Hulse v. State, Department of Justice

96-541

No. 96-541

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 108

MARY IRIS HULSE,

Petitioner and

Appellant,

v.

STATE OF MONTANA,

DEPARTMENT

OF JUSTICE, MOTOR VEHICLE

DIVISION,

Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Stillwater,

The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Gary R. Thomas, Thomas Law Office, Red Lodge, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Tammy K. Plubell,

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Assistant Attorney General, Helena, Montana; Douglas Howard,

Columbus Town Attorney, Columbus, Montana

Heard: November 18, 1997

Submitted on Briefs: November 18,

1997

Decided: May 5, 1998

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court

¶1 Defendant Mary Hulse (Hulse) appeals from the Findings of Fact,

Conclusions of Law and Order of the Thirteenth Judicial District Court,

Stillwater County, denying her petition to reinstate her driving privileges after

those were suspended for her refusal to take a breath test pursuant to § 61-8-402,

MCA, as well as the court's denial of her motion in limine to exclude

evidence concerning the results of field sobriety tests conducted prior to her

arrest for driving while under the influence of alcohol. We affirm.

¶2 The sole issue raised on appeal is whether the District Court erred when

it denied Hulse's petition to reinstate her driver's license.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On March 23, 1996, at 7:30 p.m., Officer Patrick Kennedy was

patrolling eastbound on Pike Avenue, one of the main streets in Columbus,

Montana, when he observed Hulse drive away from the New Atlas Bar.

Although it was dark outside, Hulse proceeded westbound on Pike Avenue

without her vehicle headlights on. Hulse and Officer Kennedy passed each

other about one and one-half blocks later, and Hulse continued driving without

her headlights on. In response, Officer Kennedy activated his overhead lights,

made a U-turn and drove behind Hulse for approximately two blocks, but

Hulse did not stop. Instead Hulse turned onto another street and Officer

Kennedy activated his siren. Hulse drove for another one-half block before

she turned into the driveway of her friend, a passenger in Hulse's vehicle.

Officer Kennedy pulled in behind Hulse and positioned his vehicle to block

the driveway.

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¶4 Officer Kennedy approached Hulse, identified himself, and informed

her he had stopped her because she was driving without her headlights on after

dark. Hulse responded that she did have her headlights on. Officer Kennedy

asked her to produce her driver's license, registration and proof of insurance.

Hulse produced her registration and after several attempts produced her proof

of insurance. When Officer Kennedy again asked her for her driver's license,

Hulse became agitated. After Officer Kennedy requested her driver's license

for the third time, Hulse produced it.

¶5 During this time, Officer Kennedy smelled the odor of alcohol on

Hulse's breath and asked her if she had been drinking. Hulse first responded

in the negative but later stated she drank one eight-ounce glass of beer.

Officer Kennedy asked Hulse to get out of her car and step down to the

sidewalk to perform some field sobriety tests. At this time, Officer Kennedy

noticed that Hulse's eyes were bloodshot and that she had difficulty walking.

He administered three field sobriety tests (the Horizontal Gaze Nystagmus

(HGN), the one-legged stand, and the walk-and-turn) and Hulse performed

poorly on the tests. After completing the field sobriety tests, Officer Kennedy

arrested Hulse for driving under the influence of alcohol (DUI), handcuffed

her, and helped her into the back seat of the patrol car.

¶6 Officer Kennedy transported Hulse to the sheriff's office and read her

Montana's Implied Consent Law. Officer Kennedy asked Hulse to submit to

a breath test, but Hulse refused. As a result, pursuant to § 61-8-402, MCA

(1995), Officer Kennedy seized Hulse's driver's license. On March 26, 1996,

pursuant to § 61-8-403, MCA (1995), Hulse filed a petition in the Thirteenth

Judicial District Court, Stillwater County, asking the court to review the

suspension of her driver's license and requesting the court reinstate her driver's

license until the court held her license reinstatement hearing. The District

Court entered an order temporarily reinstating Hulse's driver's license and set

a hearing date for May 20, 1996.

¶7 On May 15, 1996, Hulse filed a motion in limine to exclude Officer

Kennedy's testimony concerning the results of the field sobriety tests Hulse

performed prior to her arrest, including the Horizontal Gaze Nystagmus

(HGN) test. Specifically, Hulse sought to exclude evidence of the field

sobriety tests as constituting an illegal search and the HGN test for failing to

meet the Daubert criteria for admission of scientific evidence. On May 17,

1996, the State filed an objection to Hulse's motion in limine, arguing that

evidence of these field sobriety tests was admissible under Montana law. The

District Court did not issue a written order on Hulse's motion in limine.

However, on May 20, 1996, at the beginning of the license reinstatement

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hearing, the court ruled that "[f]or the record, the Motions in Limine are

absolutely denied. They are completely inappropriate for a hearing of this

nature[.]"

¶8 Consequently, in addition to testifying about the facts and

circumstances surrounding his initial stop and subsequent arrest of Hulse,

Officer Kennedy testified as to his administration and evaluation of the field

sobriety tests Hulse performed prior to her arrest for driving while under the

influence of alcohol. He testified that after completing the basic training

course at the Montana Law Enforcement Academy where he received 40 hours

of training in the administration and evaluation of the HGN, the one-legged

stand, and the walk-and-turn field sobriety tests, he began working as a

patrolman for the town of Columbus, Montana, on July 5, 1995. Furthermore,

Officer Kennedy described each test and explained in detail his administration

of these tests on Hulse as well as his evaluation that she performed poorly on

each of the three field sobriety tests.

¶9 On May 29, 1996, after considering the hearing testimony, the District

Court entered its findings of fact, conclusions of law and order denying

Hulse's petition to reinstate her driver's license and lifting the stay on the

suspension of her license. From this order, Hulse appeals.

DISCUSSION

¶10 Did the District Court err when it denied Hulse's petition to

reinstate her driver's license?

¶11 Pursuant to § 61-8-403(4)(a), MCA (1995), in a driver's license

reinstatement proceeding, a district court is limited to considering whether:

(i) a peace officer had reasonable grounds to believe that

the person had been driving or was in actual physical control of

a vehicle upon ways of this state open to the public while under

the influence of alcohol, drugs, or a combination of the two;

(ii) the person was placed under arrest; and

(iii) the person refused to submit to the test or tests.

¶12 The reasonable grounds requirement set forth in § 61-8-403(4)(a)(i),

MCA (1995), is the equivalent of particularized suspicion as defined

in § 46-5-401, MCA. Seyferth v. State (1996), 277 Mont. 377, 384, 922 P.2d 494, 498

(citing Anderson v. State (1996), 275 Mont. 259, 263, 912 P.2d 212, 214).

Section 46-5-401, MCA, provides:

Investigative stop. In order to obtain or verify an account of

the person's presence or conduct or to determine whether to

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arrest the person, a peace officer may stop any person or vehicle

that is observed in circumstances that create a particularized

suspicion that the person or occupant of the vehicle has

committed, is committing, or is about to commit an offense.

"When a police officer seizes a person, such as in a brief investigatory stop,

the Fourth Amendment right against unreasonable searches and seizures

applies." Bauer v. State (1996), 275 Mont. 119, 125, 910 P.2d 886, 889.

Therefore, because an investigatory stop must be justified by an objective

manifestation that the individual stopped "has committed, is committing, or is

about to commit an offense," we have adopted a two-part test to evaluate

whether a police officer had sufficient cause to stop an individual. First, the

State must establish objective data from which an experienced officer can

make certain inferences. Second, the State must establish a resulting suspicion

that an occupant of a vehicle is, or has been, engaged in wrongdoing or was

a witness to criminal activity. Seyferth, 277 Mont. at 384, 922 P.2d at 498;

State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296. Therefore,

whether particularized suspicion exists is a question of fact dependent on the

totality of the circumstances. Anderson, 275 Mont. at 263, 912 P.2d at 214

(citing State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540, 542-43).

¶13 Next, to determine whether a person was placed under arrest, § 61-8-403(4)(a)(ii),

MCA (1995), we must consider whether an officer had the right

to make the arrest. Grinde v. State (1991), 249 Mont. 77, 80, 813 P.2d 473,

475. An officer has the right to make an arrest if the arrest is supported by

probable cause. Section 46-6-311, MCA. Probable cause for an arrest exists

when the facts and circumstances within the arresting officer's personal

knowledge are sufficient to warrant a reasonable person to believe that the

suspect has committed an offense. Jess v. State Dept. of Justice, MVD (1992),

255 Mont. 254, 261, 841 P.2d 1137, 1141. Additionally, particularized

suspicion for a stop can ripen into probable cause to arrest based on the

occurrence of facts or incidents after the stop. Jess, 255 Mont. at 261, 841

P.2d at 1141. That is, "an officer who makes an investigative stop is not

precluded from making an arrest based on observations made during the stop."

Anderson, 275 Mont. at 265, 912 P.2d at 215.

¶14 Finally, if an officer had particularized suspicion which ripened into

probable cause to arrest an individual for DUI, the court must determine

whether the person refused to submit to a blood alcohol test or tests,

§ 61-8-403(4)(a)(iii), MCA (1995). Because a presumption of correctness attaches

to the State's act of suspending or revoking a driver's license, the driver bears

the burden of proving that the suspension or revocation of a driver's license

was improper. Jess, 255 Mont. at 259-60, 841 P.2d at 1140. We review a

denial of a petition for reinstatement of a driver's licence to determine whether

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the district court's findings of fact are clearly erroneous and whether its

conclusions of law are correct. Anderson, 275 Mont. at 262, 912 P.2d at 214

(citing Bauer, 275 Mont. at 122, 910 P.2d at 888).

¶15 Hulse argued in the District Court that the second factor under § 61-8-403(4)(a),

MCA (1995), was not satisfied because her arrest was not supported

by probable cause. As indicated in her notice of appeal, Hulse appeals from

the District Court's denial of her petition for reinstatement of driver's license.

However, within her appellate briefs, Hulse more specifically argues the

impropriety of the District Court's denial of her motion in limine to exclude

evidence of the field sobriety test results. Accordingly, we will also review

the District Court's denial of Hulse's motion in limine for abuse of discretion.

As we have previously stated:

"The purpose of a motion in limine is to prevent the

introduction of evidence which is irrelevant, immaterial, or

unfairly prejudicial." Accordingly, the authority to grant or

deny a motion in limine "rests in the inherent power of the court

to admit or exclude evidence and to take such precautions as are

necessary to afford a fair trial for all parties." Thus, we will not

overturn a district court's grant [or denial] of a motion in limine

absent an abuse of discretion.

City of Helena v. Lewis (1993), 260 Mont. 421, 425-26, 860 P.2d 698, 700

(citations omitted). Furthermore, "[t]his Court will uphold the decision of a

district court, if correct, regardless of the lower court's reasoning in reaching

its decision." Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387

(citations omitted).

¶16 In the case at bar, Hulse does not dispute that she refused to submit to

a blood alcohol test. However, she does argue that the suspension of her

license was improper because her arrest was invalid due to a lack of probable

cause. See § 61-8-403(4)(a)(ii), MCA (1995). In this regard, Hulse contends

that the District Court abused its discretion when it summarily denied her

motion in limine which sought to exclude evidence of the field sobriety tests

as constituting an illegal search and the HGN test for failing to meet the

Daubert criteria for admission of scientific evidence. Ultimately, Hulse argues

that the District Court erred when it denied her petition to reinstate her driver's

license.

¶17 The State responds that the District Court's summary denial of Hulse's

motion in limine was proper because a license reinstatement hearing is civil in

nature, and, therefore, the exclusionary rule does not apply. Additionally, the

State contends the motion in limine was not the appropriate mechanism for

attacking the foundation of testimony regarding HGN test results.

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Alternatively, the State argues that even if the motion in limine was

appropriate, the District Court still reached the right result in denying the

motion based on current Montana law.

¶18 We will not address the State's arguments concerning the applicability

of the exclusionary rule in civil license reinstatement hearings and the

impropriety of using a motion in limine to attack the foundation of testimony

regarding HGN test results because these arguments are raised for the first

time on appeal. See State v. Fuhrmann (1996), 278 Mont. 396, 404, 925 P.2d

1162, 1167 (citing State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d

1013, 1016). Rather, we will address the merits of Hulse's arguments that the

District Court abused its discretion in summarily denying her motion in limine.

¶19 Hulse first argues that field sobriety tests, such as the HGN, the

one-legged stand, and the walk-and-turn, which she performed, constitute a search

and seizure of an individual within the meaning of both Article II, Section 11

of the Montana Constitution and the Fourth Amendment to the United States

Constitution and thereby implicate an individual's right to privacy under

Article II, Section 10 of the Montana Constitution. Consequently, Hulse

contends that these warrantless searches will only be constitutional if

supported by probable cause coupled with exigent circumstances. Hulse

asserts that the information Officer Kennedy had at the time he administered

the field sobriety tests was insufficient to provide him with probable cause to

believe she was driving under the influence of alcohol. Therefore, Hulse

argues the tests violated her constitutional right to be free from unreasonable

searches and seizures, and, thus, rendered her subsequent arrest invalid as

well. As such, Hulse requests that this Court reverse our decision in State v.

Purdie (1984), 209 Mont. 352, 680 P.2d 576, wherein we held that the

administration of field sobriety tests does not constitute a search under the

Montana or federal constitutions. In turn, Hulse suggests we adopt the rule

that field sobriety tests constitute a search requiring probable cause as adopted

in State v. Nagel (Or. 1994), 880 P.2d 451, and People v. Carlson (Colo.

1984), 677 P.2d 310.

¶20 The State first responds that we should not disrupt current Montana

case law holding that field sobriety tests do not constitute a search. See

Purdie, 209 Mont. 352, 680 P.2d 576. However, the State asserts in the

alternative that if this Court determines that field sobriety tests do constitute

a search requiring probable cause, the more stringent standard of probable

cause was satisfied at the time Officer Kennedy requested Hulse perform the

field sobriety tests. Furthermore, the State suggests that if this Court reverses

its holding in Purdie and determines that field sobriety tests constitute a search

under the Montana and federal constitutions, we should adopt particularized

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suspicion, not probable cause, as the appropriate standard for the permissible

administration of field sobriety tests.

¶21 Article II, Section 10 of the Montana Constitution provides that "[t]he

right of individual privacy is essential to the well-being of a free society and

shall not be infringed without the showing of a compelling state interest."

Furthermore, Article II, Section 11 of the Montana Constitution provides:

Searches and seizures. The people shall be secure in their

persons, papers, homes and effects from unreasonable searches

and seizures. No warrant to search any place, or seize any

person or thing shall issue without describing the place to be

searched or the person or thing to be seized, or without probable

cause, supported by oath or affirmation reduced to writing.

Likewise, the Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.

¶22 In State v. Carlson, we defined a "search" as the use of some means of

gathering evidence, such as a visual examination, which infringes upon a

person's reasonable expectation of privacy. State v. Carlson (1982), 198

Mont. 113, 119, 644 P.2d 498, 501 (citing United States v. Hartley

(U.S.D.C.Fl. 1980), 486 F.Supp. 1348, 1354). Therefore, to determine

whether an unlawful search has occurred we must first consider whether the

government has intruded into an area where an individual has a reasonable

expectation of privacy. State v. Scheetz (Mont. 1997), 950 P.2d 722, 724, 54

St.Rep. 1286, 1288. "Where no reasonable expectation of privacy exists, there

is neither a 'search' nor a 'seizure' within the contemplation of the Fourth

Amendment of the United States Constitution or Article II, Section 11 of the

Montana Constitution." Scheetz, 950 P.2d at 724-25, 54 St.Rep. at 1288. We

apply a two-part test to determine whether an individual has a constitutionally

protected right of privacy. First, the individual must have either a subjective

or an actual expectation of privacy. Second, the individual's expectation of

privacy must be viewed by society as reasonable. State v. Solis (1984), 214

Mont. 310, 314, 693 P.2d 518, 520.

¶23 In Purdie, we held that a field sobriety test, as a mere observation of a

person's physical behavior, does not constitute a search because an individual

lacks any reasonable expectation of privacy in his physical behavior. Purdie,

209 Mont. at 355-56, 680 P.2d at 578. A police officer stopped Purdie as a

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part of traffic control at a vehicular accident site. When the officer spoke with

Purdie, he smelled alcohol and thereafter observed Purdie drive erratically

from the accident site. As a result, the officer pursued Purdie and stopped

him. The officer then requested that Purdie exit his vehicle and perform a

field sobriety test. Thereafter, the officer arrested Purdie for driving under the

influence. Purdie, 209 Mont. at 353, 680 P.2d at 577. In response to Purdie's

motion to suppress certain evidence, the District Court ruled that the results of

the field sobriety test, a handwriting specimen and the opinions and

observations of police officers concerning Purdie's sobriety were admissible.

Purdie, 209 Mont. at 354, 680 P.2d at 577.

¶24 After a jury found him guilty of driving under the influence, Purdie

appealed, arguing in part that the district court erred in admitting the results of

the field sobriety test. Specifically, Purdie asserted that the field sobriety test

constituted an illegal warrantless search under the Montana and federal

constitutions. Purdie, 209 Mont. at 353-54, 680 P.2d at 578. We disagreed,

holding that the administration of field sobriety tests constitutes a mere

observation of an individual's physical behavior, and, therefore, does not

constitute a search under the Montana or federal constitutions:

[T]his field sobriety test failed to constitute a search protected

by either the federal or Montana Constitutions. The officer

merely observed appellant's behavior which hardly amounts to

an intrusion into his reasonable expectation of privacy. If

observed behavior occurs in a place where the defendant

knowingly exposes it, then no Fourth Amendment violation

occurs.

Purdie, 209 Mont. at 355, 680 P.2d at 578. We explained that like voice and

handwriting samples, an individual lacks any reasonable expectation of

privacy in his physical behavior. Purdie, 209 Mont. at 355-56, 680 P.2d at

578.

¶25 In addressing search and seizure issues in contexts other than those

involving field sobriety tests, we have explained that Montanans are afforded

broader privacy protections under Article II, Section 10 of the Montana

Constitution than under the Fourth Amendment to the United States

Constitution or Article II, Section 11 of the Montana Constitution. See State

v. Nelson (1997), 283 Mont. 231, 241-42, 941 P.2d 441, 448. In Nelson, we

held that while medical records were not historically protected under the

Fourth Amendment's prohibition against unreasonable searches and seizures,

these records were protected under Montana's separate constitutional guarantee

of privacy because Article II, Section 10 encompassed not only "autonomy

privacy" but confidential "informational privacy" as well. Nelson, 283 Mont.

at 241-42, 941 P.2d at 448. Therefore, we further held that to give the right

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to informational privacy any meaning the right must "at a minimum,

encompass the sanctity of one's medical records." Nelson, 283 Mont. at 242,

941 P.2d at 448.

¶26 We explained that, unlike telephone company billing records, medical

records fall within the "zone of privacy" protected by Article II, Section 10 of

the Montana Constitution. Nelson, 283 Mont. at 242, 941 P.2d at 448. We

pointed out the Montana Legislature has recognized that "health care

information is personal and sensitive information that if improperly used or

released may do significant harm to a patient's interests in privacy and health

care or other interests." Nelson, 283 Mont. at 242, 941 P.2d at 448 (quoting

§ 50-16-502(1), MCA). We concluded that medical records are

"quintessentially 'private' and deserve the utmost constitutional protection."

Nelson, 283 Mont. at 242, 941 P.2d at 448.

¶27 Nonetheless, we further explained that an individual's privacy rights

under Article II, Sections 10 and 11 of the Montana Constitution are not

absolute. Nelson, 283 Mont. at 243, 941 P.2d at 449. Likening an

investigative subpoena which seeks to discover protected medical records or

information to a search warrant, we held that the strictures of the Fourth

Amendment and Article II, Section 11 of the Montana Constitution would be

satisfied only upon a showing of probable cause that an offense was

committed and medical information relating to the offense is in the possession

of the person or institution to whom the subpoena is directed. Nelson, 283

Mont. at 243-44, 941 P.2d at 449.

¶28 In light of our recent decision in Nelson recognizing that Article II,

Section 10 of the Montana Constitution encompasses "informational privacy,"

we agree with Hulse that it is appropriate at this time to re-examine our

holding in Purdie that field sobriety tests do not constitute a search because an

individual lacks any reasonable expectation of privacy in his physical

behavior. In contrast to our holding in Purdie, the Colorado Supreme Court

in People v. Carlson, stated that an individual has a constitutionally protected

privacy interest in the "coordinative characteristics" exposed by the

administration of field sobriety tests. Carlson, 677 P.2d at 317.

A roadside sobriety test involves an examination and evaluation

of a person's ability to perform a series of coordinative physical

maneuvers, not normally performed in public or knowingly

exposed to public viewing, for the purpose of determining

whether the person under observation is intoxicated.

Carlson, 677 P.2d at 316.

¶29 The court held that to be constitutionally valid field sobriety tests may

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only be administered if an officer had probable cause to arrest a driver for

driving under the influence or when a driver voluntarily consents. Carlson,

677 P.2d at 317-18. The court, however, pointed out that an individual driving

a vehicle has no legitimate expectation of privacy in his physical traits and

demeanor that are in plain sight of a police officer during a valid traffic stop.

Carlson, 677 P.2d at 316. The court explained that an officer's observation of

an individual's gait upon exiting the vehicle and walking to the rear of the

vehicle does not differ from observation of an individual's general physical

characteristics, such as height and weight. Carlson, 677 P.2d at 316.

¶30 Similarly, the Oregon Supreme Court held in Nagel that field sobriety

tests were searches under both Article I, Section 9 of the Oregon Constitution

and under the Fourth Amendment to the United States Constitution. Nagel,

880 P.2d at 457-59. In concluding that these tests were searches under the

Fourth Amendment, the Court explained that the administration of field

sobriety tests ran counter to an individual's reasonable expectation of privacy

for two reasons. First, an individual must perform certain maneuvers not

normally performed in public, and, thus, the tests expose to view certain things

not otherwise obvious through passive observation of an individual. Nagel,

880 P.2d at 457-58.

Unlike the quality of one's voice or one's handwriting, people do

not regularly display that type of behavior to the public--there

is no reason to believe that motorists regularly stand alongside

a public road reciting the alphabet, count backward from 107,

stand upon one leg while counting from 1001 to 1030, or walk

a line, forward and back, counting steps and touching heel to

toe.

Nagel, 880 P.2d at 457.

Second, an individual has a reasonable expectation of privacy in the

information an officer obtains from the field sobriety tests. The court

explained that like the chemical analysis of urine, "a field sobriety test may

reveal evidence of equally private facts about an individual, including whether

the individual is illiterate, has alzheimer's disease, or suffers from multiple

sclerosis." Nagel, 880 P.2d at 458 (citing Skinner v. Railway Labor

Executives' Assn. (1989), 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103

L.Ed.2d 639).

¶31 The court concluded that because constitutionally protected privacy

interests are implicated in both the process of conducting the field sobriety

tests and in the information disclosed by the tests, these tests constitute a

search under the Fourth Amendment to the United States Constitution. Nagel,

880 P.2d at 458. The court held that based on the specific facts in Nagel, the

field sobriety tests performed were reasonable; they were administered upon

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probable cause to arrest Nagel and under exigent circumstances due to the

evanescent nature of evidence of impairment resulting from blood alcohol.

Nagel, 880 P.2d at 459. The court declined to address the constitutionality of

Oregon's statutory scheme which authorized the administration of field

sobriety tests upon less than probable cause. Nagel, 880 P.2d at 459.

¶32 We recognize that law enforcement officers use field sobriety tests as

investigative tools to assist them in discovering and arresting persons driving

under the influence of alcohol. We agree with the Oregon Supreme Court in

Nagel that, as such, field sobriety tests create a situation in which police

officers may observe certain aspects of an individual's physical and

psychological condition which would not otherwise be observable. See Nagel,

880 P.2d at 455. Just as medical information may be revealed by subpoenaing

a person's medical records or through the chemical analysis of a person's urine,

so too is certain information concerning an individual's physical and

psychological condition potentially revealed through the administration of

field sobriety tests. See Nelson, 283 Mont. at 242-44, 941 P.2d at 448-49, and

Nagel, 880 P.2d at 457-58. As such, this information falls within the zone of

privacy protected by Article II, Section 10 of the Montana Constitution. In

contrast, we point out, as did the Colorado Supreme Court in Carlson, that an

individual has no reasonable expectation of privacy in his physical

characteristics or behavior such as handwriting, speech, height, weight, gait,

appearance or smell. See Carlson, 677 P.2d at 316. Therefore, an officer's

observation of such physical traits during a valid traffic stop does not

constitute a search. See Carlson, 677 P.2d at 316.

¶33 For these reasons, we hold that field sobriety tests are not "merely

observations" of a person's physical behavior, but, rather, constitute a search

under the Fourth Amendment to the United States Constitution and,

independently of the federal constitution, under Article II, Section 11 of the

Montana Constitution because an individual's constitutionally protected

privacy interests are implicated in both the process of conducting the field

sobriety tests and in the information disclosed by the tests. See Nagel, 880

P.2d at 458. Consequently, Purdie, 209 Mont. 352, 680 P.2d 576, and any

other Montana case that has held that field sobriety tests are "merely

observations" of a person's physical behavior are hereby overruled to that

extent.

¶34 Because an individual has a legitimate privacy interest in both the

process of conducting the field sobriety tests and in the information revealed

by the tests, this privacy interest may not be invaded absent a compelling state

interest. Art. II, Sec. 10, Mont.Const. We have explained that "[a] compelling

state interest 'exists where the state enforces its criminal laws for the benefit

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and protection of other fundamental rights of its citizens.' " Solis, 214 Mont.

at 319, 693 P.2d at 522 (quoting State ex rel. Zander v. District Court (1979),

180 Mont. 548, 556, 591 P.2d 656, 660). Montana has a compelling interest

to remove drunk drivers from our roadways. This compelling interest is

embodied in both § 61-8-401, MCA (prohibiting driving while under the

influence of alcohol or drugs), and § 61-8-406, MCA (making driving with an

alcohol concentration of 0.10 or more per se illegal), as well as §§ 61-8-714,

-722 and -723, MCA (1995) (providing escalating penalties for repeat

offenders of §§ 61-8-401 and -406, MCA). Yet even with this compelling

state interest, the State may not invade an individual's privacy unless the

procedural safeguards attached to the right to be free from unreasonable

searches and seizures are met. See Solis, 214 Mont. at 319, 693 P.2d at 522.

¶35 Warrantless searches are per se unreasonable under the Fourth

Amendment and Article II, Section 11 of the Montana Constitution; however,

both federal and state law recognize certain specific exceptions to the warrant

requirement. An investigatory stop is such an exception. State v. Collard

(Mont. 1997), 951 P.2d 56, 60, 54 St.Rep. 1366, 1368. In Terry v. Ohio, the

United States Supreme Court ruled that an officer's stop and search of an

individual may be constitutionally permissible even in the absence of probable

cause. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

Similarly, in Gopher, we held that "when a trained police officer has a

particularized suspicion that the occupant of a vehicle is or has been engaged

in criminal activity, or witness thereto, a limited and reasonable investigatory

stop and search is justified." Gopher, 193 Mont. at 194, 631 P.2d at 296. See

also § 46-5-401, MCA (permitting an officer to make an investigative stop on

the basis of particularized suspicion).

¶36 To determine whether a search conducted within an investigatory stop

is reasonable, and, therefore, constitutionally permissible, we must balance the

state's interest in conducting the search against the level of intrusion into an

individual's privacy that the search entails. The United States Supreme Court

in Terry held:

[W]here a police officer observes unusual conduct which leads

him reasonably to conclude in light of his experience that

criminal activity may be afoot and that the persons with whom

he is dealing may be armed and presently dangerous, where in

the course of investigating this behavior he identifies himself as

a policeman and makes reasonable inquiries, and where nothing

in the initial stages of the encounter serves to dispel his

reasonable fear for his own or others' safety, he is entitled for

the protection of himself and others in the area to conduct a

carefully limited search of the outer clothing of such persons in

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an attempt to discover weapons which might be used to assault

him.

Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d 889, 911.

¶37 Relying on the rationale of Terry, the Arizona Supreme Court held in

State v. Superior Court that, although searches pursuant to the Fourth

Amendment, field sobriety tests may be justified by a police officer's

particularized suspicion that an individual was driving while intoxicated.

Refusing to adopt the probable cause standard required by the Colorado

Supreme Court in Carlson, the Arizona court explained:

[T]he threat to public safety posed by a person driving under the

influence of alcohol is as great as the threat posed by a person

illegally concealing a gun. If nothing in the initial stages of the

stop serves to dispel the highway patrol officer's [particularized]

suspicion, fear for the safety of others on the highway entitles

him to conduct a "carefully limited search" by observing the

driver's conduct and performance of standard, reasonable tests

to discover whether the driver is drunk. The battery of roadside

sobriety tests is such a limited search. The duration and

atmosphere of the usual traffic stop make it more analogous to

a so-called Terry stop than to a formal arrest.

State v. Superior Court (Ariz. 1986), 718 P.2d 171, 176 (citation omitted).

Many other jurisdictions have similarly held that probable cause is not

required before a law enforcement officer administers field sobriety tests. See

State v. Taylor (Fla. 1995), 648 So.2d 701; State v. Lamme (Conn.App. 1989),

563 A.2d 1372; State v. Gray (Vt. 1988), 552 A.2d 1190; State v. Stevens

(Iowa 1986), 394 N.W.2d 388, cert. denied, 479 U.S. 1057 (1987); State v.

Golden (Ga.App. 1984), 318 S.E.2d 693; State v. Wyatt (Haw. 1984), 687 P.2d

544; State v. Little (Me. 1983), 468 A.2d 615.

¶38 We agree with the sound rationale of the Arizona Supreme Court in

Superior Court that public safety is equally threatened by a person driving

under the influence of alcohol as by a person illegally concealing a gun. See

Superior Court, 718 P.2d at 176. Because we recognize that field sobriety

tests, like investigative stops, are important investigative tools used by police

officers to determine whether probable cause for arrest exists, we also

acknowledge that to require probable cause that an individual has been driving

under the influence before allowing police officers to administer field sobriety

tests would defeat the very purpose of these tests. Therefore, while we agree

with the holdings in Carlson and Nagel that field sobriety tests constitute a

search, we disagree that to be reasonable, and, therefore, constitutionally

permissible, the tests must be supported by probable cause. Rather, we

conclude that the State's interest in administering field sobriety tests based

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upon particularized suspicion rather than the more stringent standard of

probable cause substantially outweighs the resulting limited intrusion into an

individual's privacy. Accordingly, we hold that just as an investigative stop

must be based upon particularized suspicion to be constitutionally valid under

both the Fourth Amendment to the United States Constitution and Article II,

Section 11 of the Montana Constitution, field sobriety tests, as searches, must

also be based upon particularized suspicion.

¶39 In this regard, we note that particularized suspicion for the initial stop

may also serve as the necessary particularized suspicion for the administration

of field sobriety tests, providing the basis for the initial stop was of the nature

that would lead an officer to believe that the driver was intoxicated. In other

words, if an individual is driving erratically--e.g., if he is driving all over the

road, crossing the center line and the fog line, weaving in and out of traffic, or

braking for green lights--such evidence would serve as particularized suspicion

both for the officer to initially stop the driver and to administer field sobriety

tests.

¶40 Likewise, we recognize that investigative stops can take on the quality

of an escalating situation. As the Appellate Court of Connecticut explained:

Once a lawful stop is made, a police officer's suspicions

may become further aroused and the stop may become further

prolonged and the scope enlarged as required by the

circumstances, provided the scope of the investigation remains

within the limits created by the facts upon which the stop is

predicated and the suspicion which they arouse.

Lamme, 563 A.2d at 1374 (citing Terry, 392 U.S. at 21-22, 29, 88 S.Ct. at

1879-81, 1883-84, 20 L.Ed.2d 889). For example, if an officer only observed

an individual driving with a broken taillight and after making his initial stop

he did not observe any signs of intoxication, he would not have particularized

suspicion that the driver was driving under the influence, and, therefore, would

be prohibited from administering field sobriety tests. By contrast, if an officer

stops a driver for a broken taillight and upon approaching this driver the

officer does observe signs of intoxication, e.g., the driver's breath smells of

alcohol, his eyes are bloodshot and glassy, or his speech is slurred, the officer

would have a separate particularized suspicion that the individual was driving

under the influence of alcohol, and, therefore, may administer field sobriety

tests. If the driver should fail the field sobriety tests, the officer would then

have probable cause to arrest this individual for driving under the influence of

alcohol.

¶41 The case at bar is a good example of such an escalating situation,

Officer Kennedy first observed Hulse drive away from the New Atlas Bar and

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down one of the main streets in Columbus, Montana, without her headlights

on after dark in violation of § 61-9-201, MCA. In response, he activated his

overhead lights to which she did not respond. After following her for two

more blocks, Officer Kennedy activated his siren. Despite Officer Kennedy's

actions, Hulse did not stop for another one-half block. This objective data

established that Officer Kennedy's initial stop of Hulse was permissible

because it was based on a particularized suspicion that Hulse had committed

an offense.

¶42 After Hulse pulled into her friend's driveway and stopped, Officer

Kennedy approached Hulse, explained his reason for the stop, and asked Hulse

to produce her vehicle registration, proof of insurance and driver's license. At

this time, Officer Kennedy smelled alcohol on Hulse's breath and observed

that her eyes were bloodshot. Additionally, he noted that Hulse had difficulty

with her balance when she exited her vehicle. Furthermore, he observed that

Hulse had difficulty producing her driver's license. Based on these

observations, Officer Kennedy asked Hulse to perform three field sobriety

tests. This objective data further established that Officer Kennedy had a

separate particularized suspicion that Hulse was driving while under the

influence of alcohol, and, therefore, his administration of field sobriety tests

was a constitutionally permissible search under the Fourth Amendment to the

United States Constitution and under Article II, Section 11 of the Montana

Constitution. Because under the totality of the circumstances, the evidence of

record is sufficient to support a particularized suspicion, we hold that the

District Court's finding that Officer Kennedy had reasonable grounds to

believe that Hulse was driving under the influence of alcohol is supported by

substantial credible evidence and is not otherwise clearly erroneous.

See § 61-8-403(4)(a)(i), MCA (1995).

¶43 Relying on Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, Hulse next argues that the District

Court abused its discretion when it summarily denied her motion in limine and

admitted evidence concerning results of the Horizontal Gaze Nystagmus

(HGN) test, one of the field sobriety tests she performed at Officer Kennedy's

request. Hulse contends that because the HGN is a scientific test, evidence

concerning the results of this test are inadmissible unless the requirements of

Daubert are met. Hulse maintains that by failing to determine whether, under

the Daubert standard, the HGN test results were admissible, the District Court

abused its discretion in admitting the HGN test results.

¶44 Consequently, Hulse asserts that without the admission of her HGN

tests results, the remaining evidence was insufficient to support a finding that

Officer Kennedy had probable cause to arrest her. Hulse, therefore, argues

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that because her arrest was invalid, the District Court erred in denying her

petition to reinstate her license. In this regard, Hulse asserts that our decision

in State v. Clark (1988), 234 Mont. 222, 762 P.2d 853, is confusing as to what

foundation is required for the admission of HGN test results. Hulse suggests

that in light of our adoption of Daubert, which Hulse maintains is inconsistent

with our decision in Barmeyer v. Montana Power Co. (1983), 202 Mont. 185,

657 P.2d 594, overruled on other grounds by Martel v. Montana Power Co.

(1988), 231 Mont. 96, 752 P.2d 140, we should clarify our decision in Clark

concerning the admissibility requirements of HGN test results.

¶45 The State first responds that Hulse waived her objections concerning

the HGN test results because after the District Court denied her motion in

limine, Hulse did not renew her objection to Officer Kennedy's testimony

concerning her HGN test results and did not attempt to refute his testimony

through cross-examination. Alternatively, the State argues that even if Hulse's

objections were preserved, the District Court properly denied her motion in

limine. The State asserts that the HGN test administered to Hulse is a test with

a basis in science that has already been established. The State, therefore,

contends that pursuant to Clark, the District Court properly admitted evidence

of Hulse's HGN test results because the State demonstrated through Officer

Kennedy's testimony that he was properly trained to administer the HGN test

and that he in fact administered the test in accordance with such training.

46 At the outset, we agree with Hulse that she preserved for appeal her

objections to the admission of the HGN test results by filing a motion in limine

specifying the grounds of her objection. See Fuhrmann, 278 Mont. at 403,

925 P.2d at 1166. Because a motion in limine is a pre-trial objection to

evidence, a party need not continually renew the objection to preserve alleged

errors for appeal. Barrett v. ASARCo, Inc. (1990), 245 Mont. 196, 205, 799

P.2d 1078, 1083-84 (citation omitted). Consequently, because Hulse

preserved this issue for appeal, we will address the merits of her arguments.

¶47 We begin with Rule 702, M.R.Evid., to determine whether the District

Court properly admitted evidence concerning Hulse's HGN test results. Rule

702, M.R.Evid., identical to its federal counterpart, governs the admissibility

of expert testimony:

If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the form

of an opinion or otherwise.

¶48 We have stated that "[t]he test for the admissibility of expert testimony

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is whether the matter is sufficiently beyond common experience that the

opinion of the expert will assist the trier of fact to understand the evidence or

to determine a fact in issue." Durbin v. Ross (1996), 276 Mont. 463, 469, 916

P.2d 758, 762 (quoting Jim's Excavating Service v. HKM Assoc. (1994), 265

Mont. 494, 509, 878 P.2d 248, 257 (construing Rule 702, M.R.Evid.)).

Furthermore, we have explained:

The Commission Comments to Rule 702, M.R.Evid., note that

the rule sets forth two standards. First, the subject matter must

be one that requires expert testimony. Expert testimony is

required in areas not within the range of ordinary training or

intelligence. Second, the particular witness must be qualified as

an expert to give an opinion in the particular area of the

testimony. Thus, Rule 702, M.R.Evid., implicitly requires a

foundation showing that the expert has special training or

education and adequate knowledge on which to base an opinion.

Within the confines of the rule of evidence, a trial court has

broad discretion in determining the admissibility of the

evidence.

Durbin, 276 Mont. at, 477-78, 916 P.2d at 767 (citations omitted). In addition

to the standards of Rule 702, M.R.Evid., we have imposed additional

admissibility requirements upon expert testimony pertaining to scientific

evidence.

¶49 In Barmeyer, we addressed the issue of whether the district court

properly allowed defendant's expert witness to testify based on his application

of "corrosion analysis" that fire arc-marks found on defendant's east-phase

conductor existed prior to the date the subject grass and forest fire occurred.

Barmeyer, 202 Mont. at 191-92, 657 P.2d at 597. In response to Barmeyer's

contention that the district court abused its discretion in admitting the evidence

because "corrosion analysis" was not generally accepted or recognized by the

scientific community, we held that with the advent of Rule 702, M.R.Evid.,

which exemplified a trend to liberalize the admission of expert testimony, the

Frye "general acceptance" standard was "not in conformity with the spirit of

the new rules of evidence." Barmeyer, 202 Mont. at 192-93, 657 P.2d at 598.

Agreeing with the philosophy articulated in United States v. Baller (4th Cir.

1975), 519 F.2d 463, cert. denied, 423 U.S. 1019 (1975), we further held:

"Deciding whether these conditions have been met is normally

within the discretion of the trial judge. Absolute certainty of

result or unanimity of scientific opinion is not required for

admissibility. 'Every useful new development must have its first

day in court. And court records are full of the conflicting

opinions of doctors, engineers, and accountants, to name just a

few of the legions of expert witnesses.' Unless an exaggerated

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popular opinion of the accuracy of a particular technique makes

its use prejudicial or likely to mislead the jury, it is better to

admit relevant scientific evidence in the same manner as other

expert testimony and allow its weight to be attacked by cross-examination

and refutation."

Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598 (quoting Baller, 519 F.2d at

466). We found in the case sub judice that a sufficient foundation was laid for

defendant's expert witness to testify, and, therefore, concluded that the district

court did not abuse its discretion. Barmeyer, 202 Mont. at 194, 657 P.2d at

599.

¶50 Thereafter, in Clark, we described appellant's reliance on the Frye

general acceptance standard as misplaced and instead relied on Rule 702,

M.R.Evid., and Barmeyer, to determine whether the district court properly

allowed Clark's arresting officer to testify as to the results of the HGN test

performed by Clark prior to his arrest for DUI. Clark, 234 Mont. at 226-28,

762 P.2d at 856-57. Stating the admission of HGN test results was a matter

of first impression, we noted that several other states had allowed admission

of this evidence as one method of indicating impairment, and "adopt[ed] the

position of these courts in allowing the admission of the tests." Clark, 234

Mont. at 226, 762 P.2d at 856 (citing Howard v. State (Tex.App. 1987), 744

S.W.2d 640; Superior Court, 718 P.2d 171; and People v. Vega (1986), 496

N.E.2d 501). We then pointed out, however, that the "pivotal question" was

one of proper foundation. Clark, 234 Mont. at 226, 762 P.2d at 856.

¶51 In response to Clark's argument that his arresting officer, Deputy Irby,

was not sufficiently qualified to testify as to the scientific reliability of the

HGN test, we simply stated that "the scientific reliability was nonetheless

discussed through Clark's own witness, Dr. Curt Kurtz." We thereafter set

forth a portion of Dr. Kurtz's testimony concerning various causes, including

alcohol, of nystagmus and its use by police as an indicator of intoxication.

Clark, 234 Mont. at 227, 762 P.2d at 857. We affirmed the district court's

admission of the HGN test results, concluding:

Upon the testimony of Dr. Kurtz, the District Court

found sufficient basis for the admissibility of the HGN test.

This Court has long held it is within the jurisdiction of the trial

judge to admit scientific and expert testimony. State v.

Sharbono (1977), 175 Mont. 373, 384, 563 P.2d 61, 68.

As to the results of the test, Deputy Irby testified he was

certified through the Montana Law Enforcement Academy,

completing the required number of training hours. Further

Deputy Irby testified he administered the test in the proper

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manner. No other foundation need be shown.

Clark, 234 Mont. at 227-28, 762 P.2d at 857.

¶52 Subsequent to our decisions in Barmeyer and Clark, the United States

Supreme Court also rejected the Frye general acceptance standard for

admissibility of expert testimony concerning novel scientific evidence in

response to the liberalized requirements of Rule 702, F.R.Evid. Daubert, 509

U.S. at 588-90, 113 S.Ct. at 2794-95, 125 L.Ed.2d at 479-81. The Supreme

Court explained that a trial court is required under Rule 702, F.R.Evid., to

screen this evidence to ensure not only its relevancy, but its reliability.

Daubert, 509 U.S. at 589, 113 S.Ct. at 2795, 125 L.Ed.2d at 480. To assist

trial courts, the Supreme Court set forth several non-exclusive factors for

consideration which we adopted:

(a) whether the theory or technique can be and has been tested;

(b) whether the theory or technique has been subjected to peer

review and publication; (c) the known or potential rate of error

in using a particular scientific technique and the existence and

maintenance of standards controlling the technique's operation;

and (d) whether the theory or technique has been generally

accepted or rejected in the particular scientific field.

State v. Moore (1994), 268 Mont. 20, 41, 885 P.2d 457, 470-71 (citing

Daubert, 509 U.S. at 592-95, 113 S.Ct. at 2796-98, 125 L.Ed.2d at 482-84).

¶53 We adopted the rationale of Daubert in Moore to determine whether the

district court properly admitted DNA analysis evidence. We first explained

that we had previously rejected the Frye general acceptance test because "[i]n

determining whether to allow expert testimony concerning novel scientific

evidence, this Court has held that 'it is better to admit relevant scientific

evidence in the same manner as other expert testimony and allow its weight to

be attacked by cross-examination and refutation.' " Moore, 268 Mont. at 41,

885 P.2d at 470 (quoting Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598).

We concluded that the guidelines set forth in Daubert were consistent with our

previous holding in Barmeyer concerning the admission of expert testimony

of novel scientific evidence. Moore, 268 Mont. at 42, 885 P.2d at 471. As

such, we further concluded that "before a trial court admits scientific expert

testimony, there must be a preliminary showing that the expert's opinion is

premised on a reliable methodology." Moore, 268 Mont. at 42, 885 P.2d at

471. However, we explained that the trial court must be flexible in this

inquiry. Moore, 268 Mont. at 42, 885 P.2d at 471.

¶54 Thereafter, we again applied the Daubert standard in State v. Cline

(1996), 275 Mont. 46, 909 P.2d 1171, to determine the admissibility of expert

testimony concerning the age of the defendant's fingerprint. Citing Moore, we

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again pointed out the "continuing vitality of Barmeyer." Cline, 275 Mont. at

55, 909 P.2d at 1177. Additionally, before reviewing the district court's

decision to admit this evidence under the Daubert standard, we explained:

It must also be noted that we do not consider fingerprint

evidence in general to be novel scientific evidence. However,

in the present case the issue is whether it is possible to

determine the age of a fingerprint utilizing magnetic powder.

We apply the Daubert standard to this case because we consider

fingerprint aging techniques in this context to be novel scientific

evidence. Certainly all scientific expert testimony is not subject

to the Daubert standard and the Daubert test should only be

used to determine the admissibility of novel scientific evidence.

Cline, 275 Mont. at 55, 909 P.2d at 1177.

¶55 We agree with Hulse that in light of this subsequent case law, the

required foundation for admission of HGN test results, as set forth in Clark,

is less than clear. As is evident from our case law, while Rule 702, M.R.Evid.,

generally governs the admission of expert testimony, we have imposed an

additional admissibility requirement upon expert testimony concerning "novel"

scientific evidence, such as DNA analysis and fingerprint aging techniques.

See Moore, 268 Mont. at 41, 885 P.2d at 470, and Cline, 275 Mont. at 55, 909

P.2d at 1177. Hulse suggests that Daubert is not limited to the admissibility

of "novel" scientific evidence and that Barmeyer and Daubert are inconsistent.

We disagree. Accordingly, we take this opportunity to clarify our decision in

Clark concerning the admissibility requirements of HGN test results and to

clarify the admissibility requirements of scientific evidence in general.

¶56 First, as is clearly stated in Cline, "all scientific expert testimony is not

subject to the Daubert standard and the Daubert test should only be used to

determine the admissibility of novel scientific evidence." Cline, 275 Mont. at

55, 909 P.2d at 1177. Such a conclusion is supported by the language of

Daubert itself. The issue in Daubert concerned the admissibility of a novel

scientific theory that birth defects were caused when pregnant women ingested

Benedectin, an anti-nausea drug. The Supreme Court noted that although Rule

702, F.R.Evid., also applied to technical or other specialized knowledge, its

discussion was limited to the scientific context due to the nature of the

expertise at issue. Daubert, 509 U.S. at 590 n.8, 113 S.Ct. at 2795, 125

L.Ed.2d at 481.

¶57 Additionally, the Supreme Court explained that while Frye focused

exclusively on novel scientific techniques, the Court did not "read the

requirements of Rule 702 to apply specially or exclusively to unconventional

evidence." Daubert, 509 U.S. at 592 n.11, 113 S.Ct. at 2796, 125 L.Ed.2d

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at 482. The Ninth Circuit Court of Appeals, after citing to this part of the

Daubert decision, concluded that the requirements of Daubert "apply to all

proffered expert testimony--not just testimony based on novel scientific

methods or evidence." Claar v. Burlington Northern Railroad Co. (9th Cir.

1994), 29 F.3d 499, 501 n.2 (citing Daubert, 113 S.Ct. at 2796 n.11). We

disagree with this interpretation of Daubert and reassert our holding in Cline

that the Daubert test should only be used to determine the admissibility of

novel scientific evidence. Cline, 275 Mont. at 55, 909 P.2d at 1177.

¶58 Other jurisdictions have similarly held that Daubert is limited to novel

scientific evidence. Recently, a federal district court concluded that

"Fed.R.Evid. 702 is still viable and the principles enunciated in Daubert

should be narrowly limited to controversial and novel scientific evidence."

Thornton v. Caterpillar, Inc. (D.S.C. 1997), 951 F.Supp. 575, 578 (holding

that mechanical engineer's testimony concerning design defect and lack of

adequate warning fell within technical and specialized knowledge, "not within

the narrowly limited area of unique, untested and novel scientific evidence as

enunciated in Daubert"). See Waitek v. Dalkon Shield Claimants Trust

(N.D.Iowa 1996), 934 F.Supp. 1068, 1087-89 n.10 (providing an extensive list

of federal courts so holding)(concluding in the case sub judice that Daubert

did not apply to a gynecologist's expert testimony because his opinions "were

not based on a novel scientific test or a unique, controversial methodology or

technique; rather, he based his opinions on his experience and training as both

a gynecologist and as a doctor experienced in the use of and medical problems

associated with the Dalkon Shield"). See also Williams v. Hedican (Iowa

1997), 561 N.W.2d 817, 825-27 (concluding, in dicta, that the approach taken

in Thornton and other federal courts restricting Daubert in favor of a

conventional Rule 702 analysis was reasonable); Collins v. Commonwealth

(Ky. 1997), 951 S.W.2d 569, 574-75 (concluding that although the court

previously adopted the Daubert analysis, Daubert was not triggered because

the doctor's expert testimony concerned basic female anatomical findings that

"did not involve any novel scientific techniques or theories"); and State v.

Hodgson (Minn. 1994), 512 N.W.2d 95, 98 (acknowledging that Minnesota

follows the Frye test and declining to address the impact of Daubert because

the issue sub judice involved the expert testimony of a forensic odontologist

concerning bite mark analysis which was not a novel or emerging type of

scientific evidence).

¶59 Furthermore, we clearly stated in Moore, and reiterated in Cline, that

Barmeyer remains viable in light of our adoption of Daubert. In Moore, we

stated that Barmeyer set forth the standard for admitting novel scientific

evidence, and as such it was consistent with the guidelines set forth in

Daubert. Moore, 268 Mont. at 41-42, 885 P.2d at 470-71. We recognize that

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Moore, as written, creates a source of confusion concerning the applicability

of Barmeyer. Certainly, our statement in Moore that Barmeyer applies when

determining the admissibility of novel scientific evidence is correct. However,

upon review, we conclude that such a statement interprets Barmeyer too

restrictively.

¶60 In Barmeyer, we were presented with the issue of whether the district

court abused its discretion by admitting expert testimony which the plaintiff

asserted was not generally accepted by the scientific community. It was within

this context that we chose to demonstrate the more liberal trend apparent in the

rules of evidence by rejecting the Frye general acceptance standard.

Barmeyer, 202 Mont. at 193, 657 P.2d at 598. We never expressly

characterized the expert testimony at issue as "novel" scientific evidence, but

rather we addressed the issue as framed by the appellant in the context of the

Frye general acceptance standard. As such, we rejected Frye, and approached

the issue under a conventional Rule 702 analysis. Barmeyer, 202 Mont. at

192-94, 657 P.2d at 598-99.

¶61 Consequently, Barmeyer should not be read as applying only to novel

scientific evidence. Rather, our statements in Barmeyer more broadly

referenced the entire trend to liberalize the admission of expert testimony as

it applied to scientific evidence in general. Thus, we held, "it is better to admit

relevant scientific evidence in the same manner as other expert testimony and

allow its weight to be attacked by cross-examination and refutation."

Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598. The United States Supreme

Court set forth this same principle in Daubert.

¶62 The Court, in Daubert, addressed concerns regarding the consequences

of abandoning the Frye general acceptance test, by explaining that "[v]igorous

cross-examination, presentation of contrary evidence, and careful instruction

on the burden of proof are the traditional and appropriate means of attacking

shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S.Ct. at 2798,

125 L.Ed.2d at 484. The Court went on to state that "[t]hese conventional

devices, rather than wholesale exclusion under an uncompromising 'general

acceptance' test, are the appropriate safeguards where the basis of scientific

testimony meets the standards of Rule 702." Daubert, 509 U.S. at 596, 113

S.Ct. at 2798, 125 L.Ed.2d at 485.

¶63 Although Daubert was limited to "novel" scientific evidence, this

rationale is wholly consistent with our decision in Barmeyer concerning the

admissibility of scientific evidence in general. That is, a trial court, presented

with scientific evidence, novel or not, is encouraged to liberally construe the

rules of evidence so as to admit all relevant expert testimony pursuant to

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Barmeyer. Certainly, if a court is presented with an issue concerning the

admissibility of novel scientific evidence, as was the case in both Moore and

Cline, the court must apply the guidelines set forth in Daubert, while adhering

to the principle set forth in Barmeyer. However, if a court is presented with

an issue concerning the admissibility of scientific evidence in general, the

court must employ a conventional analysis under Rule 702, M.R.Evid., while

again adhering to the principle set forth in Barmeyer.

¶64 With this in mind, we now turn to the more immediate issue concerning

the foundation requirements for admission of HGN test results. The State

point outs that throughout other jurisdictions, three different lines of cases

concerning the admissibility of HGN test results have evolved. The first line

of cases, relying in part on the seminal case of Superior Court, 718 P.2d 171,

conclude that the scientific reliability of the HGN test has been established and

does not require expert testimony in every case. Another line of cases holds

that the HGN test is not scientific, and, therefore, does not require expert

testimony as a foundation for admissibility. Finally, a third line of cases holds

that before HGN test results are admitted, expert testimony must demonstrate

general acceptance in the relevant scientific community. See City of Fargo v.

McLaughlin (N.D. 1994), 512 N.W.2d 700, 705-06 (extensively listing states

representative of each of these three lines of cases). See also Commonwealth

v. Sands (Mass. 1997), 675 N.E.2d 370, 372-73 (listing states that have

admitted HGN test results under Frye, Daubert, or a rule equivalent to Rule

702, F.R.Evid.).

¶65 In Montana, we recognize the scientific basis underlying the HGN test

requiring expert testimony. See Clark, 234 Mont. at 226-28, 762 P.2d at 856-57.

However, the issue raised today is whether the District Court abused its

discretion when it allowed Officer Kennedy to testify as to Hulse's HGN test

results without first determining whether the requirements of Daubert were

met. Accordingly, to decide whether Daubert should be applied to determine

the admissibility of HGN test results, we must first determine whether the

HGN test is novel scientific evidence.

¶66 Nystagmus is the involuntary jerking of the eyeball resulting from the

body's attempt to maintain balance and orientation. State v. Murphy (Tenn.

1997), 953 S.W.2d 200, 202. Nystagmus may be aggravated by central

nervous system depressants such as alcohol or barbiturates. Superior Court,

718 P.2d at 173. See Schultz v. State (Md.App. 1995), 664 A.2d 60, 77 (listing

38 possible causes of nystagmus, other than alcohol). Furthermore, the

inability of the eyes to maintain visual fixation as they are turned to the side

is known as horizontal gaze nystagmus. Superior Court, 718 P.2d at 173.

The HGN test consists of three parts which measure

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various aspects of these involuntary movements which cause

nystagmus. In the first part, the "smooth pursuit" test, the

officer asks the defendant to first look straight ahead, focusing

on an object, such as a pen, which the officer then moves back

and forth horizontally. As the driver follows the path of the

pen, the officer looks to see whether the eyes move smoothly

from side to side, or whether they exhibit nystagmus,

characterized by an unsteady, bouncing movement. In the

second part, the "maximum deviation" test, the officer moves

the pen horizontally to the limit of the driver's field of vision,

and watches the eyes for bouncing at the extremes. In the third

part, the "forty-five degree" test, the officer again moves the

object from side to side, asking the driver to follow the

movement with his eyes. The officer watches for the onset of

the nystagmus prior to a forty-five degree angle between the

driver's nose and the position of the object. The underlying

theory is that there is a strong correlation between the degree of

a person's intoxication and the angle at which the person's eyes

begin to exhibit evidence of nystagmus.

Sands, 675 N.E.2d at 372 (citation omitted).

¶67 As the Kansas Supreme Court effectively explained, the HGN test is a

scientific test:

The HGN test is distinguished from other field sobriety tests in

that science, rather than common knowledge, provides the

legitimacy for HGN testing. Certain reactions to alcohol are so

common that judicial notice will be taken of them; however,

HGN testing does not fall into this category. HGN test results

are "scientific evidence based on the scientific principle that

consumption of alcohol causes the type of nystagmus measured

by the HGN test." HGN evidence could have a disproportionate

impact on the jury's decision[-]making process because of the

test's scientific nature and because the jury may not understand

the nature of the test or the methodology of its procedure.

State v. Witte (Kan. 1992), 836 P.2d 1110, 1115 (citing in part Superior Court,

718 P.2d 171; other citations omitted).

¶68 Law enforcement officials have used the HGN test for several decades.

See John P. Ludington, Annotation, Horizontal Gaze Nystagmus Test: Use In

Impaired Driving Prosecution, 60 A.L.R. 4th 1129, 1131 (1988). In this

regard, as indicated by Officer Kennedy's testimony, the Montana Law

Enforcement Academy trains officers in HGN testing. Additionally, appellate

courts throughout the country began addressing the admissibility of HGN test

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results as early as 1986. See Superior Court, 718 P.2d 171. The Minnesota

Supreme Court has commented that the HGN test "can hardly be characterized

as [an] emerging scientific technique[ ]" because nystagmus has long been

known and the tests have been in common medical use for many years. State

v. Klawitter (Minn. 1994), 518 N.W.2d 577, 584. Similarly, a Florida

appellate court declared that HGN testing was neither a novel nor a new

scientific technique. State v. Meador (Fla.App. 4 Dist. 1996), 674 So.2d 826,

835. See also State v. O'Key (Or. 1995), 899 P.2d 663, 684 (noting HGN test

used for three decades).

¶69 We agree that the HGN test is not novel scientific evidence. Therefore,

to determine the admissibility of HGN test results, a district court need not

employ the Daubert standard. However, we continue to recognize that the

relationship between alcohol consumption and nystagmus, the underlying

scientific principle of the HGN test, is still beyond the range of ordinary

training or intelligence. Therefore, a district court must still conduct a

conventional Rule 702, M.R.Evid., analysis to determine the admissibility of

HGN test results while adhering to the principle of Barmeyer.

¶70 Rule 702, M.R.Evid., "implicitly requires a foundation showing that the

expert has special training or education and adequate knowledge on which to

base an opinion." Durbin, 276 Mont. at 477-78, 916 P.2d at 767 (citation

omitted). As our decision in Clark illustrates, before an arresting officer may

testify as to HGN test results, a proper foundation must show that the officer

was properly trained to administer the HGN test and that he administered the

test in accordance with this training. Clark, 234 Mont. at 228, 762 P.2d at

857. However, Clark also illustrates that a foundation showing that the

arresting officer is qualified to testify as to the HGN test results does not

provide a sufficient basis for the officer to testify as to the scientific basis of

the HGN test. In response to Clark's argument that his arresting officer was

not sufficiently qualified to testify as to the scientific reliability of the HGN

test, we stated that "the scientific reliability was nonetheless discussed through

Clark's own witness, Dr. Curt Kurtz." Clark, 234 Mont. at 227, 762 P.2d at

857. Consequently, we concluded through the testimony of both Clark's

arresting officer as well as the testimony of Clark's witness, Dr. Kurtz, there

was a sufficient foundation for the district court to admit evidence of the HGN

test results. Clark, 234 Mont. at 227-28, 762 P.2d at 857.

¶71 In the case at bar, after the District Court summarily denied Hulse's

motion in limine, Officer Kennedy testified that he had completed the basic

training course at the Montana Law Enforcement Academy where he received

40 hours of training in the administration and evaluation of three field sobriety

tests, including the HGN test. Thereafter, he described his administration and

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evaluation of the HGN test and testified that Hulse failed the HGN test. No

testimony was presented either through Officer Kennedy or another expert

witness describing the underlying scientific basis of the HGN test other than

Officer Kennedy's explanation that everyone's eye will exhibit nystagmus at

"maximum deviation," but that "[w]ith the introduction of alcohol into the

system, that nystagmus becomes more prevalent and it doesn't cease . . .."

¶72 This testimony shows that Officer Kennedy was trained to administer

the HGN test and, in fact, administered the HGN test on Hulse in accordance

with this training, and, therefore, he was qualified to testify as to both his

administration of the HGN test and his evaluation of Hulse's performance.

However, nothing in the evidence establishes that Officer Kennedy had special

training or education nor adequate knowledge qualifying him as an expert to

explain the correlation between alcohol consumption and nystagmus, the

underlying scientific basis of the HGN test. Accordingly, we conclude there

was insufficient foundation for the admission of evidence concerning the HGN

test and the District Court abused its discretion when it summarily denied

Hulse's motion in limine and allowed Officer Kennedy to testify as to Hulse's

HGN test results.

¶73 However, even without evidence of the HGN test results, sufficient

evidence remains to support a finding that Officer Kennedy had probable

cause to arrest Hulse for driving under the influence, and, therefore, that

Hulse's arrest was valid. Officer Kennedy testified that he observed Hulse

driving way from the New Atlas Bar after dark with her headlights off and that

she failed to immediately pull over after he activated his overhead lights and

siren. Additionally, after Hulse stopped, Officer Kennedy testified that her

eyes were bloodshot, she smelled of alcohol and she fumbled for her driver's

license. Furthermore, Officer Kennedy testified that Hulse failed the other two

field sobriety tests he administered. Consequently, we further conclude that,

although the District Court abused its discretion when it allowed Officer

Kennedy to testify about Hulse's HGN test results, this error was harmless.

Accordingly, we hold that the District Court's finding that Hulse was arrested

is based on substantial evidence, and, thus, is not clearly erroneous. See

§ 61-8-403(4)(a)(ii), MCA (1995).

¶74 In sum, we hold that the District Court's findings that Officer Kennedy

had reasonable grounds to believe that Hulse was driving under the influence

of alcohol and that Officer Kennedy had probable cause to arrest Hulse for

DUI are supported by substantial credible evidence and are not otherwise

clearly erroneous. See §§ 61-8-403(4)(a)(i) and (ii), MCA (1995).

Furthermore, Hulse concedes that she refused to submit to a breath test. See

§ 61-8-403(4)(a)(iii), MCA (1995). Therefore, we further hold that the

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District Court correctly concluded that Hulse's driver's license was lawfully

suspended pursuant to § 61-8-402, MCA. Accordingly, we affirm the District

Court's denial of Hulse's petition to reinstate her driver's license.

¶75 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

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