Are Various Field Sobrety Tests Including Horizontal Gaze Nystagmus Test Testimonial In Nature ?

In People v. Berg, 92 N.Y.2d 701, 708 N.E.2d 797, 685 N.Y.S.2d 906 (1999), the Court of Appeals addressed the issue of whether various field sobriety tests, including the Horizontal Gaze Nystagmus (HGN) field sobriety test, were testimonial in nature. The Court of Appeals stated "the results of field sobriety tests such as the Horizontal Gaze Nystagmus ... are not deemed testimonial ..." and "thus, results of such tests may be introduced despite failure of police to administer prior Miranda warnings." In People v. Sawinski, 246 A.D.2d 689, 667 N.Y.S.2d 472 (3d Dep't 1998), the Third Department concluded that the evidence submitted at trial supported a conviction of Operating a Motor Vehicle While Intoxicated. the Court noted, without comment, that the admitted evidence established that the defendant failed five field sobriety tests including the HGN test. In both these cases, the Court appeared to have assumed the admissibility of the HGN test without directly addressing the issue of its acceptance in the scientific community. Finally, in People v. Klein, 226 A.D.2d 127, 642 N.Y.S.2d 829 (4th Dep't 1996), the issue of admissibility of the HGN test was presented directly to the Appellate Division, Fourth Department. In Klein, the Court declined to address the defendant's contention that the trial court's admission of the HGN test was improper. The Klein Court held that the issue was not preserved for review and the Court refused to exercise its power to review the issue in the interest of justice.