Horizontal Gaze Nystagmus - Blessedly Complicated
A few weeks, ago I had a DMV hearing with an officer where we talked about the field sobriety tests. During the officer's direct testimony he indicated that he had followed all of the NHTSA procedures and protocols. Of course, he said he had observed a number of clues and that based on these clues he suspected my client was under the influence of intoxicants. Since I've been a DUI lawyer for a while, none of what the officer said surprised me.
What did surprise me is how little the officer knew about the Horizontal Gaze Nystagmus test. The officer was quite good at describing HGN. He knew just what he was looking for, and by golly he found it. He was also very eloquent at describing what the presence of HGN meant to him. He did not, however, seem to know how to actually perform the test. Incidentally, here is a video of what the officer was supposedly looking for.
On cross-examination, I asked the officer a number of standard leading questions. When it came to the test itself though, I just started asking open-ended questions. When I asked the officer how far he held his pen from my client, he said "about 18 inches." The latest NHTSA SFST training manual says that the stimulus is to be held 12 to 15 inches from the subject's nose. Right away, the officer had admitted that he conducted the test incorrectly.
In this case, the testimony came out in a DMV hearing. It ended up that the HGN was not a significant factor in that proceeding. If this case goes to trial, however, the testimony the cop gave at the DMV hearing could prove to be very useful. As I have pointed out in my recent post about FSTs and weight, if standards are not followed the entire test is compromised.
Different lawyers have different styles, and indeed I don't do it the same way every time. There are a number of ways to show that an officer doesn't know the test and more importantly didn't do it right this time. Any good lawyer will tall you, it's important to use a style that works for you. This simple example is just an illustration of a fundamental principal of DUI defense: when the government designs a complicated test, they will probably screw it up.
