1.
A MOTION IN LIMINE IS THE PROPER PRE-TRIAL REMEDY TO EXCLUDE THE
PRESENTATION OR MENTIONS OF ANY EVIDENCE OR MATTERS WHICH
ARE IRRELEVANT OR PREJUDICIAL TO THE CASE, OR THAT HAVE NO PROBATIVE
VALUE TO THE ONLY ISSUES PROPERLY BEFORE THE COURT.
A motion in limine is the proper vehicle for this court to preclude
such irrelevant, prejudicial, or estopped evidence is to be excluded
because it is irrelevant or its prejudicial effect outweighs the
probative value of the proffered evidence . See People v. Morris
(1991) 53 Cal. 3d 152, 188, “A motion in limine is a motion at the
threshold of trial to exclude evidence which is inadmissible and
prejudicial, to avoid the obviously futile attempt to ‘unring the
bell’ when highly prejudicial evidence is offered then stricken at
trial…They allow for a more careful consideration of evidentiary
issues than would take place in the heat of battle during trial” ; See
also Eckert v. Superior Court (1999) 69 Cal. App. 4th 262, 266, “A
motion in limine reflects a litigant's trial strategy and serves to
shape the legal and factual issues to be presented during trial, the
motion is commonly viewed as the "first step" in the trial process.”
2.
ONLY ADMISSIBLE, RELEVANT AND PROBATIVE EVIDENCE
MAY BE USED BY THE PROSECUTION TO DETERMINE BAC.
Pursuant to Cal.Evid.Code §352, this court must exclude any
evidentiary instrument which does not meet this test must be excluded
at trial, as their prejudicial effect outweighs any
probative value. Under Cal.Evid.Code §351, only evidence which is
relevant may be considered by this court, meaning that it must relate
in some matter at issue and tend in reason to prove or disprove any
disputed fact of consequence to the determination of the action. Its’
probative value also must outweigh its prejudicial effect. People v.
Rodriguez (1999) 20 Cal. 4th 1, 9. Cal.Evid.Code §352 codifies this
courts authority to exclude such evidence
“The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
admission will:
(a) Necessitate undue consumption of time, or; create substantial
danger of undue prejudice, of confusing the issues, or of misleading
the jury.”
Before the Prosecution may use any evidentiary vehicle or document, it
must pass this test of relevancy and having probative value to the
actual issues before the jury, or it is absolutely inadmissible at
trial. See Hicks v. Reis (1943) 21 Cal. 2d 654, 660, “The trier of
facts may not indulge in the inference when that inference is rebutted
by clear, positive and uncontradicted evidence of such a nature that
it is not subject to doubt in the minds of reasonable men. The trier
of facts may not believe in impossibilities.”
Cal.Evid.Code §210 establishes the relevancy of admissible evidence
must reasonably prove or disprove a disputed fact. “Relevant evidence
means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove
or disprove any disputed fact that is of consequence (material) to the
determination of the action.” If the probative value of any such
evidence is substantially outweighed by the probability that its
admission will create a substantial danger of undue prejudice, it may
well confuse and mislead the jury. Burns v. 20th Century Ins. Co.
(1992) 9 Cal.App. 4th 1666, 1673-1674.
The probative value of the evidence depends on its materiality and
necessity. People v. Stanley (1967) 67 Cal.2d 812, 818. This Court
must balance the evidence against inferences to be drawn from it, and
determine whether the evidence goes to main issue or only a collateral
issue, and whether the evidence is necessary. Kessler v. Gray (1978)
77 Cal.App.3d 284, 291. Evidence that is offered for an issue which is
not included in the pleadings is also irrelevant and must be
excluded. Fuentes v. Tucker (1947) 31 Cal.3d 1, 7. Similarly,
evidence of a collateral factor matter also must be excluded, because
it does not afford any reasonable presumption or inference as to a
principle fact or matter in dispute, and will only lead to confusion
and a waste of the courts time. Wade v. Southwest Bank (1962) 211
Cal.App.2d 392, 407. It is well-settled that it is within the trial
court's discretion to exclude collateral evidence offered for
impeachment purposes, as well as to exclude evidence that is
cumulative, confusing or misleading. People v. Redmond (1981) 29
Cal.3d 904, 913, Cal.Evid.Code §352.
Further, any unfounded allegations amounting to speculative and
impermissible opinion which lacks foundation, and has no basis in
fact, is therefore inadmissible. Cal.Evid.Code §§ 400-403, 700-702,
800. It is proper to exclude evidence (even that to be used for
impeachment purpose ) when it would consume considerable time and
divert the attention of the jury from the case at hand. People v.
Bittaker (1989) 48 Cal.3d 1046, 1097. This is particularly true when
the Prosecution attempt to use diversionary tactics as “evidence “ and
attempt to create a “trial within a trial”. Hinson v. Clairmont
Community Hospital (1990) 218 Cal.App. 3d 1110, 1114. There is also a
risk that a jury may consider collateral evidence for the truth of its
content, and where that danger exists, the evidence may be excluded.
People v. Coleman (1985) 38 Cal.3d 69, 93.
As will be set forth more fully infra, this court must exclude from
consideration by the jury any HGN test information used for the
purpose of establishing BAC at the time of the DEFENDANT's detention
because it is irrelevant, highly prejudicial, and has no probative
value.
3.
THE DEFENDANT OBJECTS TO THE PROSECUTION'S USE OF
HGN TO ESTABLISH THE BAC OF THE DEFENDANT.
The Prosecution has indicated that it will attempt to bring forth to
the jury evidence of the HGN test administered on the Defendant at his
detention to establish what his BAC was at the time of driving. This
is not only novel, it is irrelevant, has no probative value, and is
highly prejudicial evidence that should properly be excluded from the
jury's purview.
“Nystagmus is an involuntary rapid movement of the eyeball, which may
be horizontal, vertical, or rotatory. [Citation.] An inability of the
eyes to maintain visual fixation as they are turned from side to side
(in other words jerking or bouncing) is known as horizontal gaze
nystagmus, or HGN. [Citation.]” People v. Ojeda (1990) 225
Cal.App.3d 404, 406. The HGN test has a DUI suspect following a
stimulus with the eyes. The officer observes smooth pursuit, nystagmus
prior to a 45 degree angle, and nystagmus at maximum deviation. The
theory supporting HGN testing is that intoxicated persons exhibit HGN
and that a field test conducted by a police officer can identify the
condition. People v. Joehnk (1995) 35 Cal.App.4th 1488, 1494. But it
has its limitations as well, as pointed out by the court in Joehnk.
“First, there is no claim HGN testing alone can determine whether a
suspect is under the influence of alcohol nor determine a
blood-alcohol level. Such testing is a component of a three-part field
sobriety test which itself is only part of an officer's total
observations of a suspect and is only one basis for an officer's
opinion concerning intoxication. Neither is it claimed that HGN is
caused only by alcohol intoxication. The proponents of the technique
readily concede nystagmus can be caused by a number of conditions and
toxins. In light of these concessions, we tend to agree with the
following observation by the Iowa Supreme Court: “[T]he principal
obstacle to the admissibility of the horizontal gaze nystagmus test
may be its pretentiously scientific name.” Id. at 1504, citing to
State v. Murphy, supra, 451 N.W.2d at p. 156.)
It is well-settled that the HGN test has a high baseline error and a
dose/response relationship that varies greatly according to whether
the subject’s blood alcohol concentration is rising or falling.
National Highway Traffic Safety Administration (NHTSA) research found
that Horizontal Gaze Nystagmus (HGN) may be evident when a person’s
BAC reaches approximately .06%. (National Highway Traffic Safety
Administration, U.S. Department of Transportation, Psychophysical
Tests for DWI Arrests, No. DOT-HS-802-424 (June 1977), note 21, at p.
7.)
a)
HGN is Not a Proper Tool for Evaluating the BAC of a DUI Suspect, and
Its Use in the Case at Bar Should Be Excluded Absent a Contrary
Finding at a Cal.Evid.Code §402 Hearing
The Defendant objects to the introduction of any evidence concerning
HGN without first conducting a Cal.Evid.Code §402 hearing concerning
the technique the officer used in administering the test. As set
forth by the California Supreme Court in advising state prosecutors,
procedure does matter in that the scientific test must meet all three
prongs of Kelly-Frye. See People v. Kelly (1977) 17 Cal.3d 24, 30-32,
overruled in part by statute pursuant to Cal.Evid.Code §351.1 as noted
in People v. Wilkinson (2004) 33 Cal.4th 821, 842-843. To satisfy
Kelly, new forms of scientifically based evidence must satisfy a
three-part test. “First, the party offering the evidence must show
that the technique is ‘ “sufficiently established to have gained
general acceptance in the particular field in which it belongs.” ’
[Citation.] Second, the proponent of the evidence must establish that
‘the witness furnishing such testimony’ is ‘properly qualified as an
expert to give {such} an opinion....’ [Citation.] Third, the proponent
must demonstrate that ‘correct scientific procedures were used in the
particular case.’ [Citations.]” People v. Diaz (1992) 3 Cal.4th 495,
526.
In People v. Leahy (1999) 8 Cal.4th 587, the high court held that the
results of an HGN test are admissible only if the technique and the
scientific basis for it satisfy the requirement of Kelly, Id. at
591-592. Further, in People v. Veneges (1998) 18 Cal.4th 47, the
California Supreme Court described the type of foundational proof
required for admissibility of scientific evidence:
“The Kelly third prong inquiry involves further scrutiny of
methodology or technique that has already passed muster under the
central first prong of the Kelly test, in that general acceptance of
its validity by the relevant scientific community has been
established. The issue of inquiry is whether the procedures utilized
in the case at hand complied with that technique. Proof of that
compliance does not necessitate expert testimony anew from a member of
the relevant scientific community directed at evaluating the
technique’s validity or acceptance in that community. It does,
however, require that the testifying expert understand the technique
and its underlying theory, and be thoroughly familiar with the
procedures that were in fact used in the case at bar to implement the
technique.” Id. at 81.
In other words, the Supreme Court requires that the correct procedure
be used to obtain the results sought to be introduced as evidence. In
People v. Loomis (1984) 156 Cal.App.3d Supp. 1, a police officer
offered an opinion of a defendant's blood-alcohol level based on his
observation of the angle of onset of lateral nystagmus. The court
found HGN to be a new form of scientific evidence and subjected it to
the Kelly test of admissibility. The court found no evidence of the
reliability or general scientific acceptance of the HGN test as a
means of determining blood alcohol levels and held the evidence
inadmissible. Id. at pp. 5-7.
Thus, it is inadmissible as evidence and also with argument that
defects only affect the weight of consideration. Most importantly, HGN
evidence cannot be used to establish BAC without meeting the Kelly
standards as set forth in Leahy, supra, 8 Cal.4th at 591-592.
Defendant hereby challenges this predicate showing of the HGN evidence
and demands a Cal. Evid.Code § 402 hearing.
b)
Any Use of HGN Should Be Limited to What the Test Actually Shows, Not
Inferences There from.
If this court does allow some use of the HGN test evidence, the court
should limit the testimony concerting what, if anything, this test
shows because it is only useful when combined with other tests. People
v. Joehnk, supra, 35 Cal.App.4th 1507-1508. The presence of HGN cues
or clues show that a person may have consumed alcohol, but cannot be
used to establish an alcohol level or level of impairment.
Further, Defendant objects to any testimony suggesting that eyesight
is impacted as the result of HGN as violative of Kelly-Frye.
III.
CONCLUSION
Based upon the foregoing, the Defendant hereby requests a hearing
pursuant to Cal. Evid.Code § 402 to resolve each of the above-noted
issues.
Dated: April _____, 2010 CALIFORNIA LEGAL TEAM
__________________________
OKORIE OKOROCHA
Attorney for Defendant _
