Patrick J. Silva - Attorney at Law
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26 Ways to Mess Up HGN Test
Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by silvaandsilvalaw.com, great lawyers helping great people. And now for your host, sought after speaker, avid mountain bike racer and renowned DUI trial lawyer, Patrick Silva.
Welcome back to the DUI Trial Lawyers Academy. This is your host, DUI trial lawyer, Patrick Silva. In today's podcast we're going to discuss 26 different ways in which the arresting officer can mess up the administration of the horizontal gaze nystagmus test. I have put this information into a cheat sheet, you can download it for free at duitriallawyersacademy.com. I'm not asking for anything, don't need your email. Just enjoy it, use it. You can actually make a demonstrative evidence chart for closing out of this document. Everything I'm discussing actually comes from Section 8 of the 2015 DUI NHTSA manual. So let's jump into it.
I'm just going to list these off and I'll discuss a little bit about these. If you're a course member, you'll have full discussions on the importance of each step and what to look for when you're doing a cross-examination and actually on how to cross examine the officer on these 26 different aspects. Let's start with, the officer did not give the HGN test by the numbers. They're actually in the NHTSA manual, a step-by-step procedure in the correct way. It's a 10 step process. There's actually in the next one, the officer did not know the 10 steps for proper administration of the HGN. Next one, the officer held the stimulus too high, that's higher than two inches above the bridge of the client's nose. The officer held the stimulus too low. The officer held the stimulus too close to the nose. The officer held the stimulus too far from the nose. The importance of each one of these is that it can cause a false indication of horizontal gaze nystagmus.
Next one, the officer did not properly check for equal tracking. The officer did not properly check for equal pupil size. The officer did not properly check for resting nystagmus. The officer did not know the correct clues. The officer did not know the correct order in which to check the clues. The officer did not ask the driver about brain damage, brain tumors or ear problems. The officer improperly gave the HGN test while a driver was sitting. The officer did not notice any sway or wobble during the test. The officer did not use a contrasting stimulus or pen light. The officer gave the tests with strobe lights or flashing lights on. The officer gave a test while the driver was facing traffic.
The officer moved the stimulus too fast, faster than the two seconds from the nose to the shoulder. The officer did not have a clear break in time between checking for equal tracking and the start of checking for lack of smooth pursuit. The officer started the test by moving the stimulus to the wrong side. The officer did not hold the stimulus for a minimum of four seconds during distinct and sustained nystagmus at maximum deviation. The officer moved the stimulus too far to the sides during checking the 45 degrees. The officer did not verify that the white remained in the corner of the eyes during the 45 degree check. The officer did not check for a vertical gaze nystagmus. The officer only checked once for each of the clues and not twice as required.
The officer improperly administered the tests evidenced by the fact it took him only let's say 20 or 30 seconds instead of the proper 90 seconds, it would take the do it right. You can actually use this as a template to create a cross-examination theme for each one of these areas. So let's take the officer holding the stimulus too high. You might ask a question like this, "Officer Jones, what's the proper height that you're supposed to hold the stimulus above the bridge of the nose in order to administer the horizontal gaze test correctly?" When we're talking about equal tracking, you might ask him a question, something like this, "Officer, how did you administer the horizontal gaze nystagmus tests when you were checking for equal tracking of the eyes?"
When we're talking about pupil size and resting nystagmus, you might say, "Officer, looking at the video it appears you did not check for equal pupil size. Did you in fact check for equal pupil size? Did you in fact check for resting nystagmus?" What I did here was create a cheat sheet for the 26 possible errors that the officer could commit during his administration of the HGN test. Each one of these areas could easily be developed into a two, three or six question cross-examination question. If you're part of our full course, you'll have access to that. In the meantime, you can get a copy of this free PDF chart, just visit duitriallawyersacademy.com.
Thank you for listening to the DUI Trial Lawyers Academy podcasts. Now put on the boxing gloves, climb into the ring and have a great fight.
Thank you for listening to the DUI Trial Lawyers Podcast. This episode brought to you by silvaandsilvalaw.com.
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