Considered on Briefs on Feb. 12, 2013.
Marty J. Jackley, Attorney General, Bethany L. Erickson, Assistant Attorney General, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
Nicole J. Laughlin, Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice.
[¶ 1.] Officer Campbell stopped John Garang Yuel after watching Yuel make an improper left turn at an intersection. There were both open and unopened beer containers in the vehicle. When Officer Treadway arrived at the scene, he began a DUI investigation. After conducting multiple field sobriety tests, Officer Treadway arrested Yuel for DUI. The results of Yuel's blood test indicated Yuel's blood alcohol content (BAC) was over 0.08 percent at the time of the stop. Yuel exercised his right to a jury trial on the DUI charges and was found guilty. He appeals the trial court's admission of certain testimony regarding the Horizontal Gaze Nystagmus
(HGN) test, which Officer Treadway conducted during the stop, and the trial court's denial of his motion for judgment of acquittal.
[¶ 2.] At approximately 6:23 p.m. on July 25, 2011, Officer Campbell was observing the intersection of 10th Street and Franklin Avenue in Sioux Falls, South Dakota. Two " no left turn" signs were posted at the intersection, which was under construction. While watching the intersection, Officer Campbell observed Yuel make an improper left turn. Officer Campbell proceeded to initiate a traffic stop of the vehicle. There were a total of four individuals in the vehicle. Upon making contact with the vehicle and requesting Yuel's driver's license and registration, Officer Campbell saw an unopened beer can fall out of the front passenger's pocket. Additionally, he noticed two unopened beer containers in the console of the vehicle. At this point, Officer Campbell called three additional officers to the scene to assist with the stop. Following his arrival at the scene, one of the officers noticed an open container in the backseat of the vehicle. Another open container was found under Yuel's seat.
[¶ 3.] Yuel was unable to provide Officer Campbell with a valid driver's license. When Officer Campbell checked the status of Yuel's license, he discovered that it had been revoked. After issuing Yuel several citations, Officer Campbell turned the investigation over to Officer Treadway so that Officer Treadway could perform a DUI investigation. Upon making contact with Yuel, Officer Treadway noticed the smell of alcohol coming from Yuel's breath. Additionally, he observed that Yuel had bloodshot, glossy eyes and appeared to be disoriented. Officer Treadway asked Yuel if he had consumed any alcohol, and Yuel initially responded that he had not. However, Yuel later told Officer Treadway that he " drank one beer a minute ago."
[¶ 4.] Based on his observations, Officer Treadway conducted various field sobriety tests. These included the walk-and-turn test, the one-leg-stand test, and the HGN test. Officer Treadway determined that his observations concerning Yuel's physical characteristics and Yuel's performance during the field sobriety tests indicated that Yuel was impaired and that Yuel's BAC was above a 0.08 percent. As a result, Officer Treadway placed Yuel under arrest for DUI. Yuel was then transported to the Minnehaha County Jail and a blood test was performed. Yuel's blood
was drawn at 7:06 p.m., which was approximately 40 minutes after he was stopped. The blood test results revealed that Yuel's BAC was 0.112 percent. The forensic specialist from the Sioux Falls Police Department who tested the blood determined that Yuel's BAC would have been approximately 0.109 percent at the time of the stop.
[¶ 5.] Yuel was charged by Information with: driving while under the influence of alcohol, marijuana, or any controlled substance, in violation of SDCL 32-23-1(2); driving while having 0.08 percent or more by weight of alcohol in the blood, in violation of SDCL 32-23-1(1); driving with a revoked license, in violation of SDCL 32-12-65(1); and driving with a suspended license, in violation of SDCL 32-12-65(2). In a Part II Information, Yuel was charged with a fifth or subsequent offense of driving while under the influence, in violation of SDCL 32-23-4.7. Yuel pleaded not guilty to the charges and proceeded to trial. Before the jury trial commenced, Yuel pleaded guilty to driving with a revoked license in exchange for the State dismissing the charge of driving with a suspended license. Yuel did not testify at trial and did not call any witnesses. At the conclusion of the trial, the jury found Yuel guilty of driving while under the influence of alcohol and driving while having 0.08 percent or more by weight of alcohol in the blood.
[¶ 6.] At sentencing, Yuel admitted to the Part II Information. As to the DUI, Yuel was sentenced to serve 10 years in the South Dakota State Penitentiary, with two years suspended and credit for the 170 days he had previously served. As to the driving with a revoked license charge, Yuel was sentenced to serve 180 days in jail, with 170 days suspended. Additionally, he was given credit for 10 days previously served. This sentence was to run concurrent with Yuel's DUI sentence. Yuel appeals, arguing: (1) the trial court erred in allowing Officer Treadway to testify about the accuracy of HGN testing; and (2) the trial court erred in denying Yuel's motion for judgment of acquittal.
ANALYSIS AND DECISION
[¶ 7.] 1. Whether the trial court erred in allowing Officer Treadway to testify about the reliability of HGN testing and the correlation between an individual's performance on an HGN test and the individual's BAC.
[¶ 8.] South Dakota has adopted the Daubert test, which is set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to be used in determining whether expert testimony is admissible. State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994). " The Daubert standard requires the trial court to ensure that an expert's testimony both ‘ rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.’ " State v. Loftus, 1997 S.D. 131, ¶ 21, 573 N.W.2d 167, 173 (quoting Kuper v. Lincoln-Union Elec. Co., 1996 S.D. 145, ¶ 40, 557 N.W.2d 748, 760). " The trial court's evidentiary rulings are presumed correct and will not be overturned absent a clear abuse of discretion." St. John v. Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d 71, 74 (citation omitted). " An evidentiary ruling will not be overturned unless error is demonstrated and shown to be prejudicial error." Id. (citation omitted).
[¶ 9.] In Hullinger, this Court held that testimony regarding HGN testing evidence is relevant to the issue of
whether a person is driving while under the influence of alcohol. 2002 S.D. 83, ¶ 15, 649 N.W.2d at 259. We also recognized that HGN testing, when conducted by a properly trained officer, is nationally recognized as a reliable field-sobriety testing method. Id. ¶ 19. Thus, under Daubert, the reliability of HGN testing as an indicator of whether a person is under the influence of alcohol need not be established through expert testimony if adequate foundation is laid to establish that the officer was trained to administer the test and that the officer administered the test properly. Id. A defendant may refute the State's HGN-test-result evidence ...