State v. McCrary
Case # A152321
Date Filed: 10-22-14
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A152321.pdf
Defendant McCrary was convicted of DUII and Reckless Driving. During McCrary’s trial, the Officer who arrested her was testifying about the horizontal gaze nystagmus (HGN) test he had administered prior to the arrest. The Officer testified that he routinely checks for resting nystagmus as part of his investigation before he administers the HGN. During cross-examination, defense counsel observed that the Officer’s notes and report did not contain information about the resting nystagmus test. On redirect, the State asked the Officer to check McCrary – right there in the courtroom – to see if she had resting nystagmus. The trial court overruled McCrary’s objections and stated in front of the jury that McCrary had no “constitutional right not to participate because it is not testimonial evidence.” McCrary now appeals and argues that (1) the request constitutes a search, (2) the trial court could not lawfully compel her to submit to the test, and (3) the choice to consent to the search or refuse to consent before the impaneled jury amounted to a violation of her right against self-incrimination.
The Court of Appeals notes that to constitute a search, an examination requires something more than observation of a physical characteristic that a person plainly manifests to the public. The resting nystagmus test would have required McCrary to engage in specific conduct – a focused gaze at a particular point for a particular amount of time – that would allow the Officer to “detect certain aspects of defendant’s physical * * * condition that [was] not detectable through simple observation” from where he was in the courtroom. Furthermore, revealing the presence of nystagmus implicates potential medical facts that an individual may wish to keep private. The Court of Appeals concludes that the resting nystagmus test is not simply an observation; it is a search. It is a search that was imposed upon McCrary without a warrant or an exception to the warrant requirement and, therefore, was unconstitutional. As such, the trial court erred when it advised the jury that McCrary had no right to refuse to cooperate with the test. The Court of Appeals therefore reverses and remands.