People ask me all of the time, “what should I do if I get pulled over for DUI?” Depending on how much you’ve had to drink, smoke, etc…, the answer to that question varies.

If you have been drinking, and/or if you are impaired, do not take the tests. Don’t take any of them. But, this blog post is specifically about the Horizontal Gaze Nystagmus (“HGN”) test. Yes, the dumbest thing to do at a DUI stop is to take the HGN test–under any circumstances. This is why:

The protocol in the National Highway Transportation Administration (“NHTSA”) DWI Detection and Standardized Field Sobriety Testing Manual is not only designed to help law enforcement detect your level of impairment, it guides officers in their efforts to collect evidence against you. When an individual refuses to give a blood, breath, or urine sample (“chemical test”), the officer is left to rely on his observations and the results of the Standardized Field Sobriety Tests (“SFSTs”).

In the age of the Mobile Video Recorder (“MVR”), or dash mounted camera, the arresting officer is not able to editorialize on what he sees. In other words, it is what it is. In contrast, years ago an intoxication report filled out at the time of arrest might have had all of the standard indicators: ‘Suspect had slurred speech, he was giving unusual responses to questions, he was stumbling around, etc…’ Today, the judge or jury can view the video, and make these determinations independently. In a close case (with no chemical test), the trier of fact may watch the video and make the finding that the driver was not appreciably impaired. Result: not guilty.

It seems pretty simple, doesn’t it? Be careful! There is one factor that can throw a wrench into the gears. It’s HGN test.

What is it? This is the test where the officer asks a suspect to hold his head still, and he instructs the suspect to follow a stimulus with his eyes. When done properly by a trained officer, it can be a very effective way of testing for impairment. This Youtube video explains how the test is conducted, and it depicts the clews that the officers are trained to look for. http://www.youtube.com/watch?v=9fQ2Zaiay2U

Based on the original research, if the officer observes four or more of the potential six clues, it is likely that the suspect’s Blood Alcohol Content (“BAC”) is over the legal limit. Using this criterion, a trained officer should be able to classify about 77% of his suspects accurately. The NHTSA Manual claims that this percentage was determined during laboratory and field testing.

So why is this test the “X” factor? Because there is no way to objectively verify what the officer sees. Yes, you can time and count the swipes by watching the MVR footage, but there is no way that you can see nystagmus (or lack thereof) in someone’s eyes from the video. Remember, police officers are like any other people in any other profession. Their degree of training, proficiency, and honesty varies.

Let me give you some examples:

HGN Convicts a Potentially Innocent Person

I represented a woman that was driving through Clifton (near the University of Cincinnati). Truth be told, she had a few drinks. She saw a sobriety check-point ahead, and she did a u-turn. A State Trooper observed the maneuver and made the stop.

My client was very composed. She did not have slurred speech, and she did not have difficulty conducting herself or moving around. She did, however, admit to having “a couple of beers.” This instigated an OVI investigation including the SFSTs.

The trooper took her outside the ambit of the MVR to conduct the HGN test. This is contrary to Ohio State Highway Patrol Policy. As a result, I was unable to watch the test being conducted on the MVR footage. The Trooper testified about how he administered the test at a pre-trial hearing. While on cross-examination, I was able to elicit some deviations from the protocol. The court, however, ultimately ruled that the trooper conducted the test in substantial compliance to the NHTSA standards. In spite of the trooper’s failure to follow OSP procedure, and in spite of the deviations, the judge determined that he would allow the results of the test into evidence.

In addition to the HGN, the state offered the results of the other SFSTs at trial.  After the trooper had conducted the HGN, he adjusted the camera to capture the remaining SFSTs. The judge watched the administration of the other tests. My client did very well on both the Walk and Turn test and the One Leg Stand test. This, however, did not keep her from getting arrested. She refused to take the breath test.

This was a very close case. At the culmination of the trial, the judge found that my client was appreciably impaired. In sum, he found her guilty of DUI. Why? He was swayed by the HGN. In a case where there was very little evidence, the HGN made the difference. Was she really impaired? We’ll never know.

The Absences of the HGN Substantially Weakens the State’s Case

In a different case, I represented a client that ran into a parked car, at about 1:30 AM, as he was driving away from RP McMurphy’s Bar and Pub in Oakley. You get the idea.

My client was shaken up as a result of the accident. Additionally, he had some physical limitations (back problems) that made it difficult for him to perform the SFSTs. He completed the Walk and Turn and the One Leg Stand tests with less than stellar results. The officer conducted the HGN test, and determined that my client exhibited six out of the six possible clues. In other words, in the opinion of the officer my client miserably failed the HGN test. My client was arrested.

At a pre-trial hearing, I was able to demonstrate that the officer did not conduct the HGN test properly. The judge determined that the test could not be used as evidence against my client at trial. As my client refused to take the breath test, this was a huge development.

The case proceeded before a jury, and it was not going well for the state. On the second day of trial, the prosecutor sensed that there was not enough evidence to convict my client. She offered a plea to a reckless operation, and he took it. There was a strong possibility that he would have been found not guilty at trial, but he took the “bird in the hand.”

Why did a seemingly tight case for the state go down the tubes? No HGN.

A Poorly Conducted HGN Saved a Drunk Driver

Finally, this is one of my favorite examples. A client of mine was pulled over in Terrace Park for a minor traffic violation. It was late at night, and he admitted to drinking a small amount of alcohol. The police officer ordered him from the vehicle, and she began to conduct the SFSTs. This client had significant physical limitations–he had severe nerve damage in his back and legs. He was unable to perform the Walk and Turn and One Leg Stand tests under any condition. So, after feeble attempts at performing those tests, the officer conducted the HGN.

This time, the officer found NO CLUES. In other words, she indicated that he passed the test. Based, however, on her other observations and his inability to perform the other SFSTs, she effected an arrest. My client submitted to the breath test, and he blew almost three times over the legal limit.

At a pre-trial hearing, I argued that the officer determined that my client passed the HGN test. Her decision to arrest was necessarily based on the other field tests–tests that my client was unable to perform because of his physical limitations. The decision to make an arrest on the strength of those tests was improper. The officer had insufficient probable cause to arrest. The judge agreed. The case was dismissed.

The Bottom Line:

What does this tell you? The HGN may have been thoroughly vetted in laboratory and field tests, but it is extremely unreliable in terms of how it translates into the courtroom. You may be pulled over by an honest expert that will render an accurate determination, or you may not. Do not leave it up to chance. The HGN can destroy you, regardless of your true level of impairment. Simply do not take the test.

Scott A. Rubenstein

OVI DUI Attorney, Cincinnati Lawyer