New Illinois Supreme Court Case - The HGN Test Is Not All It's Been Touted to Be

The Supreme Court of Illinois  in The People of the State of Illinois v. Joanne Mckown last week issued an opinion regarding the Horizontal Gaze Nystagmus (HGN) field sobriety test and made some remarkable findings. 

First, the Court held that the HGN test can not be used to show actual loss of the normal use of mental or physical faculties, but instead, can only be used to show that a "defendant may have consumed alcohol and may, as a result, be impaired."  There is no more of this, "they failed the HGN so they are therefore intoxicated" arguments.

Second, the Court held that just because a scientific test is regularly relied upon in law enforcement does not make it admissible in court.  The test is whether the particular test is relied upon in the scientific community, not the law enforcement community. 

Third, just because a test meets the standards for admissibility under Frye, that does not preclude the trial court from conducting a balancing test  and deem the evidence "inadmissible on grounds of undue prejudice."

Finally, the Court held that the test must strictly comply with the NHTSA standards for performing the test.  This means the cops aren't going to be allowed to come in a testify, "I did it the way I was trained to do it."  They are going to be held to the standard of the NHTSA.

Here's hoping the Texas Court of Criminal Appeals will at least read this opinion.  Even more importantly, here's hoping that the trial courts in Texas will read the case and understand that they truly are gatekeepers for the admission of evidence.

Harris County Prosecutors Using HGN Video in Trial - Good Trial Tactic?

One of the field sobriety tests that police often rely on in DWI investigations is the Horizontal Gaze Nystagmus (HGN).  Apparently the Harris County District Attorney's Office has recently started using a video in DWI cases that show what HGN looks like - presumably to influence jurors to give more weight to the HGN test.  

It seems that they have realized what many of us have known for years, jurors want to see it to believe it.  Jurors are sharper than most of us give them credit for.  Hearing a cop say he observed 6 of 6  clues on the HGN means relatively little to most jurors that I have spoken to.  However, if they had seen a video of the Defendant's eyes and the jerking the cop says he saw, I think they would feel much differently.  Here is a video that shows what HGN looks like.

Unfortunately for the prosecutors, the video they are showing to the jury is not the defendant or the defendant's eyes.  It seems any good DWI lawyer would quickly point this out to the jury.  It seems just as obvious another drawback for the prosecution - the technology does exist to look at a defendant's eyes and let the jury actually see the defendant's eyes.  Instead we get to tell the jury - the technology exists to record this so called HGN - prosecutor showed you that.  What he/she didn't show you was my DWI client's eyes.  Why?

HGN - Are Police Officers Really Reporting What They See or What They Think Will Get a Conviction

You may have heard of the police doing the "pen test" or "eye test."  What they are referring to is theHorizontal Gaze Nystagmus (HGN) test.  DWI police officers will tell you this HGN test is one of the standardized field sobriety tests they use to determine if you are driving while intoxicated.  

So what is HGN?  The test in essence is a measurement of the movement of the eyes.  Nystagmus refers to the involuntary jerking of the eyes back and forth.  Horizontal refers to the officer moving a pen or other object horizontally across your field of vision.

DWI officers claim that they are looking for three clues in each eye during this HGN test. 

The first part of the test is to determine if a DWI suspect's eyes are able to pursue smoothly - is there jerking in the movement of the eyes.  The next part of the test is to determine if there is nystagmus at maximum deviation - when the pen is held with your eyes as far out as they can go, is there nystgamus.  Finally, the officers are looking to see when the nystagmus occurs as they move the pen across your field of vision.  They are to mark off if they see nystagmus prior to a 45 degree angle.  Each eye is suppose to be checked twice for each of the 3 clues.  The total maximum number of clues for the test is 6.

What the cops don't normally tell you is that there are over 40 types of nystagmus that can naturally occur in an individual.  They also don't tell you that they can't differentiate these other 40+ types of nystagmus and they have not heard of most of the other types of nystagmus.  

According to the federal standards for the HGN, the officers are suppose to use objective criteria for administering the test and scoring the test.  More often than not, however, the officers simply just report that the DWI suspect has 6 of a possible 6 clues on the test.

As Houston DWI lawyers, we have seen hundreds of videos where the police perform the HGN.  Many of the officers that perform the test either do not know how to properly perform the test or choose not to do the test correctly which leads to falsely reporting results on this test.  I have yet to see an officer ask a client if he or she has naturally occurring nystagmus.

If you have been arrested for DWI, ask your lawyer how many clues the cop says you had on the HGN.  My bet is the answer you will get is 6 of 6.  What is your score on the HGN?

Even prosecutors know that practicing Field Sobriety Tests help

I was speaking to a young Harris County prosecutor recently about a DWI trial she had tried.  I asked her about the case and she said that she lost because the defendant did the field sobriety tests 3 times and only the 3rd results of the test were captured on video.  She said, "of course he looked good on the tests (on the video), he got to practice them 2 times before the tests were recorded."

So, what do I take from this?  It's obvious form this short conversation that at least some of the Harris County prosecutors understand that practicing these field sobriety tests are difficult for those that have never done the tests before.  There is also an acknowledgment that if given the opportunity to practice the tests (like the cops have done many, many times), a person accused of DWI may in fact not look intoxicated.  Yet, it's these same prosecutors that get up and demand that juries find these individuals guilty of DWI. 

Maybe a better course of action would be to have the cops give the tests 2-3 times before making a decision to arrest.  Maybe if the citizen is given the opportunity to practice, he/she would not look intoxicated.  I guess that would be too much to ask of our police when they are trying to label a citizen a criminal and stigmatize that person with a DWI / DUI conviction.

Image: Oregon DOT