Debunking the DUI "Eye" Test

In February of this year, the long anticipated decision in State v. Baity, 140 Wn.2d 1 (2000) was published and the battle over the admissibility of Horizontal Gaze Nystagmus (HGN) was thrust to the forefront. HGN is the side to side jerking of the eyeball, a natural phenomenon that can be exaggerated by the consumption of alcohol. The use of HGN in a DUI trial has been resisted by DUI defense attorneys for years in king County and elsewhere in Washington State. Most people who have been arrested for DUI in Washington State have been given the HGN test, or they refused it. Historically, HGN has been suppressed pretrial because prosecutors were not willing to conduct the necessary Frye hearing for its admissibility. Unfortunately, many courts have interpreted Baity as a confirmation that HGN meets the Frye standard in a typical alcohol DUI case and have given the nod to its use at trial. Baity, however, is not a typical alcohol drunk driving case. The issue in Baity is the admissibility of drug recognition evidence and the court discusses HGN in the context of drug detection. Specifically, the Court held that the forensic application of HGN to drug intoxication in the DRE context satisfies Frye. State v. Baity, 140 Wn.2d at 14 (2000). The Court also emphasized that our opinion today is confined to situations where all 12-steps of the (DRE) protocol have been undertaken. Id. at 17. Clearly, unless squarely within the context of a DRE investigation HGN is still be subject to a Frye challenge. Where trial courts interpret Baity as a green light for the admission of HGN, the DUI defense lawyer must vigorously object unless an appropriate foundation is laid prior to its use. Baity suggest that an appropriate foundation consists of a showing that the officer is properly trained and experienced and that the test was properly administered. The National Highway Traffic Safety Administration (NHTSA) field test manual discusses the proper administration of the test. It requires that the officer have the driver remove his glasses and that the stimulus be held 12-15 inches from the driver’s face. The stimulus must be held slightly above the eyes and there cannot be direct light in the eyes. The officer looks for three clues (each eye must be checked at least two times for every clue): 1. Lack of smooth pursuit (jerkiness or bounce) The left eye is observed first and it should take approximately two seconds to move the stimulus from directly in front of the eye to maximum deviation and back. 2. Distinct nystagmus at maximum deviation The stimulus must be held for four seconds or more at the side of the head when the officer cannot see the whites of the eyes. Most people will show nystagmus at maximum deviation for three or four seconds. It is only after the 3-4 second time period elapses that nystagmus at maximum deviation becomes a clue. 3. Onset of Nystagmus prior to 45 degrees The stimulus must be moved to the 45 degree angle two times with each eye taking about four seconds. If nystagmus is seen, the officer must stop and hold to see if it persists. If it does not, the officer should move on. If the nystagmus persists, the officer should double check to see that some of the whites of the eyes are still showing (to ensure that the angle is not beyond 45 degrees).If the necessary foundation is laid, the next issue becomes the purpose for which nystagmus will be used. Some state courts have only allowed its use to show the presence of alcohol in the driver’s system, others have allowed it as an indicator of impairment and some have gone so far as to allow the officer to use it to estimate whether a driver is over or under a certain BAC level (a purpose that NHTSA calls a misuse of HGN). If HGN is admitted in a DUI trial, you can find the necessary fodder to attack its reliability in Chapter 11 of Duane’s Clinical Opthalmology which is touted as the ophthalmologist’s bible and qualifies as a learned treatise. This manual is available in any medical library and/or the medical section of some public libraries. The chapter covering nystagmus explains HGN in detail and describes its limitations and shortcomings. If you have specific questions about the use of HGN in your case, feel free to contact any of us at Fox Bowman Duarte.