Opinion No. 135
from the District Court of the Second Judicial District of
the State of Idaho, Nez Perce County. Hon. Jay P. Gaskill,
judgment of conviction is vacated and the case is remanded
for a new trial.
Fredericksen, State Appellate Public Defender, Boise, for
appellant. Maya Waldron argued.
Lawrence G. Wasden, Attorney General, Boise, for respondent.
Kenneth K. Jorgensen argued.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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
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.
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 ...