Mistakes in HGN Test Cause Suppression of Officer’s Testimony

If you have been arrested in Michigan for drunk driving, then the police officer may have administered an eye test called the “horizontal gaze nystagmus” or HGN test.  If so, then the results of this test were probably used as part of the probable cause forming the basis of your arrest.  It is essential that this HGN test be administered properly, and experience has shown that often times it is not.

This is important because even what might seem like small deviations from police training can make the HGN test inadmissible.  If the test is inadmissible in your case, then it is possible that the arrest is bad, and this could result in the complete and total dismissal of your case.

For example, in People v. Borys, 2013 IL App (1st) 111629, 995 N.E.2d 499 (Ill. App. 1 Dist., 2013) the defendant was charged with aggravated DUI for driving under the influence of alcohol while her license was revoked due to a previous DUI.

At the bench trial, the arresting officer testified that he had four years of experience as an Illinois State Police officer and received about 40 hours of training on the detection of impaired drivers at the police academy in August 2006. As part of his training, he was taught how to administer various field sobriety tests, including the HGN test. In this case he conducted the HGN test to detect unsteadiness of the eyes, which was an indication of possible alcohol consumption.

Over the defense’s foundation objection, he testified that he first determined that defendant had equal tracking with both her eyes by holding his finger about four inches from her eyes, asking her to follow his finger with her gaze only, and sweeping his finger back and forth, left to right, several times.

The court found that the state had failed to meet the foundational threshold for the horizontal gaze nystagmus (HGN) testimony in driving under the influence (DUI) prosecution, and thus, admission of officer’s testimony was improper.  This was because the officer testified that he placed stimulus about four inches from defendant’s eyes, yet National Highway Transportation Safety Administration (NHTSA) manual indicated that the stimulus was required to be positioned approximately 12 to 15 inches from the suspect’s nose and slightly above eye level.

If you have been arrested in Michigan for drunk driving, then call the Barone Defense Firm for your FREE case evaluation.  We will discuss with you if the tests in your case were administered properly, and how this might help us successfully defend your case.