Most people who are stopped for DUII are baffled by the officer’s request to have them watch as he or she moves a pen back and forth across their field of vision. The test is known as the Horizontal Gaze Nystagmus Test and is used by DUII enforcement officers across the country.
In this test the officer is trying to observe a physiological phenomenon known as nystagmus, an involuntary jerking movement in the pupil as the eye tracks horizontally from side to side across the field of vision. The theory behind the test is that the officer can observe nystagmus at certain points in a person’s field of vision and correlate that to a person’s blood alcohol concentration. In the law enforcement community, this is the most important test to determine if a person is under the influence. Generally, it will be the first field sobriety test administered. Most officers believe that they can actually predict a person’s actual blood alcohol concentration from this test.
The HGN test is not without controversy. Because it is scientifically based test the prosecution must demonstrate that the results of the test are accurate and reliable in order to get them admitted into evidence, which involves laying an exacting foundation for the admission of the officer’s conclusion that his or her observations prove a person was under the influence.
The Oregon Supreme Court has previously held that, generally speaking, there is sufficient proof that an HGN test can provide proof of intoxication and a properly trained officer can so testify in court, if the test was be properly administered according to the “scientific protocols.”
The Oregon Court of Appeals dealt with the issue of what happens when the test is not properly administered. In State v. Ingram (Decided November 17, 2010) the Court dealt with a case where the arresting officer admitted that he had not followed his training in administering the HGN test and had not observed testing protocols. In Ingram, the Court of Appeals determined that, since the evidence is scientific in nature, failure to follow scientific protocols rendered the entire test inadmissible. The Court’s holding holds DUII officers to the requirements that they follow their training and perform the correct procedures in conducting the test.
As Oregon DUII Attorney’s we at James F. O’Rourke, Jr. and Associates vigorously assert our client’s right to have the HGN test evidence kept out of court if the police fail to follow the correct procedures for administering the test.
By James F. O’Rourke Jr.
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