Utah DUI Cops' Eye Test (HGN)...Is it Valid?
The Horizontal Gaze Nystagmus Test is a field test that officers across the nation, including Utah, use to determine whether a person is impaired. Is the test valid? The officer is not an opthamalogist and uses no scientific equipment to check a person's eyes.
He is not trained by anyone who has scientific training with the eyes. On a good day, the National Highway Traffic Safety Administration studies say this test is at least 77% accurate at determining whether a person is above a .10 (now claim it is effective at .08). A recent study that was published by the New Jersey Neuroscience Institute indicate that too many people have a natural nystagmus (involuntary bouncing/twitching of the eye). Here are the highlights:
**GEN=Gaze Evoked Nystagmus
- A significant number of normal subjects have physiologic GEN at gaze angles as small as 10°.
- Studies suggest that it is present in over 50% of the normal population and is more common in fatigued subjects.
- Despite the wide range of conditions other than alcohol toxicity which can cause GEN and even though the test and formulas are
under extreme scrutiny, it is currently accepted by courts as evidence equal to chemical testing. - At 10° and 20° respectively, 21 % and 34% of the subjects demonstrated physiologic GEN.
- We found an unexpectedly high frequency of GEN at 10° (21 %) and 20° (34%),which was similar at all ages.
- The current minimum gaze angle of appearance of nystagmus at which the person "passes" is 45°. Not only does our study show that there is a significant amount of nystagmus occurring at
smaller gaze angles, but our maximum angle on extreme lateral gaze averaged 42.7°; which was much less than the minimum amount required to "pass the test." The majority of our subjects (93%) would fail this test out in the field.
If an officer conducts a field test on anyone, regardless of alcohol consumption, there is a good chance he will see nystagmus. Should the officer be allowed to testify that he saw bouncing eyeballs and therefore, the citizen accused was impaired? Absolutely not! The only person I want looking at my eyes is a trained eye doctor that is not looking to take me to jail. There are too many variables when this test is given by an officer on the street. The test is just too unreliable. The link below is the study itself.
www.utahduilawblog.com/uploads/file/PHYSIOLOGIC GEN OCCURS AT SMALL ANGLES BY WHYTE 2009.pdf
Attorney.org recognized Utah DUI Attorney Law Blog (
I was asked by a client two years ago to take over his case. He had another lawyer; he pled guilty and was on the verge of being sentenced. I agreed to represent this man and filed a motion to withdraw his guilty plea before he was sentenced. The judge allowed the plea to be withdrawn. The man’s case just did not sit right. The man claimed he did not have anything to drink that day and gave me specific details of what he did that day. He was pulled over, arrested, and charged with DUI. Here’s the thing. The man did not trust the breath test, so he begged for the officers to give him a blood test. The officers refused and said take my breath test. The breath test came back so high that it was unbelievable to the man. Again, he asked for a blood test. Again, he was denied. He was booked into jail.
I recently represented a lady on her second accusation of a DUI. The first accusation she plead guilty. I appealed it for her because there was no evidence that this woman was impaired to any degree. The officer arrested her because she went through a red/yellow light and smelled alcohol on her. That was it. Case was reduced to red light violation. This second accusation was interesting. The officers get a dispatch call that two people are arguing in her front yard. The police show up and see a man yell something at a woman. The woman yells something back. Officers could not identify what the words were. The woman started her car and drove away. The police chased her down and pulled her over.
