HORIZONTAL GAZE NYSTAGMUS TEST

        In State v. Ito, 90 Hawai'i 225, 978 P.2d 191 (Hawai'i App. 1999), the Intermediate Court of Appeals stated:

Nystagmus is a well-known physiological phenomenon that has been defined by one medical dictionary as "an involuntary rapid movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties." Dorland's Illustrated Medical Dictionary 910 (26th ed. 1981). See also Sloane-Dorland Annotated Medical-Legal Dictionary 381 (Supp. 1992). HGN or jerk nystagmus is a particular type of nystagmus "characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk or recovery in the direction of gaze." The Merck Manual of Diagnosis and Therapy 1980 (14th ed. 1982). Stated otherwise, it "is the inability of the eyes to maintain visual fixation as they are turned from side to side." 8 Am. Jur. 2d Automobiles and Highway Traffic 1082, at 632 (1997).

It is undisputed that there are many factors that can cause nystagmus: problems in an individual's inner ear labyrinth; physiological problems such as influenza, streptococcus infection, vertigo, epilepsy, or measles; conditions such as eye muscle fatigue, sunstroke, or glaucoma; changes in atmospheric pressure; and consumption of substances such as caffeine, nicotine, or aspirin. See 1 R. Erwin, Defense of Drunk Driving Cases 10.09[5], at 10-43 (3d ed. 1999) (Defense of Drunk Driving); M. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 9, at 455 (1989) (4 Am. Jur. POF 3d); National Highway Traffic Safety Administration (NHTSA), United States Department of Transportation (DOT), No. DOT HS-0806512, Improved Sobriety Testing (1984) (1984 NHTSA Instruction Manual), reprinted inDefense of Drunk Driving  10.99[2], app. at 10-93.

However, it has been well-documented through research studies over the years that alcohol intoxication affects eye movement and nystagmus becomes more pronounced with alcohol consumption. Comment, Can Your Eyes Be Used Against You? The Use of the Horizontal Gaze Nystagmus Test in the Courtroom, 84 J. Crim. L. & Criminology 203, 207 (1993) (Comment, 84 J. Crim. L. & Criminology); A. Moenssens, J. Starrs, C. Henderson, & F. Inbau, Scientific Evidence in Civil and Criminal Cases 3.10, at 205-06, & n.1 (4th ed. 1995) (Scientific Evidence in Civil and Criminal Cases); E. Fiandach, Handling Drunk Driving Cases  7.10, at 7-25 to 7-28 (2d ed. 1995). During the 1970's, these studies prompted the NHTSA, acting under the auspices of the DOT, to conduct research into the effectiveness of various psychophysical tests that could be administered by police officers in the field to evaluate persons suspected of DUI. See 1 Defense of Drunk Driving 10.02, at 10-13; 4 Am. Jur. POF 3d  1, at 445. Based on this research, the NHTSA, in 1977, formulated and endorsed for police use a battery of three FSTs--the walk-and-turn, the one-leg-stand, and the HGN--that were determined after research to be the most effective for detecting alcohol impairment. Comment, 84 J. Crim. L. & Criminology at 207; 1984 NHTSA Instruction Manual, reprinted in 1 Defense of Drunk Driving  10.99[2], app. at 10-91. In 1984, the NHTSA published an instruction manual on the proper techniques for administering the FSTs. Comment, 84 J. Crim. L. & Criminology at 207; 1984 NHTSA Instruction Manual, reprinted in 1 Defense of Drunk Driving  10.99[2], app. at 10-90 to 10-98.

The HGN test

is based on the observation of three different physical manifestations which occur when a person is under the influence of alcohol: (1) the inability of a person to follow, visually, in a smooth way, an object that is moved laterally in front of the person's eyes; (2) the inability to retain focus and the likelihood of jerking of the eyeball when a person has moved his or her eye to the extreme range of peripheral vision; and (3) the reported observation that this "jerking" of the eyeball begins before the eye has moved 45 degrees from forward gaze if the individual's BAC [(Blood Alcohol Content)] is .10 [percent] or higher.

Scientific Evidence in Civil and Criminal Cases  3.10, at 206 (footnote omitted).

The only equipment needed to administer the HGN test is a stimulus, such as a pen, penlight, or the officer's finger. The stimulus is positioned about twelve to fifteen inches in front of a suspect's eyes. 1984 NHTSA Instruction Manual, reprinted in 1 Defense of Drunk Driving  10.99[2], app. at 10-93. As the officer gradually moves the stimulus towards the suspect's ear and out of the suspect's field of vision, the officer observes the suspect's eyeballs to detect three signs of intoxication: an angle of onset of nystagmus (measured from the suspect's nose) of forty-five degrees or less; distinct or pronounced nystagmus at the eye's maximum horizontal deviation; and the inability of the eyes to smoothly pursue the stimulus.  Note, Horizontal Gaze Nystagmus: A Closer Look, 36 Jurimetrics Journal 383, 384 (1996) (Note, 36 Jurimetrics Journal). The officer scores one point for each sign of intoxication per eye, the maximum score being six points. A person who takes the HGN test and receives a score of four or more points is classified as having a BAC of over 0.10 percent. Id.

90 Hawai'i at 95-96.

 In Ito, the ICA stated:

Before HGN test results can be admitted into evidence in a particular case, however, it must be shown that (1) the officer administering the test was duly qualified to conduct the test and grade the test results, Toyomura, 80 Hawai`i at 26, 904 P.2d at 911; and (2) the test was performed properly in the instant case. Montalbo, 73 Haw. at 140, 828 P.2d at 1281. See also Schultz v. State, 664 A.2d at 63; State ex rel. Hamilton v. City Court, 799 P.2d at 860; State v. Taylor, 694 A.2d at 911-12

90 Hawai'i at 109.

   In Ito, the ICA described the "applicable standards" for determining whether: (1) the officer administering the test was "... duly qualified to conduct the test and to grade the results"; and (2) "... the test was performed properly" as follows:

The 1984 NHTSA Instruction Manual, the result of exhaustive research studies, sets forth the applicable standards governing the administration and scoring of the HGN test. 1984 NHTSA Instruction Manual, reprinted in 1 Defense of Drunk Driving  10.99[2], app. at 10-90 to 10-98. These standards were recently refined in the 1995 NHTSA Student Manual. 1995 NHTSA Student Manual, reprinted in part in 1 Defense of Drunk Driving  10.06[5], at 10-27 to 10-30.

90 Hawai'i at 103.

   In Ito, the ICA described the correct technique for administering the HGN test as follows:

In 1984, the National Highway Traffic Safety Administration (NHTSA) published Improved Sobriety Testing, a manual which contains instructions on administering the Horizontal Gaze Nystagmus (HGN) test. NHTSA, United States Department of Transportation (DOT), No. DOT HS-0806512, Improved Sobriety Testing (1984) (1984 NHTSA Instruction Manual), reprinted in 1 Defense of Drunk Driving  10.99[2], app. at 10-90 to 10-98. The NHTSA updated these instructions by issuing DWI [(Driving While Intoxicated)] Detection and Standardized Field Sobriety Testing, Student Manual in 1995. NHTSA, Transportation Safety Institute, DOT, No. HS 178 R 10/95, DWI Detection and Standardized Field Sobriety Testing, Student Manual (1995)(1995 NHTSA Student Manual), reprinted in part in 1 Defense of Drunk Driving 10.06[5], at 10-27 to 10-30. The 1995 NHTSA Student Manual explains how the HGN test works, provides instructions as to how an officer is to estimate the angle at which nystagmus begins, and sets forth the following specific procedures which an officer should follow in administering the HGN test:

Begin by asking "are you wearing contact lenses", make a note whether or not the suspect wears contacts before starting the test.

If the suspect is wearing glasses, have them removed.

Give the suspect the following instructions from a position of interrogation (FOR OFFICER KEEP YOUR WEAPON AWAY FROM THE SUSPECT):

"I am going to check your eyes."

"Keep your head still and follow this stimulus with your eyes only."


"Keep focusing on this stimulus until I tell you to stop."

Position the stimulus approximately 12-15 inches from the suspect's nose and slightly above eye level. Check the suspect's eyes for the ability to track together. Move the stimulus smoothly across the suspect's entire field of vision. Check to see if the eyes track the stimulus together or [if one] lags behind the other. If the eyes don't track together it could indicate a possible medical disorder, injury, or blindness.

Next, check to see that both pupils are equal in size. If they are not, this may indicate a head injury.

Check the suspect's left eye by moving the stimulus to your right. Move the stimulus smoothly, at a speed that requires about two seconds to bring the suspect's eye as far to the side as it can go. While moving the stimulus, look at the suspect's eye and determine whether it is able to pursue smoothly. Now, move the stimulus all the way to the left, back across suspect's face checking if the right eye pursues smoothly. Movement of the stimulus should take approximately two seconds out and two seconds back for each eye. Repeat the procedure.

After you have checked both eyes for smooth pursuit, check the eyes for distinct nystagmus at maximum deviation beginning with the suspect's left eye. Simply move the object to the suspect's left side until the eye has gone as far to the side as possible. Usually, no white will be showing in the corner of the eye at maximum deviation. Hold the eye at that position for approximately four seconds, and observe the eye for distinct nystagmus. Move the stimulus all the way across the suspect's face to check the right eye holding that position for approximately four seconds. Repeat the procedure.

After checking the eyes at maximum deviation, check for onset of nystagmus prior to 45 degrees. Start moving the stimulus towards the right (suspect's left eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Now, move the stimulus to the left (suspect's right eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Repeat the procedure. NOTE: It is important to use the full four seconds when checking for onset of nystagmus. If you move the stimulus too fast, you may go past the point of onset or miss it altogether.

If the suspect's eyes start jerking before they reach 45 degrees, check to see that some white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you either have taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.

NOTE: Nystagmus may be due to causes other than alcohol. These other causes include seizure medications, [phencyclidine], inhalants, barbiturates and other depressants. A large disparity between the performance of the right and left eye may indicate a medical condition.

Id. at 10-28 to 10-29 (emphases in original).

The 1995 NHTSA Student Manual also establishes the following procedure for interpreting the HGN test:

You should look for three clues of intoxication in each eye.

1. The eye cannot follow a moving object smoothly.

2. Nystagmus is distinct when the eye is at maximum deviation.

3. The angle of onset of nystagmus is prior to 45 degrees.

If you observe four or more clues, it is likely that the suspect's BAC is above 0.10. Using this criterion you will be able to classify correctly about 77 percent of your suspects with respect to whether they are above 0.10. That probability was determined during laboratory and field testing and helps you weigh the various field sobriety tests in this battery as you make your arrest decision.

* * *

[HGN] can be observed directly and does not require special equipment. You will need something for the suspect to follow with the eyes, but this can be as simple as the tip of your index finger, penlight, or pen. The stimulus used should be held slightly above eye level, so that the eyes are wide open when they look directly at it. It should be held about 12-15 inches in front of the nose for ease of focus. Remain aware of your position in relation to the suspect at all times. . . .

Id. at 10-29 to 10-30.

90 Hawai'i at 96-97.

   Ito is a great case for the defense.  It is often difficult, if not impossible, for the prosecution to lay a proper foundation for the admission of HGN evidence.  Mr. Mac Master has successfully blocked the admission of HGN evidence against his clients in several DUI cases by raining down "no foundation" objections to create a hailstorm of BBs upon the prosecution's dancefloor.  It is also worth noting that Ito only addressed the issue of whether HGN evidence is admissible to establish that there was probable cause for the arrest.  Ito did not address the issue of whether HGN evidence is admissible on the ultimate issue of whether the defendant was intoxicated.  As far as Hawaii's case law goes, that issue is still unchartered waters. 

   Even if a proper foundation can be laid, the defense should still object to the use of HGN evidence for anything other than proving that there was probable cause to make the arrest.  In order to avoid poisoning the judicial well with a lot of testimony about how badly the defendant's eyes were jerking around during the HGN test, Mr. Mac Master often stratigically opts to stipulate that there was probable cause to make the arrest, while still reserving the right to contest the ultimate issue of intoxication.  If the prosecution will so stipulate, there is no longer any need for it to present any HGN evidence.

 

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