Patrick J. Silva - Attorney at Law
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HGN Prove Officer Shortcut the Test
Welcome back to the DUI trial lawyers Academy. This podcast is brought to you by Silva and Silva law.com, great lawyers, helping great people. And now for your host sought after speaker avid mountain bike racer and right now, DUI trial lawyer, Patrick Silva.
Welcome back to the DUI trial lawyers Academy. This is your host DUI trial lawyer attorney Patrick Silva. Today, We're going to be talking about the Horizontal Gaze Nystagmus Test. I'm going to refer to it as the HGN test. What I'm going to specifically talk about today is how are you going to prove in court that the length of time under the NHTSA guidelines is one minute and 30 seconds in order to properly administer the test if you're the officer? Why is that important? Why? Because if we go back to section eight, page 13, it says that if the officer deviates or changes any of the criteriums or clues or he doesn't do it right, then the validity of the clues that he sees is compromised. That section basically says, if you don't do it right, what you see could be wrong. So, let me talk a little bit about how can you prove that it's a minute 30. I'm going to give a brief overview of how the officer's supposed to do it.
And then I'll go through the time sequence. Just remember that there's going to be seven passes on each side of your client's eyes. So, the officer's going to move the stimulus seven times to your client's left and seven times to your clients right and each sequence is going to have a speed estimation, it's going to have a holding estimation. So, let me get going on this.
The very first thing that the officer's going to check for is equal tracking. He wants to make sure that both eyeballs are tracking the stimulus at the same speed that the person doesn't have a dead eye, a false eye, et cetera. So, he's going to do basically a few preparatory things before he gets started with the tests. And he's going to be checking for equal tracking and why he's looking at he's going to be making sure that your client has equal pupil sizes and then your client does not have resting nystagmus. Resting nystagmus is prevalent in a small portion of the population, but a person who has no alcohol in their system could have a naturally occurring eye bounce. This is going to take normally between nine to 15 seconds.
When he checks for lack of smooth pursuit, he's going to take the stimulus. I'm going to say his finger and he's going to place it in the center of your clients nose about 12 to 15 inches away and he's going to move it to your client's left. And it's going to take two seconds from the nose out to the 45 degree. So, that's going to be two seconds out, two seconds back, two seconds to your client's other side in two seconds back. Just know that when I'm talking about speed of travel from center to the outer point, it's going to be a two second time delay. And when your officer is checking for lack of smooth pursuit, this is going to take about four seconds. It might be a little quicker, but let's just make it four seconds because that's a fair estimation. Two seconds out, two seconds back, two seconds out, two seconds back.
Okay. And then when he's checking for equal pupil size, that's going to be about two to three seconds because he's making sure that your client doesn't have a head injury. And then when he's checking for rustiness state Ms. Dell, how do you prove this? You're going to take my word for it? No. Along with the participant manual, from the NHTSA manuals, there's instructor manuals. If you go to section eight, page 39, that's where this time estimations come from. And then we get into the actual test.
There's three parts to the test. The first part is called lack of smooth pursuit. That's first thing that the officer's going to be looking for. If we're talking about the NHTSA DUI manual, that's going to be on section eight, page 27 and the officer's going to test for lack of smooth pursuit twice. That means he's going to take his finger from the center of the client's nose out to the client's left two seconds back to the nose, to the left, back to the nose. Then he's going to repeat that one more time to the client's left the cross of the nose to the client's right and then back to center, that's checking it for lack of smooth pursuit again, section eight, page 27. And if the officer doesn't know that he's supposed to do that twice, well, guess what, you're going to remind him. That could be found on section eight, page 34 and 35.
And then another, your area where you want to point out is how fast do you move the stimulus? The officer might say, Oh, one second is fast enough. Now, if he's moving it from center to the [inaudible 00:05:41] in one second, that's going to be too fast and that's more than 30 degrees per second. That's going to cause a naturally looking nystagmus when it's not really there. Where can you find the speed? Well, section eight, page 35. And it's going to tell you center to right side two seconds, right side back to center two seconds, center to left side two seconds, left side back to center. Again, that's on section eight, page 34 and 35. And then it tells you to do it again. That's on page 34 and 35 of section eight and then you do it again, center to right, right to center, center to left, left side back to center.
If you add those up, it comes to 16 seconds. The second part of the HGN test is called distinct and sustained nystagmus at maximum deviation. That's on section eight, page 27. And again, you're supposed to check for distinct and sustained nystagmus at maximum deviation twice and how do you know? Because if you go to page 33 of section eight, it tells you do it twice. And on distinct and sustained nystagmus, this is different type of tests. You're going to move your finger, the cops can move his finger from the center to your clients or to the officer's right at a speed of two seconds. However, when he gets to the end point 45 degrees, he's going to hold it for four seconds and then he's going to come back to center, then he's going to go over to the left side, hold it for two or take two seconds to get there.
And then he's going to hold his finger over on your client's, right, officer's left for four seconds and then he's going to come back to center. Where can you find that at? section eight, page 39, and then he's got to do it again. That's going to be on section eight, page 33. Why is this important? Because the officer's going to say, Oh, I only have to do it once. I only did each side once. I've known all this, I know what I'm looking for, I don't need to do it as much and then he's going to repeat it again. If you add up just distinct and sustained nystagmus at maximum deviation times, it's going to add up to 32 seconds. The third and final clue that the officer's looking for is onset of nystagmus prior to 45 degrees. Again, section eight, page 27 that tells you that's the third clue that he's looking for.
And what the officer's going to do is going to move his finger AKA the stimulus slowly and it's going to take about four seconds to reach 45 degrees. On section eight, page 44 it's telling you that takes about four seconds to reach 45 degrees. When the officer starts to see the jerking of the eyes, that's when he's going to slowly hold the stimulus and move his finger back and forth to try and get a good estimation. Now, that whole onset of prior to 45 degrees, the officer's out at night side of the road is dark, he's using a fast light. Can you really think that he could estimate 45 degrees? No. And again, he's supposed to do the onset of nystagmus prior to 45 degrees twice. And that's told him at section eight, page 33 and he's going to do it again and then he's going to repeat it.
If you add that third test up, that's going to take about 32 seconds. If you add up all the totals, it takes no less than 10 seconds to check for equal tracking, resting nystagmus equal pupil size and then 16 seconds for lack of smooth pursuit, 32 seconds for distinct and sustained nystagmus at maximum deviation and 32 seconds for onset of nystagmus prior to 45 degrees, that gives you a total of 90 seconds. Last time I checked, 90 seconds is a minute and a half. What you're going to notice is if you have a dash camera or a belt recording, just from the timestamps, you're going to be able to document when and how long the administration of the eye tests took. A lot of times we see it done in 20 to 30 seconds.
And if you asked your client, how many times did the officer move his finger during the eye test to the left and right they usually say about two to three. Very rarely do I see a full seven given in an administration of the HGN test. What I just went through was how to prove up the time requirements of the horizontal gaze nystagmus. You might want to listen to this podcast again. The PDF sheet on this subject on how to prove the officer cut corners or he didn't do the HGN correctly will be part of the DUI trial lawyers Academy, full course which will be released this December, 2019.
The cross examination of the officer course will have an open enrollment date and a closed enrollment date. So, make sure you stay tuned for future announcements of when the open date will start. This is your host DUI trial lawyer attorney Patrick Silva. Now, put on the boxing gloves, climb into the ring and have good fight over and out.
Thank you for listening to the DUI trial lawyers podcast. This episode brought to you by Silva and Silva law.com.
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