                                         In the
                        Missouri Court of Appeals
                                 Western District
STATE OF MISSOURI,                            )
                                              )
               Respondent,                    )   WD76144
                                              )
v.                                            )   OPINION FILED: January 6, 2015
                                              )
GARY PRESTON BROWNING JR.,                    )
                                              )
                Appellant.                    )

               Appeal from the Circuit Court of Clay County, Missouri
                      The Honorable Anthony R. Gabbert, Judge

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                              and Gary D. Witt, Judge


       Gary Browning ("Browning") appeals his conviction of driving while intoxicated

as an aggravated offender following a jury trial. He complains that there was insufficient

foundation to permit the admission of Sergeant Joe Kantola's ("Sgt. Kantola") testimony

about the results of administration of the horizontal gaze nystagmus ("HGN") test.

Browning also questions the adequacy of the approved verdict director for driving while

intoxicated, MAI-CR 3d 331.02, though he concedes that the trial court committed no

error in tendering the instruction. Because any error in the admission of the results of the

HGN test is not prejudicial in light of other evidence supporting the verdict as to which
Browning has no complaint, and because Browning asserts no error in the trial court's use

of MAI-CR 3d 331.02, we affirm.

                                 Factual and Procedural Background

         Browning does not challenge the sufficiency of the evidence to sustain his

conviction. Viewed in the light most favorable to the conviction,1 the following evidence

was presented to the jury:

         On Sunday, April 22, 2007 at around 10:15 p.m., Sgt. Kantola of the Kearney

Police Department was stopped in an unmarked patrol vehicle at a red light at the

intersection of 92 Highway and Interstate 35. Sgt. Kantola was in the right lane, and a

minivan was stopped next to him in the left lane. Sgt. Kantola observed a black Jeep

approaching the minivan quickly from behind, without appearing to slow down. The

Jeep then came to a sudden stop.                  When the light turned green, all three vehicles

proceeded through the intersection. The Jeep passed Sgt. Kantola, following the minivan

too closely. The Jeep suddenly entered Sgt. Kantola's lane without using its turn signal.

The Jeep accelerated past the minivan, then suddenly went back into the left lane without

using its turn signal. At the time, the Jeep was traveling over the posted 35 mile-per-hour

speed limit. The Jeep then turned east onto 33 Highway without using its turn signal.

         Because Sgt. Kantola had witnessed multiple traffic offenses, he followed the

Jeep, and activated his emergency lights. The Jeep slowed down, but did not stop

immediately.


         1
         "We view the facts in the light most favorable to the jury's verdict." State v. Jackson, 410 S.W.3d 204,
209 n.3 (Mo. App. W.D. 2013).

                                                         2
        Sgt. Kantola approached the Jeep.       Browning was driving, and was the sole

occupant. Before Browning spoke, Sgt. Kantola could smell an "overpowering" odor of

alcohol from Browning's breath. When Browning did speak, his speech was slurred.

Browning's eyes were glassy and bloodshot. His pupils were dilated. Sgt. Kantola asked

Browning if he had been drinking. Browning responded that he "drank some earlier."

Browning was asked to get out of the car. As Browning did so, he stumbled and used the

door to support himself.

        Sgt. Kantola administered several field sobriety tests. He administered the HGN

test, the walk-and-turn test, and the one-legged stand test.     According to Kantola,

Browning showed all six signs of intoxication during the HGN test, and also swayed

while balancing during the test. Browning showed four of the eight signs of intoxication

during the walk-and-turn test, with two being required to demonstrate intoxication.

Browning showed all four signs of intoxication during the one-legged-stand test.

Browning also submitted to a portable breath test, which was positive for the presence of

alcohol. At that point, Browning was placed under arrest. He began pleading with Sgt.

Kantola, "Please don't do this to me."

        After being transported to the police station and advised of the implied consent

law, Browning agreed to submit to a breath test. Browning's blood alcohol content was

.103.

        Browning was convicted of driving while intoxicated following a jury trial. The

court imposed a four-year sentence, but suspended the sentence and placed Browning on

probation. Browning filed this timely appeal.

                                            3
                                          Analysis

       Browning's first point on appeal argues that the trial court abused its discretion in

admitting Sgt. Kantola's testimony regarding the results of the HGN test over Browning's

objection. Browning claims that an adequate foundation was not established to permit

admission of the testimony. Browning raised this same issue in a pre-trial motion to

suppress which was denied by the trial court following an evidentiary hearing.

       We review a trial court's decision regarding the admission of evidence for an

abuse of discretion. State v. Prince, 311 S.W.3d 327, 335 (Mo. App. W.D. 2010). We

will not find an abuse of discretion unless a trial court's ruling is clearly against the logic

of the circumstances and is so arbitrary and unreasonable as to indicate a lack of careful

consideration. State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997). We will not

reverse a conviction based on the erroneous admission of evidence unless prejudice is

demonstrated, established by proof that the admission of the evidence was "outcome-

determinative." State v. Adams, 350 S.W.3d 864, 866 (Mo. App. E.D. 2011) (citing State

v. Johnson, 207 S.W.3d 24, 42 (Mo. banc 2006)). "'A finding of outcome-determinative

prejudice expresses a judicial conclusion that the erroneously admitted evidence so

influenced the jury that, when considered with and balanced against all of the evidence

properly admitted, there is a reasonable probability that the jury would have acquitted but

for the erroneously admitted evidence.'" Adams, 350 S.W.3d at 866 (quoting Johnson,

207 S.W.3d at 42).

       Here, Browning only challenges about the trial court's admission of Sgt. Kantola's

testimony regarding the results of the HGN field sobriety test. Browning does not

                                              4
challenge the admission of Sgt. Kantola's testimony regarding Browning's erratic driving

and about the physical signs of intoxication he observed immediately upon approaching

Browning including the smell of alcohol, bloodshot and glassy eyes, dilated pupils,

slurred speech, and problems with balance. Browning does not challenge the admission

of Sgt. Kantola's testimony that Browning acknowledged he had been drinking.

Browning does not challenge the admission of Sgt. Kantola's testimony regarding the

results of the walk-and-turn and the one-legged stand tests, the results of the portable

breath test, or the results of the breath test which demonstrated that Browning had a blood

alcohol content of .103, well in excess of the presumptive level of intoxication set forth in

section 577.037.1.2           Browning does not challenge the admission of Sgt. Kantola's

testimony about Browning's plea that he not be arrested.

         Given all of this unchallenged evidence, the sufficiency of which to support his

conviction Browning admits, there is no reasonable probability that the jury would have

acquitted Browning but for the trial court's admission of Sgt. Kantola's testimony about

the results of the HGN test. Thus, even assuming the trial court committed error in the

admission of this evidence, that error is not prejudicial as it is not outcome-determinative,

and the error will not support the reversal of Browning's conviction.3


         2
           All statutory references as to RSMo 2000 as supplemented.
         3
           Though we need not decide whether the trial court erroneously admitted Sgt. Kantola's testimony about the
results of the HGN test, Browning's challenge to the testimony raises a legitimate concern. The HGN test, unlike
other standard field sobriety tests, is an exclusively scientific test. "Nystagmus is the involuntary jerking of the
eyes." State v. Hill, 865 S.W.2d 702, 704 (Mo. App. W.D. 1993) (overruled on other grounds by State v. Carson,
941 S.W.2d 518, 520 (Mo. banc 1997). Nystagmus, though involuntary, has many potential causes. The ability to
reliably differentiate between these causes to permit the conclusion that nystagmus suggests intoxication requires
scientific testing. It is for this reason that proponents of the HGN test were required to establish the test's scientific
reliability under the Frye test. Hill, 865 S.W.2d at 704 (citing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923)).

                                                            5
          Because of its inherently scientific nature, Missouri courts have conditioned the admissibility of testimony
about the HGN test on establishing two foundational requirements: (1) that the officer administering the test is
adequately trained on how to administer and interpret the test, and (2) that the test is properly administered. Hill,
865 S.W.2d at 704 (emphasis added); State v. Ostdiek, 351 S.W.3d 756, 771 (Mo. App. W.D. 2011). "[A]dequate
training consists of a minimum of eight hours of police training on how to administer and interpret the HGN test."
Hill, 865 S.W.2d at 704; State v. Rose, 86 S.W.3d 90, 98 (Mo. App. W.D. 2002).
          "Proper administration of the HGN test requires (1) that the test be conducted by requiring a suspect to
follow an object such as a finger, pencil or pen with his eyes as the object is moved laterally along a horizontal plane
to the periphery of the suspect's vision, and (2) that the indicators be interpreted and scored, one eye at a time, as
follows: (a) the person administering the test is to observe how smoothly a suspect follows the object as it is moved
to the periphery of the suspect's vision. Jerking of the eyes rather than the ability to follow the object smoothly
indicates the influence of alcohol; (b) the person administering the test is to observe whether or not a distinctive
jerking occurs in the eyes at the maximum point of deviation when the eye moves to the far periphery of vision.
Distinctive jerking is indicative of the influence of alcohol; and (c) the person administering the test is to observe the
angle at which nystagmus occurs. Nystagmus occurring at or before the eye is looking at a 45-degree angle is
indicative of the influence of alcohol. One point is scored for eye movement indicative of alcohol influence for each
of the three tests for each eye. The highest possible score is six points, with a score of four or more points
constituting substantial evidence that a suspect is intoxicated." Hill, 865 S.W.2d at 704; see also Rose, 86 S.W.3d at
98-99.
          When Hill was decided in 1993, the court gauged the "scientific reliability" of the HGN test based on the
testimony of an expert who explained studies conducted "on behalf of the National Highway and Traffic Safety
Administration (NHTSA) to determine the most accurate field sobriety tests available to police officers and to
standardize the procedures for those tests." 865 S.W.2d at 704 (emphasis added). One of the tests identified was
the HGN test. Id. Hill's articulation of the means by which foundation for admission of the HGN test results could
be established was drawn directly from the testimony of the expert who explained these studies. Id.
          The standardized procedures for administering the HGN test are thus specified in NHTSA's DWI Detection
& Standardized Field Sobriety Testing Manual ("NHTSA Manual"). The NHTSA Manual was first published in
1992, and has been revised several times over the years. However, with respect to the HGN test, the NHTSA
Manual has always required: (i) that each eye be separately tested; and (ii) that each eye be tested twice. The three
measurement points for the HGN test identified in Hill can each yield a "point," with a total of three points possible
for each eye. However, at least four points are required to suggest intoxication, necessarily requiring both eyes to be
implicated by the testing. Rose, 86 S.W.3d at 98 ("Where . . . a driver scores four or more points on the HGN, there
is substantial evidence that the driver is intoxicated."). Plainly, the scientific steps for administering the HGN test
address how to properly gauge and calculate points--the accumulation of which is integral to the test's ability to
reliably gauge intoxication.
          Sgt. Kantola testified about the manner in which he administered the HGN test. His testimony indicated
that at least with respect to the smooth pursuit measurement aspect of the HGN test, he did not test each eye
separately as directed by the NHTSA Manual. His testimony also conceded that he did not perform any of the
measurement components of the test twice. Sgt. Kantola testified that he held his finger about 10 inches in front of
Browning's face when the NHTSA Manual requires a distance of 12 to 15 inches. Sgt. Kantola claimed that he
administered the test the way he had been trained in 1993, and hinted that the NHTSA Manual had been changed
since that time. However, it appears plain from Sgt. Kantola's testimony that his administration of the HGN test did
not comply in at least some respects with standards that have been a part of every version of the NHTSA Manual.
          "Where the administering officer 'failed to substantially comply with proper testing procedures,' most
jurisdictions would 'treat this issue as affecting the weight of HGN evidence rather than its admissibility.'" Rose, 86
S.W.3d at 99, n.6 (citing Ballard v. State, 955 P.2d 931, 941 (Alaska App. 1998)). "In Missouri, however, proper
administration of the HGN test is a foundational requirement under Hill." Id. (citing Duffy v. Director of Revenue,
966 S.W.2d 372, 379 (Mo. App. W.D. 1998)).
          In Duffy, the officer's testimony indicated that he did not know how to score the HGN test. 966 S.W.3d at
378. The Department of Revenue argued that the officer conducted the "mechanics" of the test correctly such that
his lack of exact knowledge as to how to score the test was somehow irrelevant. Id. We rejected that argument,
noting that "probable cause refers to the quality and quantity of proof tending to establish a certain thing." Id.
(citation omitted). "Obviously, a scientific test as to intoxication, which is improperly administered . . . , does not
tend to prove intoxication under a probable cause or reasonable doubt standard." Id. Accordingly, the trial court in
Duffy erred in admitting the testimony for lack of foundation.

                                                            6
         Browning's first point on appeal is denied.

         Browning's second point on appeal does not claim trial court error, but instead

questions whether the time is ripe for the Supreme Court to re-evaluate the adequacy of

MAI-CR 3d 331.02, the approved verdict director for driving while intoxicated. At trial,

Browning tendered a modified verdict director that added an essential element, 4 and a

definition of "intoxicated condition,"5 neither of which appear in MAI-CR 3d 331.02.

The tendered verdict director was refused. Browning's point relied on acknowledges that

the trial court did not commit error in refusing the tendered instruction.6

         Browning queries, however, whether it would be "prudent" to define the term

"intoxicated condition" in the approved verdict director,7 citing dicta to that effect in

State v. Brightman, 388 S.W.3d 192 (Mo. App. W.D. 2012). He asks in his Brief: "Has

the time now come to reconsider this issue?" [Appellant's Brief, p. 25] Browning


          Given the holdings in Rose and Duffy, Sgt. Kantola's concessions about his administration of the HGN test
raise legitimate concerns about whether he "properly administered" the HGN test, and thus about whether the trial
court erred in admitting the test results. The State countered Browning's claim of error by relying heavily on the
holding in State v. Burks, 373 S.W.3d 1, 6-7 (Mo. App. S.D. 2012), where the Southern District held that
"challenges raised . . . to the procedures followed by [an officer administering the HGN test] go to its weight, rather
than to admissibility of the test results." We question that holding. If applied in every case where an officer has
failed to "properly administer" the HGN test, the holding in Burks will effectively swallow and negate the State's
burden to establish the foundational requirement that the HGN test was properly administered. It is true, as Burks
notes, that Hill did not expressly state that "the admission of HGN tests requires testimony from the officer that all
of the NHTSA guidelines were followed during the administration of [the] test." 373 S.W.3d at 6. However, there is
no question that the NHTSA standards, and expert testimony about those standards, formed the basis for Hill's
conclusion that the HGN test was "scientifically reliable," and for Hill's imposition of the burden on the State to
establish that the test has been "properly administered" as a condition to its admissibility. There is no source to
consult for determining whether the HGN test has been "proper administered" other than the NHTSA Manual. We
believe, therefore, that consistent with the holdings in Duffy and Rose, material deviations from the testing
procedures set forth in the NHTSA Manual will require a trial court to deny admission of HGN test results.
          4
            Browning's tendered verdict director added as an essential element the jury was required to find that "his
ability to drive was impaired." This is not an element of the offense of driving while intoxicated as described in
section 577.010.1.
          5
            Browning sought to define "intoxicated condition" as "under the influence of alcohol."
          6
            In State v. Schroeder, 330 S.W.3d 468, 475 (Mo. banc 2011), the Missouri Supreme Court considered and
rejected the argument that the term "intoxicated condition" in MAI-CR 3d 331.02 should be defined.
          7
            Browning's point on appeal does not address the fact that his tendered verdict director also sought to add
an essential element to the approved verdict director.

                                                          7
acknowledges that binding precedent on this issue relegates his query to the exclusive

province of the Supreme Court. [Appellant's Brief, p. 3] See State v. Schroeder, 330

S.W.3d 468, 475 (Mo. banc 2011) (holding that "ordinary persons understand what is

meant by the term[] 'intoxicated condition," negating any need for a definition in MAI-

CR 3d 331.02).

       Because Browning claims no error in the trial court's use of the approved verdict

director for driving while intoxicated, there is nothing for this court to review. Rule

84.04(d)(1).

       Browning's second point on appeal is denied.



                                          __________________________________
                                          Cynthia L. Martin, Judge


Mitchell, Presiding Judge, joins in the majority opinion.
Witt, Judge, joins in the majority's result and concurs in separate opinion.




                                             8
                                        In the
                        Missouri Court of Appeals
                                 Western District
STATE OF MISSOURI,                           )
                                             )
                Respondent,                  )   WD76144
                                             )
v.                                           )   OPINION FILED: January 6, 2015
                                             )
GARY PRESTON BROWNING JR.,                   )
                                             )
                Appellant.                   )

                               CONCURRING OPINION

      I concur with the Majority opinion in its holding that there was no prejudice in this

case so as to warrant reversal. I further fully concur in the Majority opinion's assertion

that the admission of the HGN test results in this case was error. I write separately,

however, because the error in admitting the HGN test results in Browning's case sharply

illustrates rampant misunderstanding and weaknesses in the administration of the HGN

test, calling into serious question the reliability of the results when not properly

administered.

Additional Factual History

      Browning raised the issue of the improper admission of the field sobriety tests,

including the HGN, in a motion to suppress. At the suppression hearing, Sgt. Kantola,

the arresting officer, indicated that he had been an officer for eighteen years and had
worked for the Kearney Police Department for ten years. In 1993, he completed the

course through the National Highway Traffic Safety Administration ("NHTSA"). Sgt.

Kantola also completed the following training: advanced DWI detection in 1996; drug

recognition expert "preschool" and drug recognition expert school, both in 2004; drug

recognition expert recertification in 2005; drug expert recertification in March 2007.

Then, after Browning's April 2007 arrest and shortly before the hearing on the motion to

suppress, in 2008, Sgt. Kantola completed another recertification. In spite of attending

all of this training, it became clear throughout his testimony that Sgt. Kantola had very

little grasp of the proper way to administer and score the field sobriety tests.

       Sgt. Kantola testified that he understood that if any element of the standardized

field sobriety test is changed, the validity of results is compromised. As mentioned in the

Majority Opinion and as explained more below, one of the standardized field sobriety

tests is the HGN. Sgt. Kantola understood that if a test is not administered in compliance

with NHTSA guidelines, the results may be inaccurate. However, he acknowledged at

the suppression hearing that he had never bothered to even read the NHTSA manual,

which was admitted into evidence and which was the source of his training.

"DWI Detection & Standardized Field Sobriety Testing" Manual

       As the Majority Opinion points out, in order for the HGN test to be admissible in

court, (1) the officer must be properly trained and (2) the test must be properly

administered. State v. Hill, 865 S.W.2d 702, 704 (Mo. App. W.D. 1993) (overruled on

other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997)). The full title of the

NHTSA manual that Sgt. Kantola admitted never reading is the "DWI (Driving While

                                              2
Intoxicated) Detection & Standardized Field Sobriety Testing" Manual ("NHTSA

manual" or the "manual"). It is a product of the International Association of Chiefs of

Police ("IACP") and the NHTSA and is published by the U.S. Department of

Transportation. Since the mid-1970s, the NHTSA, with the help of the law enforcement

community (including the IACP), has conducted extensive research, resulting in the

development of a battery of three standardized field sobriety tests to assist officers in

detecting impaired drivers.         DWI (DRIVING WHILE INTOXICATED) DETECTION &

STANDARDIZED FIELD SOBRIETY TESTING app. § B (2006 ed.). Those tests are the HGN,

the walk-and-turn, and the one-leg stand. Together, the three tests are known as the

Standardized Field Sobriety Tests ("SFSTs").      In 1992, the NHTSA and IACP, in

conjunction with police officers, instructors, curriculum specialists, and training

administrators from several states reached a consensus on minimum standards for the

conduct of the three SFSTs. Id. Training on how to properly conduct the tests is

included in the NHTSA course, DWI Detection and Standardized Field Sobriety Testing.

Id.

       The manual emphasizes the necessity of teaching officers everything in the

manual:

       All of the training objectives are considered appropriate and essential for
       police officers who wish to become proficient at detecting evidence of DWI
       and at describing that evidence in written reports and verbal testimony. All
       of the subject matter is considered necessary to achieve those objectives.
       All of the learning activities are necessary to ensure that the participants
       master the subject matter.

Id. at 7 (Introductory material).


                                             3
         The manual also notes that the "course is 'flexible' in that it can easily be

expanded since it does not cover all dimensions of DWI enforcement." Id. The manual

also states that "It is critical to note that the purpose of this training is to ensure that

participants become proficient in administering and interpreting standardized field

sobriety tests." Id.

         The core curriculum consists of sixteen sessions that span twenty-two hours and

forty-five minutes over three to five days. Id. at 5-6. At the end of the training, a written

examination over the SFSTs is administered, and participants must receive a grade of

eighty percent or higher on the written examination to "successfully complete the

training." Id. at 15. In addition, participants also must demonstrate proficiency in

administering and interpreting the SFSTs, which includes administering the complete test

battery at least once, in an instructor's presence, without deleting or erroneously

performing any of the critical administrative elements of the tests before the participants

are deemed to have successfully completed the training.1 Id. The three SFSTs are the

only scientifically validated and reliable field sobriety tests. Id. at app. § A-5; § VIII-4.

HGN Testing

         Sgt. Kantola's misunderstanding of the HGN test, the only exclusively scientific

test of the three in the battery, illustrates why it is perhaps the least understood of the

field sobriety tests. By way of overview, "[n]ystagmus is the involuntary jerking of the

eyes." Hill, 865 S.W.2d at 704. Under the HGN test, a person's eye movements are

         1
           Merely showing that the person giving the test has attended a certain number of hours of training is
insufficient to establish that the person is "properly trained." There must be evidence that the person attended the
training and passed the written and practical application examinations at the end of the training.

                                                           4
tested as a means of determining whether he or she is under the influence of alcohol. Id.

When administered properly by someone with sufficient training, the HGN test has been

deemed scientifically reliable under the Frye2 test. Hill, 865 S.W.2d at 704.

         While Hill set forth the basic elements of the test, I write separately to set forth the

scientific requirements for the proper administration of the HGN test and the pitfalls of its

improper administration. Hill, 865 S.W.2d at 704.

         According to the NHTSA manual, the involuntary jerking of nystagmus occurs as

the eyes gaze to the side.                DWI (DRIVING WHILE INTOXICATED) DETECTION &

STANDARDIZED FIELD SOBRIETY TESTING § VIII-5. In addition to being involuntary, the

person is generally unaware that it is happening and is powerless to stop it or control it.

Id. Alcohol and certain other drugs cause HGN. Id.

         Independent of alcohol and other drugs, the manual addresses other circumstances

under which the eyes will jerk involuntarily and can impact the reliability of this field

sobriety test. There are three general categories of nystagmus: vestibular, neural, and

pathological. Id. at § VIII-6 - VIII-11. Vestibular nystagmus is caused by movement or

action in the vestibular system, which is a sense located in the inner ear that provides

information to the brain and consequently to the eyes about position and movement of the

head to maintain orientation and balance of the body.3 Id. Neural activity can result in


         2
           Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
         3
           There are four types of vestibular nystagmus described in the manual: (1) Rotational, which occurs when
a person is spun around or rotated rapidly, causing the fluid in the inner ear to be disturbed. (2) Post rotational,
which occurs when the person stops spinning such that the fluid in the inner ear remains disturbed for a short period
of time and the eyes continue to jerk. (3) Caloric, which occurs when fluid motion in the canals of the vestibular
system is stimulated by temperature as by putting warm water in one ear and cold in the other. (4) Positional
alcohol (PAN), which occurs when there is a foreign fluid, such as alcohol, that alters the specific gravity of the
blood in unequal concentrations in the blood and vestibular system. This type causes the vestibular system to

                                                          5
nystagmus; HGN is included in this category. 4 Id. Nystagmus also can be caused by

certain pathological disorders, which include brain tumors and other brain damage or

some diseases of the inner ear.5 Id.

         The manual instructs an officer on what to observe in assessing possible medical

impairment, including pupil size, resting nystagmus, and tracking ability. Id. at § VIII-

11. Pupil size will be affected by some medical conditions or injuries. Id. If the two

pupils are "distinctly different" in size, the subject may have a prosthetic eye or suffer

from a head injury or neurological disorder. Id. A subject may have resting nystagmus,

which is jerking as the eyes look straight ahead. Id. It is an infrequent condition and

usually indicates "a pathology" or high doses of a drug such as a Dissociative Anesthetic

like PCP. Id. The person administering the test is to check for "tracking ability," which

will be affected by certain medical conditions or injuries involving the brain. Id. at §

respond to gravity in certain positions, resulting in nystagmus. There are two subsets of PAN. PAN 1 occurs when
the alcohol concentration in the blood is greater than the inner ear fluid and occurs when the blood-alcohol content is
increasing, and PAN-2 occurs when the alcohol concentration in the inner ear fluid is greater than in the blood. An
example of PAN-2 is the spinning of the room when a person lies down after consuming alcohol, which occurs
while the blood-alcohol level is decreasing. Id. at § VIII-6.
           4
             There are multiple types of neural activity that the manual states can cause nystagmus. (1) Optokinetic
nystagmus, which occurs when the eyes fixate on an object that suddenly moves out of sight or when the eyes watch
sharply contrasting moving images. Examples of optokinetic nystagmus include watching strobe lights, rotating
lights, or rapidly moving traffic in close proximity, but the HGN test will not be influenced by the optokinetic
nystagmus if administered properly. (2) Physiological nystagmus is a natural nystagmus that keeps the sensory cells
of the eye from tiring. This is the most common type of nystagmus. It happens to all of us, all of the time, and it
produces extremely minor tremors and jerks that are generally too small to be seen with the naked eye. (3) Gaze is
listed in the manual as a third type of nystagmus under neural activity. The manual says there are multiple types of
gaze nystagmus: a) horizontal gaze (HGN), which is the main type tested for in field sobriety testing, and b) vertical
gaze. Horizontal gaze is the meat of the training course, and the manual states that it "is the observation of the eyes
for Horizontal Gaze Nystagmus that provides the first and most valid test in the standardized field sobriety testing
battery." The presence of HGN can indicate use of certain other drugs, including depressants, inhalants, "October
14," Dissociative Anesthetics such as PCP and its analogs. Vertical gaze (VGN) is an involuntary jerking of the
eyes (up and down) occurring as the eyes are held at maximum elevation. VGN can be associated with high doses
of alcohol and certain other drugs. The drugs that cause VGN are the same ones that cause HGN. There is no drug
that will cause VGN that does not cause HGN. If VGN is present and HGN is not present, it could be a medical
condition. For VGN to be recorded, it "must be definite, distinct and sustained for a minimum of four seconds at
maximum elevation." Id. at § VIII-8 - VIII-11.
           5
             The nystagmus caused by pathological disorders is extremely rare in the driving population, and persons
suffering from these disorders are rarely able to drive. Id. at § VIII-11.

                                                          6
VIII-12. If the two eyes do not track together, the possibility of a serious medical

condition or injury is present. Id. Passing a stimulus6 across both eyes is how to check

for this. Id. If the eyes do not track (i.e., if one eye tracks the stimulus but the other fails

to move or lags behind the stimulus), there is a possibility of a neurological disorder. Id.

If a person has sight in both eyes, but the eyes do not track together, there is also a

possibility that the person is suffering from an injury or illness affecting the brain. Id.

         After the section on "medical impairment," the manual lists ten steps in

administering the HGN test, followed by "three clues" with lengthy descriptions, and then

instructions on administering the Vertical Gaze Nystagmus ("VGN"), which is the tenth

step of the HGN test. Here is a summary of the ten steps for properly administering the

HGN test:

         Step I:            Check for Eyeglasses.                 Eyeglasses may impede the suspect's

peripheral vision and may impede the officer's ability to observe the eye carefully. It

does not matter whether the suspect can see the stimulus with "perfect clarity" as long as

the suspect can see the stimulus at all because nystagmus is not a vision test. Id. at §

VIII-13.

         Step II:           Verbal Instructions.             The officer is to give the suspect verbal

instructions that include the following: a) put feet together, hands at side; b) keep head

still; c) look at the stimulus; d) follow the movement of the stimulus with the eyes only;

e) keep looking at the stimulus until told the test is over. These are the major points that


         6
          The stimulus may be the eraser on a pencil, the tip of a penlight, the tip of a finger or other small object.
VIII-17. It is best to use a stimulus that contrasts with the background. Id.

                                                           7
"must be" conveyed. It is important that the subject keeps the head still and follows the

stimulus with the eyes alone. Id.

       Step III:     Positioning the Stimulus. The officer is to position the stimulus

approximately twelve to fifteen inches in front of the suspect's nose and slightly above

eye level. The stimulus should be in this position for each of the steps of the HGN test.

Maintaining the stimulus slightly above eye level keeps the eyes open wide so the clues

can be seen more easily. Id. at § VIII-14, § VIII-17.

       Step IV:      Equal Pupil Size and Resting Nystagmus. The officer is to check

for both of these factors. At this point resting nystagmus or unequal pupil size may be

observed and the officer should note any display of resting nystagmus or unequal pupil

size. These are not clues of intoxication, but are indicators of an injury or other physical

condition which may call into question whether the HGN test should be administered to

this subject. Id. at § VIII-12, § VIII-14.

       Step V:       Tracking. The officer is next to check for equal tracking. He or she

should move the stimulus from center to far right, to far left, and back to center

(approximately two seconds). Both eyes should track the stimulus at an equal rate. Once

again the lack of equal tracking is not a clue of intoxication, but may call into question

whether the HGN test should be administered to this subject. Id.

       Step VI:      Lack of Smooth Pursuit. The officer is next to check the left eye

for lack of the "smooth pursuit" clue. The stimulus should be moved from the center all

the way out to the right as a steady speed that takes approximately two seconds. Then the

stimulus should be moved back to the center maintaining a steady speed of approximately

                                             8
two seconds. The eye should be moved out as far as it will go to the side. If the eye is

observed to jerk while moving,7 that is one clue. The officer should next check the right

eye in the same fashion, moving the stimulus from center all the way to the left. This is

to be repeated for each eye and compared. The officer is to make at least two complete

passes in front of the each eye to check this clue. If the jerking is observed in both eyes,

this is two clues. Common mistakes are holding the stimulus too close or too far from the

eye, moving the stimulus too slowly or too quickly, failing to move the stimulus far

enough to the side to take the eye to maximum deviation and curving downward or

around with the stimulus. Id. at § VIII-14, § VIII-20 - VII-21.

        Step VII:         Distinct and Sustained Nystagmus at Maximum Deviation. The

officer is next to check the left eye for distinct and sustained nystagmus at maximum

deviation and then repeat with the right eye and compare. Once again, the stimulus

should start at the center and then move to the side until no white is showing in the corner

of the eye. The stimulus should be held out at the side for a minimum of four seconds.

The nystagmus or jerking must be "definite, distinct and sustained in order to score this

clue." If the jerkiness is distinct and sustained for a minimum of four seconds in the left

eye, that is one clue. The officer is to check each eye "at least twice" for this clue. If

there is only slight nystagmus or if it is not sustained for at least four seconds, this clue

is not present and cannot be counted. Common mistakes in judging this clue are failure

to bring the eye to maximum deviation (no white showing) and failure to hold the


        7
        This jerking is described as a marble rolling across sandpaper or a windshield wiper bouncing on a dry
window. An unimpaired subject's eye will move like a marble rolling across a smooth polished surface.

                                                        9
stimulus steady for at least four seconds once maximum deviation is reached. If a

subject's eye is held at maximum deviation for more than thirty seconds, then fatigue

nystagmus may begin. Fatigue nystagmus is not a clue of impairment. Id. at § VIII-14 -

§ VIII-15, § VIII-22 - VIII-25.

       Step VIII:    Onset of Nystagmus Prior to 45 Degree. The officer is to check

the left eye for the "onset of nystagmus prior to 45 degree" clue and then repeat for with

the right eye and compare. The officer is to hold the stimulus at center and slowly and

steadily move it toward the side. It should take about four seconds to move the stimulus

from center to the edge of the subject's shoulder. This must be done slowly to detect the

actual point of onset of nystagmus. If the jerking begins and continues prior to forty-five

degrees, that is one clue. When the jerking is observed, the officer is to stop the stimulus

at that point to see if the jerking continues. If the jerking is not clearly evident when the

stimulus is held steady, the point of onset has not been properly detected. If the jerking

stops when the stimulus stops, the officer is to continue moving the stimulus to the side

until the jerking begins again. Once the point of onset is properly found, it is then

necessary to determine if that point is before forty-five degrees. Forty-five degrees can

be difficult to ascertain. There should be some white still showing at the corner of the

eye and the stimulus should be approximately even with or slightly beyond the edge of

the subjects shoulder. If nystagmus does not start before forty-five degrees or if it fails

to continue jerking when the stimulus is stopped, this clue is not present. Again, each

eye is to be checked at least twice for this clue. Common mistakes include failing to

check for white in the corner of the eye once the point of onset is determined, failure to

                                             10
check the alignment with the subjects shoulder once the point of onset is determined, and

tending to stop short of forty-five degrees. Id. at § VIII-15, § VIII-26 - VIII-30.

       Step IX:      Total the clues. Three is the maximum number of clues possible for

each eye, such that six is the total maximum number of clues possible for both eyes. A

suspect's performance may not be "exactly identical" in both eyes. Id. at § VIII-15. "As

BAC increases, many people first show inability of smooth pursuit, then show distinct

jerkiness at maximum deviation, and finally show an onset within 45 degrees." Id.

"However, that may not be true in all cases: the clues may develop in virtually any

sequence, in any particular suspect." Id. A total of four out of the possible six clues is an

indicator of intoxication. Id. at § VIII-33. "It is possible that all three clues definitely

will be found in one eye, while only two (or sometimes only one) will show up in the

other eye. It is always necessary to check both eyes, and to check them independently."

Id. at § VIII-15. "It is unlikely that someone under the influence of alcohol will behave

totally different [sic]. Thus, if one eye shows all three clues distinctly while the other eye

gives no evidence of nystagmus, the person may be suffering from one of the

pathological disorders covered previously." Id. at § VIII-16. The HGN test should

never be used to give an opinion as to a specific BAC level. Id. at § VIII-25.

       Step X:       Check for Vertical Gaze Nystagmus.

       Although VGN was not examined in the research that led to the SFSTs and the

results are not included in the score for the HGN test, testing for VGN is the final step in

administering the HGN test. The officer is to start with the stimulus in the same position

set forth above and raise it until the subject's eyes are elevated as far as possible without

                                             11
moving the head.       Then the officer is to hold the stimulus in that position for

approximately four seconds. Next, the officer is to watch for jerking at maximum

elevation. For VGN to be recorded, it "must be definite, distinct and sustained for a

minimum of four seconds at maximum elevation." Id. at § VIII-15 - § VIII-16.

       The presence of HGN can indicate use of certain other drugs besides alcohol,

including depressants, inhalants. Id. at § VIII-16. VGN can be associated with high

doses of alcohol and certain other drugs. Id. at § VIII-35. If VGN is present and HGN is

not present, it could be a medical condition and not a sign of alcohol or drug impairment.

Id. at § VIII-10.

       ***

       I fully concur with the Majority Opinion that the holding in State v. Burks, 373

S.W.3d 1, 6-7 (Mo. App. S.D. 2012) is questionable and should not be followed. If not

properly administered, the HGN test loses its scientific reliability and becomes irrelevant

to the issues before the court.

       Because of Sgt. Kantola's failure to properly administer the HGN test, the State

failed to lay a proper foundation, and this evidence should have been excluded.

       However, because Browning did not establish prejudice, I concur with the result

reached by the Majority.



                                          __________________________________
                                          Gary D. Witt, Judge




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