State v. Merritt

Per Curiam.

The sole question in this certified appeal is whether the Appellate Court was correct in concluding that the admission of testimony by an East Lyme police officer concerning the administration and results of a horizontal gaze nystagmus (HGN) test¹ in a prosecution for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1) was harmless error. The Appellate Court determined that the trial court had “abused its discretion” by admitting the officer’s testimony because the state had failed to introduce evidence in the trial court establishing the general acceptance of the HGN test in the scientific community pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). State v. Merritt, 36 Conn. App. 76, 91, 647 A.2d 1021 (1994).

The Appellate Court proceeded to review the other evidence presented at trial, however, and stated that it could not conclude that the testimony concerning the HGN test had affected the outcome of the trial and concluded, therefore, that its admission was harmless. Id., 93. We granted the defendant’s petition to appeal the merits of the Appellate Court’s conclusion.² After examining the record on appeal and after carefully considering the briefs and arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

1 The officer explained that the HGN test is administered by placing an object approximately fifteen inches in front of a subject’s nose, moving it from side to side and observing the subject’s eye reaction. State v. Merritt, 36 Conn. App. 76, 80, 647 A.2d 1021 (1994). The theory behind the HGN test is that there is a strong correlation between the amount of alcohol a person consumes and the angle of onset of the nystagmus. “Nystagmus is an abnormal and involuntary movement of the eyeballs from side to side or up and down, but usually from side to side.” (Internal quotation marks omitted.) Id., 84.

2 We granted certification to appeal limited to the following issue: “Did the Appellate Court correctly hold that harmless error occurred when the trial court improperly admitted horizontal gaze nystagmus test results and improperly allowed the jury to hear evidence that if eye jerking occurs prior to a forty-five degree angle a subject is more than likely above the legal limit of 0.10 of one percent for intoxication in a trial under General Statutes § 14-227a (a) (1)?” State v. Merritt, 231 Conn. 926, 648 A.2d 165 (1994).