Kansas Supreme Court: "HGN DUI Field Sobriety Test like Ouija Board, Magic 8 Ball"
In Wichita v. Molitor, no. 104,940 the Kansas Supreme Court reversed the DUI conviction of a Wichita man in a case that could impact DUI cases statewide.
William J. Molitor was pulled over in February of 2009 after leaving a Wichita bar during a saturation or 'Wolf Pack' DUI patrol in Wichita Kansas for failing to signal a right-hand turn when turning out of a parking lot. Police Officer Diaz said Molitor hit the curb with his tire as he was pulling over, had watery and bloodshot eyes and that the officer detected a strong odor of alcohol coming from within the vehicle. However Molitor did not slur his speech or have any trouble providing his license and insurance when requested. He also did not have any difficulty exiting the vehicle when asked to do so nor did he have any trouble with his balance.
Officer Diaz then ran Mr. Molitor through the three NHTSA-approved Field Sobriety Tests, starting with the Horizontal Gaze Nystagmus Test (HGN). The HGN test is used in both Kansas and in Missouri to detect nystagmus or involuntary 'jerking or bouncing' of the eyes as they are moved or held still in response to a stimulus held and moved by the officer such as a finger or penlight.
After the HGN test which the officer noted as him having failed, Mr. Molitor was then given instructions for the Walk and Turn and One-Leg Stand Field Sobriety Tests, both of which he successfully completed. Molitor was then asked to take a Preliminary Breath Test at the scene which indicated he was over the legal limit. He was then arrested and subsequently took an Intoxilyzer 8000 test at the police station which indicted a blood alcohol level of .09, over the legal limit of .08.
Molitor appealed his conviction, arguing the Officer had based his probable cause for the PBT request and DUI arrest on the HGN results, which Kansas Courts have consistently held do not meet scientific reliability standards in Kansas. Molitor's argument was that because the HGN is inadmissible in Kansas, and he passed the other two tests, the officer did not have probable cause to ask him to take the Preliminary breath test, and everything else that followed, including the .09 test at the station, should be thrown out. The Supreme Court agreed.
In overturning Mr. Molitor's DUI conviction, Justice Lee A. Johnson asked "Should a court allow the officer to base reasonable suspicion upon the Ouija Board test results? Of course not. And at this point in the state of Kansas, the HGN test has no more credibility than a Ouija Board or Magic 8 Ball. To change that circumstance, the state needs to prove the legitimacy of the test." "Here the subjective observations which might suggest to Officer Diaz that Molitor was illegally intoxicated were offset by the objective indications that he was not. Indeed, if Molitor had failed the objectively scored SFSTs (Field Sobriety Tests), one would suspect that the State would be arguing that the officer's trained observations were corroborated by the psychomotor testing."
The dissenting opinion argued that even without the HGN results, Officer Diaz had plenty of other reasons to suspect that Molitor was illegally driving while under the influence of alcohol. The rest of the Court disagreed, "It is not unlawful to simply drink and drive," the justices said.
