CAUSE NO. 

THE STATE OF TEXAS

V.

DEFENDANT
§	IN THE ____________COURT
§
§	OF
§
§	_____________COUNTY, TEXAS
MOTION TO PROHIBIT POLICE OFFICER OPINION TESTIMONY
ON RELIABILITY, ACCURACY AND RESULTS OF STANDARDIZED
FIELD SOBRIETY TESTS UNDER R. 702, TEX.R.EVID.

TO THE HONORABLE JUDGE OF SAID COURT:

	COMES NOW the Defendant, in the above-styled and numbered cause, by and through his undersigned counsel and moves to prohibit the admission of any and all police officer expert opinion testimony under the authority of Tex.R.Evid. 702, on the alleged reliability, accuracy and results of standardized field sobriety tests.  In support hereof, the Defendant would show:
I.
	The relief requested is proper under Tex.R.Evid. 702 which provides:
“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, or training or education may testify thereto in the form of an opinion or otherwise.”

Kumho Tire, Ltd. Et Al. vs. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999), Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1997) and Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997) (overruled in part on other grounds), also provide additional authority that the requested relief is appropriate absent the government proving by “clear and convincing evidence” that the standardized field sobriety tests given the Defendant in this case were not only reliable and accurate indicators of intoxication, but also, relevant.  See, Kelly at 824 S.W.2d 568.
II.
	“Clear and Convincing Evidence,” under Texas law is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”  State v. Addington, 588 S.W.2d 569 (Tex. 1979).  See also, Tex. Fam. Code Ann. § 101.007 (West 1999) (“`clear and convincing evidence’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”)
III.
	Kumho makes clear that the trial judge’s obligation to act as “gatekeeper” by precluding the admission of evidence not found to be accurate, reliable, and relevant by clear and convincing evidence not only applies to testimony based on “scientific” knowledge, but also, to testimony based on “technical” and “other specialized” “knowledge”.  119 S. Ct. at 1171.
IV.
	In the case herein, the arresting officer on the roadside instructed the Defendant to perform the following tests:
1.		horizontal gaze nystagmus;
2.		one leg stand;
3.		walk and turn;
4.		Rhomberg (head tilt); and,
5.		nose touch.

V.

	Also, the video officer at the station instructed the Defendant to perform the following tests:

1)		one leg stand;
2)		walk and turn;
3)		Rhomberg (head tilt);
4)		nose touch; and,
5)		reading.

VI.

	The Government has provided notice to the Defendant that it intends to offer police officer expert opinion testimony that the aforementioned tests are accurate, reliable, and relevant indicators of intoxication, and that the Defendant’s performance thereon was proof of intoxication.  More specifically, the government’s theory on the alleged relevance of the tests is that they can determine, both accurately and reliably, by clear and convincing evidence, that the Defendant lost the normal use of either his mental or physical faculties because of intoxication.  Additionally, it is the government’s proposition on the Defendant’s performance on the tests is that the officer, by clear and convincing evidence, is qualified as an expert by his training, experience and knowledge, to testify implicitly that:

1)		there is a correlation between a test subject’s performance and intoxication;

2)		the correlation is based upon information and knowledge learned from his experience and training; and

3)		based upon 1 and 2, that his opinion that Defendant’s performance indicated a loss of normal use of mental and/or physical faculties because of intoxication.

VII.

	The accuracy and reliability of the officer expert opinion testimony must be evaluated in terms of the methodology, technique or specialized knowledge relied upon by the officer in formulating the opinion.  The Daubert Court discussed that four factors: testing, peer review, error rates, and acceptability in the scientific community, can prove helpful in determining the reliability of a particular scientific theory or technique for admissibility purposes.  509 U.S. at 593-594.  In Kumho, the Court held that Rule 702 inquiry is to be a “flexible one” and that the Daubert factors do not constitute a definitive checklist or test and that the gatekeeping inquiry must be tied to the particular facts.  Kumho, 119 S.Ct. at 1175.  Accordingly, the gatekeeper focus must be on the nature of the issue, the expert’s particular expertise, as well as on the subject of the testimony.  Kumho, 119 S.Ct. at 1175. 
VIII.
	The Kumho Court further held that Rule 702 “establishes a standard of evidentiary reliability.  It requires a valid . . . connection to the pertinent inquiry as a precondition to admissibility.  And where such testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has a ‛reliable basis’ in knowledge and experiences of the relevant discipline.”  Kumho at 1175 (emphasis added).  Here, the Kumho Court said that the trial judge may also consider:

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

2)		whether it has been subjected to peer review and publication;

	3.	whether, in request to a particular technique, there is a high known or a  	potential rate of error and whether these are standards controlling the technique operation; and,

3)		whether the theory or technique enjoys general acceptance within a relevant scientific community.

	The above is not the exclusive list of factors to be considered in determining “reliability”.  The trial court, however, must limit the inquiry by being tied to the facts of the particular case.”  Moreover, the trial court must note that nothing in Daubert, Kumho, Kelly and Rule 702 require a court to admit opinion testimony that is connected to existing data only by the ipse dixit of the expert.  Kumho at 1179.
IX.
	In the case at bar, the government can not satisfy, by clear and convincing evidence, the reliability, accuracy, or relevancy predicates for the admission of expert officer opinion testimony for the standardized sobriety tests given or the Defendant’s performance on them for the following reasons:

1)	There is not a substantial factual basis as to what an average intoxicated person’s performance would be where a pretest practice session was not allowed;

2)	There is not a substantial factual basis as to what an average non intoxicated and uncoordinated person’s performance would be where a pretest practice session was not allowed;

3)	There is not a substantial basis for believing the tests can distinguish between an intoxicated person’s performance and the normal mental and/or physical faculties of a normally coordinated and/or normally uncoordinated non-intoxicated persons performance of the tests;

4)	There is not a substantial factual basis for believing the witness possesses any specialized medical/scientific training to proffer an expert opinion;

5)	There is not a substantial basis for knowing what the Defendant’s normal mental and/or physical faculties were supposed to be at the time of police testing in order to property and relevantly compare his normal unpracticed performance and the performance observed;

6)	There is not a substantial basis to believe that these test were medically tested to be medically reliable and accurate;

7)	There is not a substantial basis and believe that these tests have been subjected to meaningful peer review;

8)	There is substantial basis to believe that these tests have a substantial rate of error;

9)	There is not a substantial basis for believing that these tests have been universally accepted within the medical and/or scientific community as being accurate and reliable indicators of a person being intoxicated to the exclusion of other non-intoxicated reasons for not having the same normal mental and/or physical faculties of a perfectly average fictitious person;
	
10)	There is not a substantial basis for believing that either the methodology or technique utilized by the witness can be correlated to explicitly distinguish between the test performance of an intoxicated person and a perfectly average non-intoxicated person, and then to implicitly correlate those performances and the performance of the Defendant in this case.

PRAYER

	WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that this Honorable Court prohibit police officer expert opinion testimony on standardized field sobriety test reliability and accuracy on the Defendant’s performance on the tests given.

Respectfully submitted,

By:                                                               

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the above and foregoing Motion has been hand-delivered or mailed, postage prepaid, to the CrimDA/CtyAtty of ______________- County, Texas on the _____ day of ___________, 200__.

CAUSE NO. 

THE STATE OF TEXAS

V.

DEFENDANT
§	IN THE ____________-COURT
§
§	OF
§
§	_____________COUNTY, TEXAS
ORDER

	On this day came on to be heard the Defendant’s Motion to Prohibit Police Officer Opinion Testimony on Reliability, Accuracy and Results of Standardized Field Sobriety Tests Under R. 702, Tex.R.Evid., and after hearing the same it is hereby:
			GRANTED.
			DENIED (to which Defendant duly excepted).

	SIGNED on                                                                             .

							                                                              JUDGE PRESIDING