City of Leawood v. Puccinelli

No. 118,165

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF LEAWOOD,
Appellee,

v.

ROBERT PUCCINELLI,
Appellant.


SYLLABUS BY THE COURT


1.
Standard field sobriety tests are not searches under the Fourth Amendment to the
United States Constitution or Section 15 of the Kansas Constitution Bill of Rights.

2.
The voluntariness of consent to a search is a factual question that the district court
determines. On appeal, we uphold its finding if it is supported by substantial evidence.

3.
In this case, even if field sobriety tests were considered a search under Fourth
Amendment standards, the district court's finding that the defendant voluntarily
completed them is supported by substantial evidence.

4.
While the results of horizontal gaze nystagmus (HGN) tests are not admissible in
Kansas courts for any purpose unless a proper foundation for their scientific validity is
made, evidence about the process of testing may be introduced if it is otherwise relevant.
Here, the defendant's ability to follow simple instructions was relevant, so the district
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court did not err in allowing evidence about—but not including the results of—HGN
testing.

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed June 22,
2018. Affirmed.

Thomas J. Bath Jr. and Mitch E. Biebighauser, of Bath and Edmonds, P.A., of Overland Park, for
appellant.

Marcia L. Knight, assistant city attorney, for appellee.

Before MCANANY, P.J., LEBEN and SCHROEDER, JJ.

LEBEN, J.: Robert Puccinelli appeals his conviction for driving under the influence
of alcohol, raising two points. We do not find either of them persuasive.

First, he argues that allowing a police officer to testify about how Puccinelli did on
field sobriety tests violated Puccinelli's Fourth Amendment right to be free from
unreasonable searches. But field sobriety tests aren't searches under the Fourth
Amendment at all. For the most part, the tests simply check for physical actions
associated with inebriation, something that a careful observer might learn simply from
watching the defendant.

Second, he argues that the district court shouldn't have allowed the officer to
testify that he had given Puccinelli the horizontal-gaze-nystagmus (HGN) test, a test that
hasn't been shown sufficiently based on science for its results to be presented in Kansas
criminal trials. But the test results weren't admitted in Puccinelli's trial. Instead, the
sequence of the officer giving instructions about the HGN test and Puccinelli's responses
was admitted mainly because of how much difficulty Puccinelli had in following simple
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instructions. That evidence was relevant in determining whether Puccinelli was drunk and
was properly admitted for that purpose.

FACTUAL AND PROCEDURAL BACKGROUND

Before we look in depth at the legal issues, we need to set out some of the factual
background. Because part of Puccinelli's legal argument is based on his claim that he
objected to doing the field sobriety tests but was ordered to do them anyway, we will
include the facts related to the voluntariness of his participation in those tests.

Puccinelli's encounter with Leawood police officer Andrew Bacon began in what
we'd generally call late on a Monday night in April 2016, though it was actually
12:45 a.m. the following morning. Bacon pulled Puccinelli over for failing to signal a
turn.

Puccinelli said he had come from a nearby Taco Bell and that he had thrown his
Taco Bell trash out the window. Bacon said he didn't see Puccinelli come from the Taco
Bell parking lot and asked if he'd been anywhere else. Puccinelli said he hadn't.

Bacon then said he'd seen Puccinelli come out of the parking lot of a nearby bar,
but Puccinelli denied having been there. He also denied having had anything to drink that
night.

Bacon said he was going to "have [Puccinelli] do a couple of things in the window
of the car to so [Bacon could] make sure [Puccinelli was] alright to drive." Puccinelli
agreed, but again denied having had anything to drink.

Bacon first asked Puccinnelli to do a fingertip-counting test. Although Bacon
explained it, Puccinelli said he didn't understand what Bacon wanted him to do. Then,
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after failing to do the test correctly, Puccinelli said he wasn't going to get out of the car
and that he hadn't been drinking.

Bacon then asked Puccinelli to recite the alphabet from C to N and to count
backwards from 83 to 62. Puccinelli couldn't do those tests correctly, either. At that point,
Bacon told Puccinelli to step out of the vehicle.

Puccinelli said he wasn't "comfortable with this." But Bacon told him, "Okay,
well, comfortable or not, you need to get out of the car." Puccinelli complied.

Bacon then began to give Puccinelli three standard field sobriety tests—the HGN
test, in which the person visually follows a moving object while the officer looks for
involuntary eye movements; the walk-and-turn test, in which the driver must walk heel to
toe in a line; and the one-leg-stand test, in which the driver stands on one leg while
counting out loud.

For the HGN test, Bacon told Puccinelli to stand with his feet together, arms down
at his side. Bacon told him to follow a pen being moved back and forth in front of him
without moving his head—only moving his eyes. Shortly after starting the test, Bacon
asked, "What do you want me to do, look at the pen?" Bacon again told Puccinelli to
follow the pen with his eyes, but Puccinelli quit doing that and looked directly at the
officer after only a short time. Bacon asked whether he was looking at the pen or the
officer. "You, now," Puccinelli replied.

At that point, Puccinelli made the first of several references to a desire to move on
to taking a breath test (using a machine called a "breathalyzer"): "Do you wanna give me
a breathalyzer, I mean 'cause I'm not drunk. So let's—let's move on with this," Puccinelli
said.

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Bacon instead asked Puccinelli next to do the walk-and-turn test. Puccinelli again
said, "Why can't we just do the breathalyzer?" But Bacon said "[w]e'll get to it." Bacon
then began giving instructions, but Puccinelli had trouble understanding them and said,
"I'm not going to do it. Give me the breathalyzer . . . ." After a bit more discussion,
Puccinelli did the walk-and-turn test.

Bacon then explained the one-leg-stand test. Puccinelli did it without objection.

In Bacon's opinion, Puccinelli failed both the walk-and-turn test (showing six of
eight clues for impairment) and the one-leg-stand test (showing three of four clues of
impairment). Bacon also had smelled an odor of alcohol coming from inside Puccinelli's
car, had noticed Puccinelli's eyes were bloodshot, and had noticed that Puccinelli had not
been able to follow simple instructions. Based on all of that, Bacon arrested Puccinelli.

After the arrest, Bacon took Puccinelli to a nearby police station and asked that he
take either a breath or blood test for alcohol. Puccinelli refused.

The City of Leawood charged Puccinelli with one count of driving under the
influence of alcohol and the separate traffic infraction of failing to signal a turn. Before
trial, Puccinelli asked the court to suppress the evidence of the field sobriety testing. We
don't have a copy of the motion he filed in the district court, but an earlier motion filed in
municipal court had alleged "an unlawful search of Mr. Puccinelli's person." The district
court denied the motion, concluding that field sobriety tests aren't a search under the
Fourth Amendment. Even if they were, the court also concluded that Puccinelli had
voluntarily consented to do the tests.

At the beginning of trial, Puccinelli also asked that the court preclude the City
from presenting any evidence that Bacon had administered one specific test, the HGN
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test. The City said it didn't seek to introduce the HGN test results, and the court denied
Puccinelli's motion.

The City's case was presented at a jury trial in district court. (Puccinelli had
appealed after his initial conviction in municipal court.) Both Bacon and Puccinelli
testified, and the jury also saw police recordings of their encounter.

Puccinelli told the jury that he had gone through the Taco Bell drive-through
window and had eaten in his car. After that, he said he had stopped at the nearby bar
Officer Bacon had mentioned during the traffic stop. Puccinelli admitted having one
mixed drink there and a "couple" of beers earlier in the day. He told the jury, though, that
he felt he had been sober enough to drive that night.

The jury convicted Pucinnelli of DUI and the failure to use a turn signal. The
district court sentenced him to serve 2 days in custody plus 12 months of probation. He
also received fines of $1,000 for the DUI and $100 for the failure to signal a turn. If
Puccinelli fails to satisfactorily complete his probation, there's an underlying 180-day
sentence that would have to be served.

Puccinelli then appealed to our court.

ANALYSIS

I. The District Court Properly Denied Puccinelli's Motion to Exclude All Evidence of the
Field Sobriety Tests.

Puccinelli's first argument is that his rights under the Fourth Amendment were
violated through the admission of evidence about the field sobriety tests. The Fourth
Amendment protects our right to be free from unreasonable searches and seizures.
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Generally a search may be conducted only with a warrant, issued on probable cause, or
when a recognized exception to the warrant requirement applies. See State v. Ramirez,
278 Kan. 402, Syl. ¶¶ 2-3, 100 P.3d 94 (2004).

One of the warrant exceptions is a search by consent. Puccinelli argues that field
sobriety tests "can be likened" to a consent-based search: If there's no consent, the
search—here field sobriety tests—aren't proper.

Puccinelli contends that he didn't voluntarily take the field sobriety tests, citing
statements he made like, "I'm not going to do it. Give me the breathalyzer . . . ." Thus, he
argues, he didn't consent to the field sobriety tests, and the court should have held the
tests constituted an illegal search that violated the Fourth Amendment.

But there are two problems with his argument. First, field sobriety tests are not
Fourth Amendment searches, so there can be no Fourth Amendment violation. Second,
the district court concluded that he voluntarily participated in the field sobriety testing,
and there's evidence to support its conclusion.

Let's start with the Fourth Amendment. It explicitly protects us "against
unreasonable searches and seizures." There's no dispute here that Puccinelli was seized—
he was driving a car and the officer made him stop. But that's not a violation of the
Fourth Amendment. Officer Bacon had seen Puccinelli commit a traffic infraction, the
failure to signal a turn, so the officer could lawfully stop the car. And once the officer
smelled alcohol, saw bloodshot eyes, and had some confusing answers coming from the
driver, the officer could reasonably extend the traffic stop to investigate whether
Puccinelli had been driving while intoxicated. See State v. Jones, 300 Kan. 630, Syl. ¶¶
1-6, 333 P.3d 886 (2014); State v. McClellan, No. 115,164, 2017 WL 839720, at *4-7
(Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. ___ (February 26, 2018).
Thus, Puccinelli hasn't challenged the constitutionality of his seizure.
8


Instead, he has challenged the officer's act of conducting field sobriety tests as an
illegal search. So the threshold question we must address is whether field sobriety tests
are a search at all.

We have a handy explanation of what's a search from a Kansas Supreme Court
opinion: A Fourth Amendment search occurs when "(1) the government obtains
information by physically intruding on a constitutionally protected area, i.e., persons,
houses, papers, or effects; or (2) invades a subjective expectation of privacy that society
recognizes as reasonable." State v. Talkington, 301 Kan. 453, Syl. ¶ 4, 345 P.3d 258
(2015) (citing Florida v. Jardines, 569 U.S. 1, 10-11, 133 S. Ct. 1409, 185 L. Ed. 2d 495
[2013]). The field sobriety testing done here was not a search under those criteria.

First, Bacon didn't intrude on any constitutionally protected area. He didn't make
physical contact with Puccinelli until after the field sobriety tests were done. The only
papers or effects the officer touched was Puccinelli's driver's license; Puccinelli had no
expectation of privacy in it—an officer can ask for a driver's license, registration, and
proof of insurance in any traffic stop. See Jones, 300 Kan. at 640. And the officer didn't
intrude here on Puccinelli's home.

Second, the three standard field sobriety tests done here—HGN, the walk-and-turn
test, and the one-leg-stand test—don't invade any area for which there is a reasonable
expectation of privacy. A majority of the Washington Supreme Court recently held in
State v. Mecham, 186 Wash. 2d 128, 134, 380 P.3d 414 (2016), that these tests are a
seizure but not a search when—as is true in Puccinelli's case—the driver has not yet been
arrested and there's a reasonable basis for the DUI investigation. We find persuasive the
four-justice plurality opinion in Mecham, which concluded that tests like these simply are
not searches. As they explained, there's simply no invasion of a reasonable privacy
expectation:
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"[Field sobriety tests] require a detainee to perform three activities: visually follow a
moving object while the officer looks for involuntary eye movements, walk heel to toe in
a line, and stand on one leg while counting out loud. None of these activities is private in
nature. Indeed, they are all physical characteristics that any observer might see upon
casual observation of a person under the influence of drugs or alcohol. [Field sobriety
tests] thus do not invade a person's reasonable expectations of privacy." 186 Wash. 2d at
142.

We do realize that not all courts are in agreement on this point. Some have held
that field sobriety tests do constitute Fourth Amendment searches. E.g., Commonwealth
v. Blais, 428 Mass. 294, 701 N.E.2d 314 (1998); Hulse v. State, 289 Mont. 1, 961 P.2d 75
(1998); State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994). More recently, Washington (in
the Mecham case) and Georgia have disagreed. See Mitchell v. State, 301 Ga. 563, 802
S.E.2d 217 (2017). We find the position taken in Mecham and Mitchell more persuasive.

Puccinelli didn't reveal any sensitive information during the sobriety tests that
would reasonably be expected to be kept private. He had no reasonable expectation of
privacy in his balance, coordination, or responses to simple mental-acuity challenges, like
a divided-attention task. These simply show physical characteristics and responses that
could have been seen in the neighborhood bar or when he chose to get into his car and
drive on public streets. See Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L.
Ed. 2d 576 (1967) ("What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection.").

Indeed, the United States Supreme Court has held that no Fourth Amendment
rights are violated by a government actor requiring a suspect to provide handwriting
samples or to read a text so that it might be recorded. See United States v. Mara, 410 U.S.
19, 21, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973) (handwriting sample); United States v.
Dionisio, 410 U.S. 1, 14, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) (voice sample).
10

"Handwriting, like speech, is repeatedly shown to the public, and there is no more
expectation of privacy in the physical characteristics of a person's script than there is in
the tone of his voice." Mara, 410 U.S. at 21. By contrast, the Supreme Court has held that
taking blood, obtaining a DNA sample, or removing scrapings from underneath a
fingernail—the physical removal of tangible evidence—does constitute a Fourth
Amendment search. See Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed.
2d 696 (2013) (blood); Maryland v. King, 569 U.S. 435, 133 S. Ct. 1958, 186 L. Ed. 2d 1
(2013) (cheek swab for DNA); Cupp v. Murphy, 412 U.S. 291, 295, 93 S. Ct. 2000, 36 L.
Ed. 2d 900 (1973) (fingernail scrapings).

We agree with the Georgia Supreme Court that "[a] field sobriety test appears to
us to be an act more akin to a handwriting or voice exemplar than the physical removal of
tangible evidence." Mitchell, 301 Ga. at 570. So we conclude that field sobriety tests do
not constitute searches under the Fourth Amendment.

Puccinelli also claimed that the field sobriety tests violated Section 15 of the
Kansas Constitution Bill of Rights. But he provided no separate analysis under the
Kansas Constitution, and our Supreme Court has held that Section 15 "provide[s] the
same protection from unlawful government searches and seizures as the Fourth
Amendment to the federal Constitution." State v. Daniel, 291 Kan. 490, Syl. ¶ 5, 242 P.3d
1186 (2010). We therefore find that field sobriety tests do not constitute searches under
Section 15, either.

The second problem with Puccinelli's argument is that the district court concluded
that he voluntarily took the field sobriety tests. So even if those tests constitute a Fourth
Amendment search, the exception to the warrant requirement for consent searches would
apply. See State v. Parry, 305 Kan. 1189, 1195-96, 390 P.3d 879 (2017).

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Puccinelli raised this issue in the district court on a pretrial motion to exclude
evidence about the sobriety tests. The district court specifically found as a factual matter
"that he did not refuse to take the test[s], and took these tests voluntarily." The court
noted that the officer "was extremely polite during the entire process" and "never even
raised his voice." The court also recognized that Puccinelli sometimes said things like he
wasn't comfortable with the process or let's move on to the breath test, but concluded that
he wasn't refusing to take the tests and voluntarily did so.

When we review the district court's ruling on a motion to suppress evidence, we
generally follow two rules for appellate review. First, we must accept the district court's
factual findings if they are supported by substantial evidence. Second, we then
independently review its legal conclusions. State v. Keenan, 304 Kan. 986, 993, 377 P.3d
439 (2016). When appellate courts consider a district court ruling about consent to
search, though, the Kansas Supreme Court has held that the voluntariness of the consent
is a factual issue that "appellate courts review to determine if competent evidence
supports the trial court's findings." State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015
(2007); accord State v. Ransom, 289 Kan. 373, Syl. ¶ 2, 212 P.3d 203 (2009). Here,
there's substantial evidence to support the district court's conclusion that Puccinelli
voluntarily complied with the officer's request that he do the field sobriety tests.

When the officer first asked Puccinelli to get out of his car, he said he was "not
comfortable with this," but he quickly got out of the car after the officer said he needed to
do that. And an officer at a traffic stop has an absolute right to have a driver get out of the
car. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977).

On the second test—the walk-and-turn test—Puccinelli's objections were mainly
that the street where the officer asked him to do the test wasn't flat. After some
complaints about the slope, Puccinelli began his approach of asking to move on to the
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breath-test phase at the first. Officer Bacon said he needed to go in order—and when
Bacon suggested using a flatter driveway rather than the street, Puccinelli agreed:

Puccinelli: "Why can't we just do the breathalyzer?"

Bacon: "We'll get to it."

Puccinelli: "And I can show that I'm not going to do that, so . . ."

Bacon: "I have to do the whole thing when I do it. That's the last thing, okay, so just bear
with me here."

Puccinelli: "Sure."

Bacon: "You're going to imagine a line that's going to run from where your foot's at all
the way to the front of my car and back to where you're standing at again. What I need
you to do now is take your left foot and put it on that line. This line's completely straight.
It's approximately the width of your foot."

Puccinelli: "I—it's—I'm—it's—I'm not going to do it 'cause it's not—it's not flat."

Second Officer: "Okay. Why don't we use that driveway? It's a straight line."

Puccinelli: "Sure."

Puccinelli argues in his appellate brief that he requested three times to "move on
with this," meaning to skip over the field sobriety tests and proceed to a breath test. But
the example we've given above typifies what happened. Bacon would say that he needed
to go step by step, and Puccinelli would then agree to do so. On the facts, then, there's
support for the district court's conclusion that Puccinelli proceeded voluntarily.

13

In making its ultimate finding on voluntariness, a court must consider all the
circumstances; no single factor is determinative. State v. Thompson, 284 Kan. 763, 803-
04, 811-13, 166 P.3d 1015 (2007). Here, of course, Puccinelli had been stopped—seized,
in Fourth Amendment terms—by the officer. He wasn't free to leave the scene. But
Puccinelli acted as if he could refuse to do the tests requested by the officer; he said
directly that he wasn't going to do some of what he was asked to do. On the walk-and-
turn test, for example, he initially said he wouldn't do the test because the street wasn't
flat enough. When offered an alternate location, the nearby driveway, though, he agreed
to proceed. Ultimately, he did all three of the field sobriety tests. We conclude that the
district court's finding that he did so voluntarily is supported by substantial evidence.

II. The District Court Properly Allowed Evidence of Puccinelli's Failure to Follow
Simple Directions during the HGN Test while Evidence of the Results of that Test Were
Excluded.

The second issue on appeal relates solely to the HGN testing. As part of that test,
an officer observes a person's eye movements to get a measure of whether the person is
intoxicated. That's something based on scientific principles and well beyond the
knowledge of jurors. So our Supreme Court has held that "before the results from an
HGN test may be considered by a Kansas court for any purpose, the State must establish
the reliability of such a test in a district court within this state." City of Wichita v. Molitor,
301 Kan. 251, Syl. ¶ 2, 341 P.3d 1275 (2015).

At Puccinelli's trial, the City didn't present evidence of the HGN test result. But
the City did present a video showing the officer's interaction with Puccinelli during the
HGN test. The City said it did so to show that Puccinelli wasn't able to follow simple
instructions, something that might well be an indicator of inebriation.

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Puccinelli made a pretrial motion to exclude all evidence related to the HGN
testing, which the district court denied. A district court may grant such a motion before
trial when (1) the evidence would be inadmissible and (2) a pretrial ruling, rather than a
ruling during trial, is justified because the mere mention of the evidence at trial may
cause unfair prejudice or confusion. State v. Shadden, 290 Kan. 803, Syl. ¶ 3, 235 P.3d
436 (2010). The starting point for analysis, then, is whether the evidence was admissible.

To determine whether the evidence was admissible, we look to see whether it's
material and probative, as required of evidence for it to be relevant under K.S.A. 60-
401(b). Evidence is material if the fact it proves "has some real bearing on the decision in
the case." State v. Torres, 294 Kan. 135, 139, 273 P.3d 729 (2012). Evidence is probative
"if it furnishes, establishes, or contributes toward proof." State v. Coones, 301 Kan. 64,
78, 339 P.3d 375 (2014). In other words, the evidence must tend to make a fact that's of
consequence in determining the case more or less probable than it would be without the
evidence.

On appeal, we review the district court's decision that the evidence was material—
of consequence in determining the case—independently, with no required deference to
the district court. We review the district court's decision that the evidence was
probative—tending to make the consequential fact more or less probable—only for abuse
of discretion. State v. Magallanez, 290 Kan. 906, Syl. ¶ 4, 235 P.3d 460 (2010). A district
court abuses its discretion if no reasonable person would agree with its decision or the
decision is based on a factual or legal error. State v. Mosher, 299 Kan. 1, 3, 319 P.3d
1253 (2014).

The key fact here was Puccinelli's level of intoxication. Since he refused breath
and blood tests, there was no mathematical data available to the jury. So the jury had to
rely on other evidence.

15

The City argued that Puccinelli's inability to follow simple instructions during the
HGN test helped to show how intoxicated he was. Puccinelli counters on appeal that
because HGN test results aren't admissible because their validity hasn't been shown, his
"manner of performing the test is no more material than the results." We disagree.

The City made no attempt to present the results of the HGN tests. But it presented
both video of the HGN testing (with redactions for any portion that might have
referenced how Puccinelli was doing) and Bacon's testimony.

As we noted in our earlier factual summary, Bacon told Puccinelli to use his eyes
to watch a pen moving back and forth in front of him. Yet shortly after beginning the test,
Puccinelli asked, "What do you want me to do, look at the pen?" Bacon explained it
again, but after briefly watching the pen, Puccinelli started looking directly at Bacon
instead. When asked at trial whether Puccinelli had been "able to follow your
instructions" on that test, Bacon replied, "He did poorly at it."

The jury had the opportunity to view the videotape and hear testimony from both
Bacon and Puccinelli. Being unable to follow simple instructions was probative because
it made it more probable that Puccinelli was intoxicated. And that was a fact of
consequence so it was material.

We do recognize that our Supreme Court has directed that the results of HGN
testing may not be admitted for any purpose unless the State (or here, a municipality) first
comes into court and proves that test's scientific reliability. Molitor, 301 Kan. 251, Syl.
¶ 2. We do not believe our ruling here undercuts that holding in any way. The jurors in
this case weren't told anything about the results of the HGN test, and they were instructed
not to make any assumptions about portions of the videotape that had been removed. Nor,
as far as we can tell, did any party even hint at the HGN results to the jury. While
Puccinelli claims in his brief that jurors might have heard Bacon's response ("He did
16

poorly at it.") as a comment on the test results, that answer came in response to a simple
question: "Was he able to follow your instructions?"

Unless the scientific reliability of HGN testing is first proved in a Kansas court,
trial courts and attorneys should be careful to make sure that HGN test results are neither
mentioned nor presented in such a way that the jury would make an inference about the
results. Doing so would violate the Molitor ruling. In this case, though, Puccinelli's
inability to follow instructions was relevant evidence—and perhaps the clearest example
of this came during the HGN testing. We find no error in the district court's admission of
that testimony.

The district court's judgment is affirmed.

* * *

SCHROEDER, J., concurring: I concur in the result but I write separately to caution
prosecutors in the use of video footage of the administration of the HGN test. The safest
path might be to ignore or redact that portion of the video. Here, the video was admitted
to show Puccinelli failed to follow the officer's instructions while he was trying to
administer the field sobriety tests, including the HGN. Although the video was properly
admitted in this case, using video of the HGN test risks getting too close to the exclusions
in City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015), requiring reversal of
the conviction. This seems a harsh penalty for the slight benefit of showing a defendant's
inability to follow simple instructions during the administration of the HGN test. To be
safe, I caution against the use of videotape of the HGN test.