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State v. Hill

Supreme Court of Idaho

November 23, 2016

STATE OF IDAHO, Plaintiff-Respondent,
v.
JONATHAN ALAN HILL, Defendant-Appellant.

         2016 Opinion No. 135

         Appeal from the District Court of the Second Judicial District of the State of Idaho, Nez Perce County. Hon. Jay P. Gaskill, District Judge.

         The judgment of conviction is vacated and the case is remanded for a new trial.

          Eric Fredericksen, State Appellate Public Defender, Boise, for appellant. Maya Waldron argued.

          Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

          HORTON, JUSTICE.

         Jonathan Hill appeals from his conviction for felony driving under the influence (DUI). His appeal presents a single question. Over Hill's unsuccessful hearsay objection, the deputy sheriff who conducted field sobriety tests (FSTs) of Hill was permitted to testify as to what he had been taught regarding the presence of vertical nystagmus. Hill's appeal challenges this evidentiary ruling by the district court. We vacate Hill's conviction and remand for a new trial.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On the evening of January 10, 2014, the Nez Perce County Sheriff's Office received a call about a large party of juveniles in the Waha area. As this is a large area that stretches into Lewis County, the Lewis County Sheriff's Office was alerted and deputies from both Nez Perce County and Lewis County responded. Due to poor road conditions, the Lewis County deputies accessed the area through Nez Perce County. While in Nez Perce County, Deputies Davis and Smith of the Lewis County Sheriff's Department saw a pickup driving without taillights. After contacting Sergeant Martin of Nez Perce County for instructions, the Lewis County deputies stopped the vehicle.

         Hill was driving the pickup. While speaking with Hill about the reason for the stop, Deputy Smith noticed an odor of alcohol coming from the vehicle and observed that Hill's eyes were bloodshot and glassy. Suspecting that Hill had been drinking, Deputy Smith contacted Sergeant Martin for further instructions. Sergeant Martin, who was on his way but delayed by the poor road conditions, instructed Deputy Smith to perform FSTs.

         Deputy Smith had Hill perform three FSTs. Hill was wearing insulated overalls, a winter coat, and steel-toed boots. The tests were performed in the roadway, which had a slight downhill grade and was covered in snow. Deputy Smith administered the horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one-leg stand test. At the time, Lewis County Sheriff deputies did not have operating dash cams in their vehicles so there is no video record of Hill's performance of the tests. Deputy Smith testified that Hill exhibited nystagmus and failed to correctly perform the other two FSTs. Deputy Smith determined that Hill was impaired and detained him for Sergeant Martin.

         Sergeant Martin arrived at the scene, took custody of Hill, and placed him in the back of his patrol car. Before Sergeant Martin arrived, Deputy Smith had begun the fifteen minute observation period required before administering a breath test. After taking custody of Hill, Sergeant Martin observed Hill for the remainder of the observation period. After a total of fifteen minutes had passed, Sergeant Martin asked Hill to take a breath test on a Lifeloc portable breath testing machine. Hill refused, stating that he felt the manner in which the FSTs were administered was not fair. Following this refusal, Hill was arrested for DUI and transported to the Nez Perce County Jail.

         Hill was convicted of felony DUI following a jury trial held on August 25 and 26, 2014. At trial, Deputy Smith testified about the Hill's performance of the FSTs. During the State's direct examination of Deputy Smith regarding the HGN test, the following exchange took place:

Deputy Smith: And if they have vertical nystagmus, we were taught in the academy that it's ...

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