In investigating DUI cases police use a battery of three tests called the Standardized Field Sobriety Tests (SFST). One of these tests, the Horizontal Gaze Nystagmus (HGN) test, has been the subject of decades of litigation nationwide. Kansas Courts have found that HGN does not meet the Frye standard for admissibility of scientific evidence and have excluded it from use in court except for one limited circumstance.
Nystagmus is simply a jiggling or jerking of the eyeball. It can be caused by literally dozens of physical conditions, illnesses and diseases. It can also be caused by intoxication from alcohol or other drugs. Some people have a natural nystagmus. HGN is nystagmus which is evoked as the eye follows an object travelling in a horizontal plane.
Police officers are trained to administer the SFST by taking a three-day training course approved by the National Highway Traffic Safety Administration (NHTSA). Basically, officers are trained to move a stimulus, such as a pen with a lighted tip, in a horizontal plane before a subject's eyes and watch for nystagmus in six situations, three for each eye. They look for “lack of smooth pursuit”, which means the eyeball jiggles or jerks as it tracks the moving stimulus, rather than following it smoothly. They look for “distinct and sustained nystagmus at maximum deviation”, which means nystagmus that persists when the eyeball is gazing as far as possible to the side. And officers look for an “angle of onset prior to 45 degrees”. This means the officer tries to determine whether nystagmus starts before the eye has passed an estimated 45 degree point as it moves to the side.
Another cause of nystagmus is the improper administration of the HGN test. The training emphasizes that flashing lights in the area where the test is being administered can cause nystagmus. An officer can also cause nystagmus by moving the stimulus in an arcing or semicircular motion rather than keeping it on a horizontal plane. This commonly happens as the officer reaches across his body or far to the side.
The Kansas Supreme Court first addressed HGN in State v. Witte, 251 Kan. 313, 836 P. 2d 1110 (1992). The Court held that HGN is scientific evidence and subject to the Frye test for admissibility. It said that HGN did not pass that test and was not admissible in evidence. The Court revisited the subject of HGN six years later in State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998). In the time since Witte a few more states had found HGN met their admissibility standards so the government asked the Court to look at it again. The government, however, failed to put on any expert testimony about the “science” of HGN and the Court once again rejected the HGN test. Through the years since Chastain the government has tried to come up with a test case in Kansas in which they could try to put on sufficient expert testimony to show HGN is accepted in the relevant scientific community. For various reasons these attempts have fizzled out before coming to fruition.
Recently, in City of Wichita v. Molitor, 46 Kan.App.2d 756, 268 P.3d 513 (2013) the Kansas Court of Appeals considered whether HGN was admissible in a motion hearing for the limited purpose of establishing the reasonable suspicion necessary for an officer to request that a subject take a preliminary breath test (PBT). The Court noted that reasonable suspicion is a very low standard and that circumstantial evidence is admissible in a hearing on a motion to suppress, therefore HGN testimony would be allowed for this limited purpose. It should be emphasized that the Molitor court did not sanction HGN testimony for the purpose of establishing probable cause to arrest or as evidence of intoxication at trial.
However, the government, buoyed by this limited victory, has made it clear they are going to keep pushing for the more extensive use of HGN testimony in prosecutions. Without a doubt, the defense bar should be alert for prosecution attempts to expand the use of HGN testimony and oppose them at every turn. However, HGN testimony is not the strong evidence prosecutors assume it is. HGN, as noted above, may be caused by alcohol intoxication, but also has dozens of causes that have nothing to do with intoxication or driving impairment. Further, officers are trained to administer the HGN test in an exact, systematic way and, as someone who has seen the test administered literally thousands of times, I can tell you that the officers do it wrong nearly every time. Usually the test as given resembles a proper test hardly at all.
Any lawyer defending DUI cases will want to have a copy of the SFST training manual next to him or her on the counsel table. This is absolutely necessary in order to properly cross-examine the arresting officer on the administration of the SFST. Many DUI specialists will seek out and take a course to become certified by NHTSA in the administration of the SFST. There are even courses available to become NHTSA-certified as an SFST instructor. One of the best arrows in the defense lawyer's quiver is a superior knowledge of the proper administration of the SFST. Many police officers have forgotten how to properly administer the tests (if they ever knew) and I have never seen a prosecutor of Judge who has a clue. A humorous illustration of this is the recent case State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013). The Court, in passing, mentioned that the officer administered the HGN test and testified the defendant “showed a 45-degree nystagmus with no maximum deviation present and no vertical deviation.” That statement is utter gibberish but still made it into a published Kansas Supreme Court opinion. This means nobody involved in the trial of the case, including the arresting officer, had even a passing familiarity with the HGN test.
Kansas DUI Attorney Brian Leininger is certified by the National Highway traffic Safety Administration as a Standardized Field Sobriety Test practitioner and is also NHTSA-certified as a SFST instructor.
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