State v. Rose’s Empirical Analysis

Citation profile

33 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 34 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “(1) that the test be conducted by requiring a suspect to follow an object such as a finger, pencil or pen with his eyes as the object is moved laterally along a horizontal plane to the periphery of the suspect’s vision, and (2) that the indicators be interpreted and scored, one eye at a time, as follows: (a) the person administering the test is to observe how smoothly a suspect follows the object as it is moved to the periphery of the suspect’s vision. Jerking of the eyes rather than the ability to follow the object smoothly indicates the influence of alcohol; (b) the person administering the test is to observe whether or not a distinctive jerking occurs in the eyes at the maximum point of deviation when the eye moves to the far periphery of vision. Distinctive jerking is indicative of the influence of alcohol; and (c) the person administering the test is to observe the angle at which nystagmus occurs. Nys-tagmus occurring at or before the eye is looking at a 45-degree angle is indicative of the influence of alcohol.”

   2 later decisions quote this exact passage
   e.g. State v. Ostdiek · State of Missouri v. Gary Preston Browning, Jr.

2. ““Although [die officer] did not specifically state an opinion tiiat [die defendant’s] BAC would have registered at or above .10%, his testimony created a re markable inference that such was the case, and we find that the admission of such testimony was an abuse of discretion. A BAC of .10% is not a prerequisite to convicting for DWI. [Citation omitted.] In fact, a jury is still free to conclude that a driver is intoxicated even if the driver’s BAC is shown to be less than .10%. [Citation omitted.] ‘Intoxication is a physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.’ [Citation omitted.] Inasmuch as [State v. Hill, 865 S.W.2d 702 (Mo. App. 1993), overruled on other grounds State v. Carson, 941 S.W.2d 518 (Mo. 1997)], though the use of‘linguistic gymnastics’ (as characterized by the appellant), suggests that an officer who testifies that, in the officer’s experience, persons who score six points on the HGN test also register above .10% on the breathalyzer is not the same as testifying that the individual defendant has a particular blood alcohol content and is properly admissible, we think otherwise and hold that it is an abuse of discretion for a trial court to admit such testimony absent an adequate foundation which establishes the witness’ ability to determine that a person’s performance on the HGN test represents a BAC in excess of a certain level.” Rose, 86 S.W.3d at 100-01 .”

   1 later decision quote this exact passage
   e.g. 40 Kan. App. 2d 1103 - State v. Shadden

3. “If a question exists as to whether the proffered opinion testimony of an expert is supported by a sufficient factual or scientific foundation, the question is one of admissibility. It must be raised by a timely objection or motion to strike. Once opinion testimony has been admitted, as any other evidence, it may be relied upon for purposes of determining the submissibility of the case. The natural probative effect of the testimony is a consideration for the fact finder.”

   1 later decision quote this exact passage · from the concurrence
   e.g. State v. Honsinger