Horizontal Gaze Nystagmus

Horizontal Gaze Nystagmus

Broward DUI Defense Lawyers have argued for years on the relevancy or lack there of with regard to field sobriety tests. Based on the evidence presented in a pretrial proceeding, a trial judge concluded that field sobriety tests do not tend to prove or disprove anything in issue because they do not deal with normal faculties. The judge decided that, if the tests do have any probative value, it is outweighed by the tendency to confuse the jury even if the state is not allowed to refer to them as scientific evidence. Thus, the court concluded that the tests are inadmissible for any purpose, with the possible exception of something like walking a line. Another trial court ruled that all the standard field sobriety tests, including the horizontal gaze nystagmus test (HGN), are admissible as part of drug recognition (DRE) evidence. This is the state of the law in Fort Lauderdale Driving Under the Influence cases. There need not be compliance with the Frye standards, but if such compliance were required, field sobriety tests would be admissible because they are generally accepted. If you have been arrested in Fort Lauderdale, the admissability of HGN results is unlikely due to a lack of qualified Broward County police officers.

Fort Lauderdale, DUI defense lawyers claim that all of these issues have been resolved by the Fourth District Court of Appeal in State v. Meador, and the Third District Court of Appeal in Williams v. State. In Meador, the court set forth these rules: (1) lay observations of psychomotor field sobriety tests (i.e. finger-to-nose, walk-and-turn, one-leg stand, and other physical tests) are relevant to prove impairment; (2) the probative value of such testimony is not outweighed by the danger of unfair prejudice, confusion, or tendency to mislead, if the test results are not characterized in a manner which unduly emphasizes the significance of the test results; (3) witnesses should avoid the use of any terms like ” ‘test,’ ‘pass,’ ‘fail,’ or ‘points’ which would elevate the significance of these tests above the lay observations of intoxication;” (4) lay observations of horizontal gaze nystagmus (HGN) tests are relevant; (5) the probative value of lay observations of HGN test results, “is outweighed by the danger of unfair prejudice, confusion of issues, and misleading the jury unless the traditional predicates of scientific evidence are satisfied,” which means proof of reliability, the qualifications of the operators, and the meaning of the results; and (6) because HGN testing is not new, and is generally accepted in the relevant scientific community, Frye is inapplicable.

In Williams, the court agreed with the conclusions in Meador in three ways. First, the court agreed that lay observations of psychomotor field sobriety tests are admissible. In addition, the court concluded that a lay person could testify as to blood pressure, pulse rate, temperature, pupil changes, and the conditions of a person’s nose or mouth.

The second point of agreement between Williams and Meador is as to the application of Frye to HGN tests. Both courts concluded that HGN “does not encompass new, novel or emerging scientific techniques.” Accordingly, both courts hold that the use of HGN to establish the presence of alcohol is generally accepted in the relevant scientific community and satisfies Frye.

The third area of agreement is unclear; however, it may be as to the required foundation for the introduction of HGN test results. Meador is very specific in concluding that the traditional scientific predicate must be established. Williams is less clear. The court said, “HGN test results … are admissible into evidence once a proper foundation has been laid that the test was correctly administered by a qualified DRE.” Given the court’s lengthy discussion of scientific evidence and its recognition that HGN tests are at least ” ‘quasi-scientific’ evidence,” it may be argued that the court intended that the traditional scientific predicate be established as a foundation. Williams clearly permits, however, “a qualified DRE” to give the necessary testimony for HGN test results to be admitted into evidence. Subsequently, in Bowen v. State, the court expanded the principle, and ruled that HGN test results are admissible in evidence when the evidence establishes that a properly trained and qualified officer correctly administered the test. That officer need not be a drug recognition expert (DRE). This ruling, however on it’s face was wrong when you consider our criminal justice system as a whole. The Criminal Lawyers at the William Moore Criminal Defense (Fort Lauderdale Office) have argued for years about the negative impact of lightening our grip on the US constitution in cases of Driving Under the Influence issues due to the fact that it is so complicated to investigate, prosecute and defend.

“It really seems like everyone has so have significant experience in the Florida DUI Justice System in order to be effective or even function in this arena.”

Fort Lauderdale DUI defense lawyers have pressed defenses with statistics:

This data tends to prove that extensive training and experience is neccessary for a Broward County police officer to obtain reliable results. In Bowen, the court found that a trooper, who received training on HGN testing during his 40 hour basic DUI training and had administered the HGN test about 1000 times, was qualified. In Peters v. State, the court gave an example of the training and experience that might be insufficient. In Peters, a three judge circuit court appellate panel ruled based on Melvin v. State, that an officer, who had completed the NHTSA course on HGN and administered 100 or more such tests, might have sufficient training and experience to administer the test. But that officer did not have the necessary scientific expertise to establish the foundation for the introduction of such evidence. On the other hand, in Reyes v. State, a three judge circuit court appellate panel ruled based on Bowen, that the trial court did not abuse its discretion in allowing an officer to testify as to the HGN procedure, where the officer had made 100 DUI stops and had hands-on training with impaired people in a DUI training course, but gave no testimony as to the number of times he had performed the HGN procedure.

While the focus in Bowen on the qualifications of the witness is clear, one statement in that opinion is somewhat confusing. The court wrote: “While the defendant expresses concerns about the reliability of the HGN test at roadside, the case law in this district addresses that problem by holding that there must be a confirmatory blood, breath, or urine test before the HGN evidence is admissible.” Based on that language, one circuit court appellate panel ruled: “There must be a confirmatory blood, breath or urine test before HGN is admissible.” On the other hand, Fort Lauderdale DUI lawyers endured several trial judges rejecting and setting procedure due to the conclusion that Bowen requires a blanket exclusion of HGN evidence without a confirmatory test. Instead, based on Williams, those judges found that HGN standing alone may not be used to establish a breath alcohol level.

Fort Lauderdale DUI defense lawyers have firmly established that HGN test results as to impairment cannot come into evidence through a lay person. The witness must either be a drug recognition expert or have similar special training and qualifications, but in one case the court considered whether an additional part of the foundation is that the officer performing the procedure administered not just a DUI evaluation, but also a Drug Influence Evaluation (DIE). The court rejected the defendant’s argument because there is no authority imposing such a requirement, and the DIE is only administered where the defendant has a zero or low alcohol reading and the officer suspects that the impairment is caused by drugs.


However, Broward DUI lawyers argue that none of the foregoing decisions address the fundamental question whether the tests are admissible when the evidence establishes that the defendant did not understand the instructions. A trial judge dealt with this issue. The court ruled that where the evidence supported the conclusion that due to a language barrier, which was exacerbated by officers’ efforts to deal with it, the results of the field sobriety exercises were inadmissible.

and Williams are the pivotal decisions in Florida on field sobriety tests. They are very detailed opinions, and should be carefully read in order to effectively consider matters of relevance and prejudice involving field sobriety tests.