OVERVIEW OF THE FIELD SOBRIETY TESTS AND THIS PAPER
A couple of decades ago, The National Highway Traffic Safety Administration (“NHTSA”) developed the Standardized Field Sobriety Tests (SFST). These tests were designed to detect the impaired driver. After development, NHTSA claimed the tests were the most effective means of detecting impaired drivers at the roadside when they are stopped. The SFTS’s are designed as divided attention tests. Divided attention tests require the driver to concentrate on more than on task, and accomplish these tasks successfully, in order to prove their sobriety to the officer. It is claimed the divided attention tests mimic the necessary ability to divide your attention while driving. Since a driver is required to control steering, brake a the right times and accelerate appropriately, the divided attention tests are said to test a person’s ability to effectively multitask. The inability to conduct the divided attention tests exactly as instructed is claimed to be proof positive of a person impairment while driving. The thought process behind this notion is that alcohol significantly reduces the ability to divide attention effectively between multiple tasks. People who have consumed alcohol are unable to satisfactorily divide their attention to handle multiple tasks at once. SFST’s are marketed as simulating the divided attention requirements of driving. The two divided attention tests which became part of the SFST’s battery the Walk-and-Turn and the One-Leg Stand.
This paper will deal primarily with nystagmus, its causes and how to deal with it at suppression and at trial. The Horizontal Gaze Nystagmus Test (Test) is considered to be the most scientific of all the field sobriety tests. Many consider it to be the most accurate. However, failing to administer the HGN correctly, lack of training and simply rushing through the testing case lead to unnecessary arrest and prosecution for DWI. By understanding the HGN, the science and the administration of the test, it becomes much easier to deal with the test and trial and to neutralize it.
That being said, buy the NTHSA Field Sobriety Training Manual and memorize it. Invest the money, its worth it. The manual provides instructions and analysis for conducting the field sobriety tests. It also details how to interpret the result of the field sobriety tests. Knowing this manual and having it handy during suppression and trial is your best weapon.
WHAT IS NYSTAGMUS
Alcohol ingested for intoxication purposes is known as ethyl alcohol or ethanol. Ethanol is found in beer, wine and liquors. Ethanol causes the impairing effects on driving. Drivers who have been drinking have slowed reaction. These slowed reaction times are thought to contribute to the inability to avoid becoming involved in an accident.
Nystagmus naturally occurs without the presence of alcohol. Nystagmus can be caused by problems Physiological problems influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, epilepsy all have been shown to produce nystagmus. Moreover, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure can create gaze nystagmus. The consuming purely legal over-the-counter substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption. Despite this whole litany of other-than-alcohol causes for nystagmus, the NHTSA manual summarily dismisses these causes as being . While NHTSA my flippantly these other sources of nystagmus, at least one Federal Court did not.
In a lengthy opinion, a Federal Court in United States vs. Horn discussed at length the different reasons that nystagmus may be present. The Court went so far as to suggest that it is so well know that nystagmus arises from causes other than alcohol, a Defendant may wish to ask the Court to take judicial notice of this fact. The Horn Court went on to list the following causes of nystagmus other than alcohol:
Problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff’s syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers, pain medication, and anti-convulsant medicine; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use.
Now that the definition of nystagmus is known, the different types of nystagmus need to be looked examined briefly. Chapter 8 of NHTSA’s DWI Detection and Standardized Field Sobriety Testing Manual contains a section entitled “Overview of Nystagmus” It lists the following types of nystagmus:
1. Vestibular Nystagmus is caused by movement or action to the vestibular system.
There are four types of vestibular nystagmus:
Rotational Nystagmus occurs when the person is spun around or rotated rapidly, causing the inner fluid in the ear to be disturbed. If it were possible to observe the eyes of a rotating person, they would be seen to jerk noticeably.
Post Rotational Nystagmus is closely related to rotational nystagmus: when the person stops spinning, the fluid in the inner ear remains disturbed for a period of time, and the eyes continue to jerk.
Caloric Nystagmus occurs when fluid motion in the canals of the vestibular system is stimulated by temperature as by putting warm water in one ear and cold in the other.
Positional Alcohol Nystagmus (PAN) occurs when a foreign fluid, such as alcohol, that alters the specific gravity of the blood is in unequal concentrations in the blood and the vestibular system.
2. Nystagmus can also result directly from neural activity
3. Nystagmus may also be caused by certain pathological disorders.
The idea behind the HGN is that alcohol slows/decreases the eye’s ability to track a stimulus (such as pen being moved across your field of vision). Alcohol will cause the eyes to jerk as they follow or track the stimulus. Without the introduction of alcohol in the body, it is though the person would be able to “normally track” the stimulus being moved across their field of vision. There is a direct correlation being a person’s blood alcohol concentration the intensity of the jerking of the eyes as they move to the side. The HGN test is supposed to identify intoxication by measuring the alcohol induced jerking of the eyes.
The National Highway Traffic Safety Administration developed the procedures that officers use to administer the HGN test. These procedures are provided to the officer in the DWI Detection and Standardized Field Sobriety Testing Student Manual.
CONDUCTING THE HGN TEST
The HGN test begins with the officer checking the eyes to ensure equal tracking and equal pupil size. Lack of equal tracking and equal pupil size can be indicative of head injuries or medical conditions unrelated to alcohol. NHTSA standardized the signs or clues which officers are to look for when determining if someone is intoxicated. These clues include lack of smooth pursuit, distinct nystagmus at maximum deviation and onset of nystagmus prior to reaching a 45 degree angle. To administer the HGN the officer holds a stimulus (usually a pen or finger) 12-15 inches in front of, and slightly above, the suspect’s nose. The officer keeps the tip of the stimulus slightly above the suspect’s eyes. The stimulus is to be moved smoothly in front of the eyes. The officer is looking for all three clues in both eyes. The procedure is to always start with suspect’s left eye. The three clues are looked for one at a time in the in the following sequence: (1)lack of smooth pursuit. It should take approximately 2 seconds to move the stimulus from in front of the subjects face to 45 degrees and the stimulus should be held at 45 degrees for two seconds; (2) distinct nystagmus at maximum deviation. Is should take approximately two seconds to move the pen to maximum deviation, where the pen should be held for a minimum of four seconds to discover the HGN (3) onset of nystagmus prior to 45 degrees. Again, the stimulus needs to be moved at a two second rate to maximum deviation and then held for a minimum of four seconds. The test sequence then needs to be repeated according to the NTHSA manual. Failure to administer this test correctly will result in the test being held unreliable.
This means that the officer should be passing the stimulus past each eye six times. Additionally, after the pen is moved across the eye it should be held still to check for nystagmus for a combined total of forty seconds, twenty seconds on each eye. Most officers will move the pen much too fast and will hold the eye at maximum deviation for much less time that is required by NHTSA. Be sure to check the video carefully and see if the officer conducted this test appropriately. If not, ask for a suppression hearing or a Texas Rule of Evidence 705 hearing and see if you can get the results of the test excluded and/or the officer excluded from testifying about the results. This will be discussed in greater detail later.
Remember that officers who are certified to administer field sobriety tests in Texas have gone through a one day training course. They were taught by other police officers how to conduct and interpret the tests. They were not taught by medical personnel how to identify the various types of nystagmus or how to differentiate between acute alcohol nystagmus and nystagmus brought on by other means.
NHTSA does not recognize the onset angle can be used to gauge/determine a person’s BAC. NHTSA has determined the standardized criteria for evaluating the HGN. A person can exhibit no more than six clues of horizontal gaze nystagmus. The officer is looking for a total of three clues in each eye. Four or more clues is said to be evidence of intoxication.
RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
A weapon is a Rule 705 hearing. I usually ask that the hearing be held pre-trial. Often times I will ask that the suppression hearing and the 705 hearing be held together in a bit of a hybrid type of hearing. This allows me to question the officer not only about the basis of the stop, but also about his/her qualifications.
(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert’s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
(b) Voir dire. Prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible.
(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request
The seminal case in Texas regarding the admissibility of the HGN is Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). Read this case and know it. “For testimony concerning a defendant’s performance on the HGN test to be admissible, it must be shown that the witness testifying is qualified as an expert on the HGN test, specifically concerning its administration and technique. In the case of a police officer or other law enforcement official, this requirement will be satisfied by proof that the officer has received practitioner certification by the State of Texas to administer the HGN. A witness qualified as an expert on the administration and technique of the HGN test may testify concerning a defendant’s performance on the HGN test, but may not correlate the defendant’s performance on the HGN test to a precise BAC.”
Two other helpful cases for HGN are: (1) State v. Rudd, 255 S.W. 3d 293, 301, 302 (Tex. App.–Waco 2008, pet. ref’d) where it was held it was within the trial court’s discretion to exclude HGN tests where the officer’s credibility was questioned because the tests were not performed on video; and (2) McRae v. State, 152 S.W. 3d 739, 743-44 (Tex. App.–Houston [1st Dist.] 2004, no pet.) The trial court abused its discretion when it admitted HGN results after it was established by undisputed testimony that the officer did not administer the tests correctly.
When doing a 705 hearing, show the Judge how the officer administered the tests wrong. Point the inconsistencies between the results of the tests and other “normal” activities. If you client was not swerving or weaving, had no problems responding to the overhead lights, not problems parking the vehicle and exiting the vehicle, etc., why would he have problems on the sobriety tests? Bias of the officer? Rush to judgment? These are all things to look for and point out to the Judge when trying to have the officer stricken from testifying.