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LawTalk
LawTalk, Lawyer
Category: Criminal Law
Satisfied Customers: 27889
Experience:  30 years legal experience
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I need a legal case decision by higher court where HGN test

Resolved Question:

I need a legal case decision by higher court where HGN test by
police officer was thrown out because the police made the defendant
face toward passing traffic. The NHTSA says police should not do this since it
can cause defendant to fail test. How many HGN clues are possible?
Is the HGN TEST for drugs different than HGN test for alcohol?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  LawTalk replied 4 years ago.
Good morning,

I'm sorry to hear of your dilemma.

While I strive to give you an accurate and applicable answer to your question, and if I can possibly provide a legal avenue for you to have a successful legal outcome I will, I don’t have the ability to provide you with favorable law if it doesn't exist. As you read my answer to your question, I ask you to please don't shoot the messenger.

I'm afraid that you are on the wrong track in believing that by attacking the efficacy of the HGN (nystigmas test) in the presence of oncoming traffic is what is known as a red hearring. Even if you show that in your circumstance the test was administered in a faulty manner, it will not effect your case.

The test is based on the fact that alcohol affects the automatic tracking mechanisms of the eyes. Nystagmus is defined as "an involuntary rapid movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed." Alcohol slows down the eyes' ability to rapidly track objects and causes to eyes to oscillate, or "jerk", before they normally would in a sober person. Alcohol stimulates the nerve endings, making nystagmus more pronounced in intoxicated persons. As a person's blood alcohol concentration increases, the eyes will "jerk" sooner as they move to the side.

A positive nystigmas test by itself is insufficient to prove you are under the influence. That fact would be proved with other tests as well--typically blood, breath or urine.

Here is a good site to learn about the HGN test:

http://www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html

If your situation is such that you are being charged with a crime based SOLELY on an HGN test, let me know and we can discuss this further. However, having the HGN test alone put in douby will not serve as a workable defense to driving under the influence and similar such allegations.

I wish you well.

Best regards,

Doug


 

 

Customer: replied 4 years ago.

Hello Doug: Thank you for the answer. All they have is the HGN and I did notice

in the NHTSA that in order to use this in Court that the police can not deviate

from normal procedure. I found in there that they should never place defendant

toward passing traffic and that they MUST follow proper procedure as in NHTSA

manual. Does same test indicate alcohol and drugs. HOW MANY clues are

possible on the HGN.

 

Do you think there would be case law where this mistake by police has been

used? j

Expert:  LawTalk replied 4 years ago.
Good morning,

Well, the cops have probably cause to stop you and administer the nystigmus test in the first place.

However, when it comes to fighting this charge, case law alone will not help you. You will want to have expert testimony regarding the falability of this test in the presence of oncoming traffic. Each case has different fact patterns and varrying scenarios.

For example, nighttime testing is more subject to error if oncoming headlights cause a reaction. But if this occured in the daytime, headlights are not the issue. If you are arguing wind from passing cars--what if the wind from passing cars is less than the wind coming from the other direction. See what I mean.

You will want an expert, who has testified before with regard to the efficacy of the HGN test to review your specific situation and rule out the adequacy of the test. Simply pointing the court to a case whare the test was invalidated will not guarantee you your position.

Best regards,

Doug

Expert:  LawTalk replied 4 years ago.
Good morning,

Well, the cops have probably cause to stop you and administer the nystigmus test in the first place.

However, when it comes to fighting this charge, case law alone will not help you. You will want to have expert testimony regarding the falability of this test in the presence of oncoming traffic. Each case has different fact patterns and varrying scenarios.

For example, nighttime testing is more subject to error if oncoming headlights cause a reaction. But if this occured in the daytime, headlights are not the issue. If you are arguing wind from passing cars--what if the wind from passing cars is less than the wind coming from the other direction. See what I mean.

You will want an expert, who has testified before with regard to the efficacy of the HGN test to review your specific situation and rule out the adequacy of the test. Simply pointing the court to a case whare the test was invalidated will not guarantee you your position.

Best regards,

Doug

Customer: replied 4 years ago.

Hello Again Doug:

 

they did not have probably cause. I had a minor accident ( no damage to either car)

in parking lot of business. Before we leave this discussion could you answer how

many clues are possible in HGN test and if test for Alcohol is same as

test for Drugs. Thanks so much. j

Expert:  LawTalk replied 4 years ago.
Good morning,

Here is a quote from the site I provide you a link to: XXXXX XXXXX: Alcohol and Nystagmus:

“There are several types of nystagmus. Alcohol causes two types: alcohol gaze nystagmus, which includes HGN, and positional alcohol nystagmus. Although alcohol causes both, alcohol gaze nystagmus and positional alcohol nystagmus are very different and easily distinguishable. Testing for positional alcohol nystagmus is not a part of the standardized field sobriety test battery. Defendants sometimes claim or attempt to confuse matters by arguing that the nystagmus the officer saw was actually positional alcohol nystagmus and not alcohol gaze nystagmus.”

 

Nystagmus tests can be used for some drugs as well and the results are the same as with alcohol.

 

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you. A bonus would be appreciated when I have spent a lot of time assisting you and where our conversation has been in depth.

Best regards,

Doug

 

LawTalk, Lawyer
Category: Criminal Law
Satisfied Customers: 27889
Experience: 30 years legal experience
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