Utah DUI Attorney : Salt Lake City DUI Lawyer & Attorney : Glen Neeley : Serving Davis County, Ogden, Brigham City, Logan

 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

 

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 A man by the name of Callis called me the other day.  He was upset at a Utah Highway Patrol Trooper, Trooper Lisa Steed.  He wanted to talk with me, so I met with him to find out what his complaint was.  His case was over and dismissed, but the lasting affect it had on his life remains.  He was falsely arrested by an officer that jumped to too many conclusions.  This is how his case went down.

Callis was pulled over because he was weaving.  The police report is very descriptive of a horrible driving pattern.  Oddly enough, the video does not show such a driving pattern.  I admit, the driving pattern showed some drifting side to side just like a person does when they are tired.  Callis told Trooper Steed that he was tired.  Trooper Steed makes a descriptive list of the following clues:

1. slow reaction time, seemed tired
2. slow and slurred speech
3. swayed while standing
4. constricted pupils, droopy eyes, very slow movements.
5. No clues on the Horizontal Gaze Nystagmus
6. On the Walk and Turn Test:  couldn't keep balance, raised arms, missed heel to toe, stopped, improper turn, off line = 6/8 clues.
7. One Leg Stand Test:  Swayed, raised arms, and foot down = 3/4 clues.

At this point, Callis was arrested.  The interesting part about the field sobriety tests is that the Trooper violates all of the UHP policy and takes Callis off the video so no one can see what she did or what Callis did.  It appears that she has done this on multiple cases.

Trooper Steed asked Callis to take a blood test.  Callis says "yeah".  He voluntarily consents to another officer, a deputy, to come in, stick his arm with a needle, and draw his blood.  Callis asks Trooper Steed "can we do it asap, I will do it."  

Trooper Steed takes the blood vials and has them tested at the Utah Toxicology Lab.  She specifically asks the toxicology lab to test for two specific drugs along with their normal drug panel.

NO PRESCRIPTION DRUGS IDENTIFIED IN THE BLOOD.

NO ILLEGAL DRUGS IDENTIFIED IN THE BLOOD.

NO ALCOHOL IDENTIFIED IN THE BLOOD.

So here is an innocent man that has bad balance, maybe a little different in his speech, and is slow in his movements, and the police jump to the conclusion that he is impaired by drugs or alcohol.  So one has to ask, "why are we not tested on our balance when we are given a driver's license?  Why are we not given a speech test, a walk the line test, a one leg stand test?"  Many people do not have the ability, the physical ability, to do these tests.

I had the chance to ask the officer about this.  She stated that the lab did not test for the right drugs.  She will not admit to a mistake, yet she never asked that it be retested.  She specifically asked them to test for certain drugs.

Callis's license was suspended for 90 days, because of the officer's opinion.  The decision was eventually overturned.  Callis had to hire an attorney, make court appearances, and deal with the stress of being accused by the government over this officer's opinion.  It's been a couple of years since this happened.  Callis still lives with the pain of the whole experience.

Callis filed a letter of complaint with the Utah Highway Patrol and never heard anything back from them.  He was sad that he opened his newspaper one day in 2007 and saw that this Trooper was not being reprimanded for her conduct, but was being praised and given awards for nabbing hundreds of what she perceives as drunk drivers.

Callis authorized me to use his name and his story.  He indicated that he wanted to warn other people.  His trust in the police has been severely damaged.  A person is not required to do any field sobriety tests.  They are designed to make a person fail, even if the person has taken no substances.  You will never convince an officer that you are not impaired by doing the field sobriety tests.  You are just giving him evidence to use against you.  There is no consequence to your driving privileges for not participating in the officer's exercises.  You can refuse.  A polite "not without my lawyer" or "no thank you"  will suffice.  There are consequences of losing your license if you refuse to take the intoxilyzer  or chemical test after the officer has read you an admonition regarding the consequences of taking the chemical test.

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A DUI specialist from Lubbock Texas, Stephen Hamilton, wrote this interesting article about Field Sobriety Tricks.  He ended up with a case where the officer admits that that these tests are tricks.  The officer tells the citizen accused that these tests "are just part of the part of the field sobriety tricks."  Mr. Hamilton even shows you the small video clip.  It's worth checking out.

There are many posts that that talk about these tests.  They are designed to make the accused fail.  If you do not understand each and every instruction and do each part of the exercises perfectly, you could find yourself defending yourself from a DUI charge.

I see people all the time that fail these tests for reasons other than alcohol.  Maybe they have a physical problem that prevents them from being perfect on the tests.  Maybe they are just tired.  Maybe they lack the coordination.  Whatever the reason, innocent people fail these tests all the time.  Maybe in reality, the officer sees what he wants to see.  I had a UHP trooper admit to me that the UHP gives awards for the trooper who makes the most DUI arrests in one year.  Great motivation.

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In trial, the prosecutor's last question to a testifying officer is almost always "Officer, after these field sobriety tests, did form an opinion as to the defendant's ability to safely drive his car?"  The officer always answers, "I formed the opinion that the defendant was too impaired to safely drive a car."

The interesting thing about that opinion is the field sobriety tests were never validated to measure impairment.  They were only validated to give the officer an estimate of whether the person is over the legal limit.

Marcelline Burns and Jack Stuster, in their study entitled "Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent" writes on page 27 of the study as follows:

"Many individuals, including some judges believe that the purpose of a field sobriety test is to measure driving impairment.  For this reason, they tend to expect tests to possess "face validity,"  that is, tests that appear to be related to actual driving tasks.  Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities to driving tasks; that is, the tests seem to be relevant "on the face of it."  Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle.  The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment.

Driving a motor a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities.  It is unlikely that complex human performance, such as the required to safely drive an automobile, can be measured at roadside.

It seems as though that the person that developed and validated these tests is saying the officers are incorrect when the officer says these tests measure impairment. The developers say these tests estimate a person's blood alcohol content.

For the complete study, click here.

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Lawrence Taylor out in California wrote an article about how Field Sobriety Tests are designed to make you fail.  I could not agree more.  For example, the other day I was doing a trial down in Salt Lake City on a DUI.  During the break, before I was going to begin to cross examine the officer, I looked out in the hall and noticed that the officer was performing and practicing the Nine Step walk and Turn Test.  When she took the stand, I asked her:

    Q:  I noticed you were out there practicing the nine-step walk and turn test.
    A:  Yes, I was afraid that you were going to ask me to perform the tests for the jury, I was nervous.
    Q:  Did you allow my client to practice this test?
    A:  No, if he practices, he might be able to pass.
    Q:  Do you think he was nervous standing out on the street as people drove by yelling and with an officer standing there waiting to take him to jail?
    A:  Probably.

These tests are designed to make even an innocent person fail.  The tests are purely subjective.  The officer gives the citizen over thirteen detailed and very specific instructions to follow for the nine-step walk and turn test.  You are nervous, adrenalin is pumping through you just from the mere fact you were pulled over, and the officer wants you to walk on a tight rope.  Below is a video of a class room setting of how the Walk and Turn Test is conducted.  This is by no means how things work in the field.  Nothing is taken into consideration except alcohol.  If the person stumbles, the person may be tired, wearing thongs, or just plain uncoordinated.  If the person cannot remember even one of the thirteen instructions, the officer will consider him drunk.  The officer never tells the person the grading criteria.  If a person is truly drunk, it should be from obvious and specific clues, not small details that the person raised his arms more than 6 inches from his body or missed heel to toe by 1/2 an inch.  Notice in the video at least three clues of impairment that Utah officer's would note as clues of impairment.  Watch for the gentlemen stepping to the side of the line (or off line), notice that his right hand comes away from his side, and notice the sway while he was standing in the instruction stage.  That is merely my opinion.  The officers can form that exact same opinion from these minor clues.  It happens all the time.

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Many people come into my office and tell me about their field sobriety tests.  Often they say, "I know I passed the eye test, I did everything I was supposed to do on that test."  A person may have followed all of the instructions, but that is not the main purpose of the test.  The officer is looking for something that people don't even know they have.   This is called Horizontal Gaze Nystagmus (HGN).  It is a central nervous system disorder that can be caused by alcohol or other central nervous system depressants.  Some points to remember about HGN:

• HGN is an involuntary twitching of your eyeballs.
• You do not know that your eyeballs are twitching and it does not cause your vision to be hindered.
• You cannot practice this field sobriety test because it is involuntary movements of the eyeball.
• HGN will only indicate to an officer that there is alcohol in your system, it will not tell an officer the level of your blood/breath alcohol 

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Sometimes people are under the assumption that if an officer asks me to do something, they must do it. This scenario frequently happens when an officer requests a citizen to perform roadside field sobriety tests. “Do I have to do these tests?” The quick and easy answer to this is absolutely not. Many times an officer will pull a citizen over, make contact with the person, and smell alcohol. Many times an officer is pulling a person over for a minor traffic offense just to see if they can smell alcohol. Then, the officer says, “I just want to make sure you are okay to drive, I want you to perform some tests for me.” Many people mistakenly think they can prove their innocence to the officer and say sure no problem. You have a choice here. You can say “sure, no problem” or “you can say I’m sorry officer, I do not trust your grading criteria, I do not trust the accuracy of your tests, and I do not trust you. I do not want to take your tests.”  

   
Oh no, you just told an officer that you were not going to provide any more evidence to him!  What are the consequences? Some officers will arrest you and build their weak case from other clues of impairment. Some officers will realize they do not have enough evidence and let you go. (Rarely happens). Either you will most likely be going to jail if you the officer believes he smells alcohol. You can either go to jail having provided them evidence of your field sobriety tests, or you can go to jail with the officer mad because he has little evidence against you. You will increase your attorney’s chances of winning your case if you provide no evidence. Just so we are clear, there is no law that requires you to do field sobriety tests. There is no crime or punishment related to your failure to do field sobriety tests. Do not let an officer coerce you in to doing field sobriety tests. You will not pass them, even if you feel you do. Very rarely will an officer admit that a citizen that he arrested did fabulous on the field sobriety tests.

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