Navigating DUI rights: Accessing legal expertise for informed decisions. Empowering individuals with knowledge and professional support on the road to justice.
In the early 1980’s a new type of DUI field sobriety test started gaining notoriety in the US amongst a few of the western states. Used initially only on an experimental basis, this test quickly spread in popularity and is now utilized by police agencies throughout the country. It’s called Horizontal Gaze Nystagmus (“HGN”), and together with the Walk and Turn and One Leg Stand, the three make up the federally approved Standardized Field Sobriety Test, or SFST. Not surprisingly, the SFST and more specifically, the HGN, has been the subject of controversy for many prosecutors, defense attorneys and judges when their results are presented as evidence during a trial. To understand the complexities and controversies the HGN brings to the legal system, you must first understand the science behind it.
What is HGN?
Essentially, the HGN is a measurement of eye movements. Nystagmus itself can be described as an involuntary jerking or bouncing of the eyeball that occurs when there is a disturbance of the vestibular (inner ear) system or the oculomotor control of the eye. HGN refers to a lateral or horizontal jerking when the eye gazes to the side. This nystagmus can be displayed in two ways: (1) pendular nystagmus, where the eye oscillates equally in two directions, and (2) jerk nystagmus, where the eye moves slowly away from a fixation point and then is rapidly corrected through a “saccadic” or fast movement. Most types of nystagmus, including HGN, are involuntary motions that cannot be controlled by the person exhibiting them. In fact the person isn’t even aware that it is even happening since the movements cannot be felt and have no affect on a person’s vision.
The HGN test claims to gauge intoxication by objectively measuring the involuntary jerking motions. Studies have shown that the eyes of a person under the influence of alcohol will begin to jerk sooner as compared to those of a sober person and the more intoxicated the individual is, the sooner the jerking will begin. How is it that the consumption of alcohol can have such a measurable effect on the level of nystagmus? It has to do with disruptions in the nervous system, the greater the amount of alcohol a person consumes, the greater the depressive effect on their central nervous system, and the greater an observable increase in the jerking of the person’s eyes transpires.
The National Highway Traffic Safety Administration (NHTSA) reports that if nystagmus is observed at an angle of 45 degrees, a blood alcohol content (BAC) of .10 can be correctly estimated 77 percent of the time. When combined with additional field sobriety testing, that figure can increase to 80 percent. When all three of these individual tests were compared to each other, the HGN was found to be the most powerful and accurate test. If law enforcement officers are correctly trained in the administration of the HGN, the test’s accuracy continues to climb to just about the 96% mark for determining a BAC of .10 or more.
Presenting HGN Results as Evidence at Trial.
Despite the strong correlation between alcohol consumption and HGN, some trial courts across the country still do not admit the result of the HGN test into evidence. As a result, law enforcement officers in a number of jurisdictions use the HGN only for purposes of establishing probable cause if at all.
With such a high accuracy rating, you might ask yourself why the lack of admission? The biggest drawback for the test is that there can be multiple causes of nystagmus, not just intoxication. According to one expert in the area of nystagmus, Dr. L. F. Dell’Osso, Professor of Neurology at Case Western Reserve University School of Medicine, and Director of the Ocular Motor Neurophysiology Laboratory at the Veteran’s Administration Medical Center in Cleveland Ohio “Using nystagmus as an indicator of alcohol intoxication is an unfortunate choice, since many normal individuals have physiologic end-point nystagmus; small doses of tranquilizers that would not interfere with driving can produce nystagmus; nystagmus may be congenital or consequent to neurologic disease. In fact, nystagmus may be caused by many other factors such as problems in an individual’s inner ear, influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, brain hemorrhage, and epilepsy as well as conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure which all may result in gaze nystagmus. Additionally, the consumption of common substances such as caffeine, nicotine, or aspirin can also lead to a level of nystagmus almost identical to that of alcohol consumption.
When courts are asked to determine the admissibility of scientific evidence such as HGN it must initially determine its relevance, meaning the evidence must be probative of material fact. If deemed relevant, the court then must address whether the jury is familiar with the underlying science, as well as determine whether such science is actually valid. Most jurors are not familiar with HGN, requiring expert testimony to aid the jury in determining the test’s probative value. The challenge is in conveying the strong correlation between the HGN test and impairment to the fact finder and showing how to effectively use the available evidence to prove the HGN test’s reliability and validity in court.
Various publications have suggested that the HGN test lacks the requisite reliability to be used as an accurate indicator of alcohol intoxication. Laboratory studies have indicated that simple tests such as the HGN were essentially worthless and there has never been any significant reason to believe that a method simple enough to use in the field and discriminating enough for evidentiary purposes would be found. However, other laboratory studies have shown that since its development in the 1970’s, the HGN was and continues to be a sensitive and reliable indicator of blood alcohol content. Recent field studies conducted in three different states, undertaken to ensure consistent reliability of the HGN test have shown that more than 90% of patrol officers’ arrests following and based upon data received from the administration of the HGN, were all correct. The accuracy of these arrest decisions were all confirmed by further analysis through breathalyzer or blood testing.
NHTSA has indicated that “the HGN test is an excellent indicator of impairment” and yet one study suggested that nystagmus at maximum deviation is present in about fifty-five to sixty percent of the general population when BAC’s are very low (about 0.03%) and sometimes in people who have not been exposed to any amounts of alcohol or drugs whatsoever. A possible explanation for this is that the likelihood of nystagmus showing at maximum deviation greatly increases as the person’s eye is fatigued. The study showed that a majority of DUI arrests occurred between 2 and 3 am possibly accounting for the increased fatigue. Another aspect of this study evaluated 53 videotapes from actual police cruisers recording the administration of the HGN test in the field. Out of the 53 officers recorded, only one officer conducted his test strictly adhering to the guidelines set forth through training, which raised serious reliability questions.
The U.S. Supreme court in Daubert v. Merrell Dow Pahramaceuticals, 509 U.S. 579 (1993), held that when expert evidence based upon scientific knowledge is offered at trial, the judge, should act as a gatekeeper and first determine if the evidence is reliable and valid. Daubert detailed 5 factors that must be considered when evaluating scientific evidence, they are:
Whether the expert’s technique or theory can or has been tested.
Whether the technique or theory has been subject to peer review publication.
The known or potential rate of error.
The existence and maintenance of standards and controls.
Whether the technique or theory has been generally accepted by the scientific community.
One of the factors that came out of Daubert was whether or not the science is subject to peer review. According to one study, highly critical of the HGN, this element has never been fulfilled. It has been suggested that the HGN test has been protected from review and criticism because the majority of the publications detailing the procedures implemented are usually found outside peer-reviewed literature and also because the test is intended to be taught and used by police departments as an enforcement function not as a scientific function. Some states require, for example, a degreed scientist with specialized training to testify as to validity of breath alcohol results, while the results of the HGN may be admitted through the testimony of a police officer bearing a certification of a short course of instruction taught by non-degreed instructional trainers.
Another problem often recognized by the courts regarding the HGN is that on occasion, administration during a road side traffic stop can lead to inconsistencies regarding the procedure used, most often resultant from varying environmental factors, changes in weather conditions and the suspected operator’s level of cooperation. The courts have accepted arguments that these variations from the standard procedures in the HGN administration may affect its validity, therefore rendering the HGN testimony inadmissible. Most of the legal challenges to the SFST’s and more specifically, the HGN have focused on the validity and reliability of the tests arguing that if any detail of the test departed from the guidelines set fourth by NHTSA, those departures would invalidate the test results. To complicate matters further, NHTSA conducted a study looking at over 900 independent examinations and concluded that no compelling evidence was found to invalidate the test. On the contrary, the data collected form the study further demonstrated the validity of the HGN test when both standard and varied testing procedures were used as these variations did not alter the occurrences or observations of HGN.
States Differ in Admissibility Decisions.
The acceptability of the test varies depending on the State. In New Hampshire a defendant appealed a conviction on the sole premise that HGN evidence should not have been admissible at trial. It was held that the test is admissible and affirmed the defendant’s conviction, while in New Mexico, the State Supreme Court found that although the State qualified a police officer as an expert in administering the HGN test, it failed to show the evidentiary reliability of HGN testing and reversed a decision, remanding it for a new trial. In Wyoming an appeal to the State Supreme Court upheld a District Court’s decision to suspend the appellant’s license after refusing to take a chemical test after his arrest for driving under the influence of alcohol stating there was foundation to admit the field sobriety tests because the arresting officer was trained and correctly administered them.
Time and time again the accuracy of the officer’s decision to arrest an individual suspected of operating while intoxicated is questioned when the officer relies upon the results of the SFST’s administered on the road side. It is difficult to analyze laboratory data in order to come up with a valid response to this question without actually looking at the results obtained from the field.
Consider the following excerpt from an actual DUI investigation police report. Here the operator exhibited all six cues for the HGN and although it wasn’t difficult to determine the operator was impaired due to all of the additional indicia noted, the HGN allowed the officer to accurately estimate the driver’s BAC to be above the 0.10 range:
"On October 27, 2007 at 2034 hrs, I was traveling southbound on Tower Hill Road exiting at the Wakefield exit. As I approached the stop sign on the exit ramp at the intersection of Old Tower Hill Road I witnessed a white vehicle pass my location at what appeared to be a high rate of speed. I executed a left turn and witnessed the vehicle proceed through a stop sign coming within inches of striking a pickup truck. The white vehicle then appeared to loose control as the rear of the vehicle went into a “tail spin” and the rear tires spun out of control. The vehicle regained control turning left onto the northbound onramp of Tower Hill Road at which time it quickly accelerated traveling a high rate of speed.
I pursued the vehicle, identifying its RI passenger registration to be BW513. The vehicle swerved left into the high-speed lane striking the median and immediately swerved to the right across two lanes of travel to the road’s shoulder. I activated my emergency lights and initiated a traffic stop. I observed the vehicle’s brake lights illuminate 4 separate times before coming to a complete stop.
As I made contact with the operator, I noticed a strong smell resembling that of an alcoholic beverage. Upon speaking with the operator who identified himself as John Doe DOB: 10-14-83, I observed that his eyes were severely bloodshot and watery. As he spoke the odor of an alcoholic beverage intensified and his speech was slurred. At this time I observed an open twelve pack of Budweiser Beer on the passengers front seat and three empty cans on the passenger’s floor and one empty can on the driver’s floor. I asked Doe to exit the vehicle and as he did, he stumbled twice needing to grab my left forearm with his right hand in order to prevent himself from falling. He voluntarily stated “I’m not drunk, I only had a few” and “don’t you guys have anything better to do tonight, like rescue a kitten or something?”. I asked Doe to submit to a Standard Field Sobriety Test and he verbally agreed. I chose an area free from debris and safely blocked by two patrol vehicles to administer the tests, turned off my front strobe lights, and had Doe face away from the patrol vehicles.
The first test I administered was the Horizontal Gaze Nystagmus. I explained the test to Doe and asked if he had any questions. He stated that he understood and was ready. Using my patrol pen as a stimulus, I held the pen approximately 12-15 inches away from Doe’s face and began to administer the test. I had to stop the test twice and begin again because Doe failed to follow the pen as instructed. Doe demonstrated poor tracking and lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and angle onset of nystagmus prior to 45 degrees, all in both his left and right eyes.
The second test I conducted was the Walk and Turn Test. I asked Doe if he had any medical condition that would prevent him from taking the test. He stated “no… what do you think I’m stupid? You’re the one… big brother… let’s do this!” in an excited manner. Doe was not able to stand while listening to the instructions, none of his steps touched heel to toe, and he stepped off the line on every step. On his fourth step he actually bent over approximately 70 degrees at the waist in a slow deliberate motion, turned his head towards me and stated “your test sucks… bet you can’t do this!”.
I asked Doe to perform the next test, The One Leg Stand Test. At this point he crossed his arms in front of him and stated “I’m good”. I asked him a second time and he looked at me for about 5 seconds without replying. I asked him a third time and he simply stated “you want a piece of me… come get some”. Based upon the operation of the vehicle, the elements displayed by the operator, and his performance of the SFST’s I advised Doe that he was under arrest at which point he took up a fighting stance. I proceeded to physically escort him to the ground in a safe and controlled manner and cuffed his hands behind his back with minimal resistance. Taking him into custody, I placed Doe in the rear of my cruiser and transported him to SKPD for processing. Throughout the transport he was screaming “You fucker… I will kick your ass… do you know how bad you fucked me?” Upon arrival at SKPD Doe appeared to have calmed down and was searched and secured for processing. Doe refused the right to a phone call and at 2145 hrs he signed the rights form that stated: I AGREE to take a chemical test at the officer’s request.
At 2147 hrs Doe took the first phase of the breathalyzer test. The results indicated that Doe’s BAC was 0.136.
At 2149 hrs Doe took the second phase of the test. The results indicated that Doe’s BAC was 0.147.
Conclusion
The debate surrounding the admissibility of the HGN will continue for years to come. Multiple State Supreme Courts have addressed the question of the admissibility of HGN evidence and at least ten of those courts have ruled in favor of allowing the evidence in at trial to show that a defendant was operating under the influence of alcohol. Numerous other states, including Texas, Alabama and Mississippi, do not permit HGN evidence to be admitted at trial. Other states admit it only if an expert witness lays a proper foundation showing that the test was administered correctly, and following good scientific procedures.
Ultimately, the science behind this and all tests administered on the road-side are contestable at best. The potential ability for inconsistencies and errors to be written away through creative report writing has serious implications on people’s free exercise of personal liberties. As an operator of a motor vehicle, if you find yourself faced with a DUI investigation your smartest option is in never submitting to any field sobriety tests, including the HGN. Most people do not realize they are 100% optional and voluntary. If you have submitted to sobriety tests, and are facing trial, seek out the best DUI lawyer you can, and let him or her bring in a DUI expert witness to educate your jury.
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