The best Orlando DUI attorneys should exclude evidence of the HGN test.

The Admissibility of the HGN (Horizontal Gaze Nystagmus)

The best Orlando DUI attorneys should exclude evidence of the HGN test.

Is the HGN (horizontal gaze nystagmus) test admissible in your Orlando DUI case?

Orlando police officers and Orange County Sheriff’s deputies are trained to use the same “standardized” field sobriety exercises when conducting a DUI investigation: The HGN, “Walk and Turn,” and the “One Leg Stand.”

The first of these standardized field sobriety tests (or “field sobriety exercises,” if you want to be accurate) is the Horizontal Gaze Nystagmus. If you’ve been arrested for an Orlando DUI, you’re probably wondering, “Can my DUI attorney get this test kicked out of evidence?”

The answer is maybe.

First, the HGN test is admissible into evidence. In State v. Meador, the court ruled that the HGN is admissible evidence and does have probative value. 

BUT…

The probative value of lay observations of the HGN results “is outweighed by the outweighed by the danger of unfair prejudice, confusion of issues, and misleading the jury unless the traditional predicates of scientific evidence are satisfied.”

Less than 2 years later, the 3rd District Court of Appeal (just 70 miles south of the court which issued the Meador opinion) issued an opinion in Williams v. State, 710 So.2d 24 (Fla. 3rd DCA 1998).

In many ways, Williams agrees with Meador about the HGN test. Williams holds that:

  1. Lay observations of field sobriety tests are admissible. They go further to hold that a lay person may testify about observations regarding blood pressure, pulse, body temperature, pupil changes, and the conditions of a DUI driver’s nose or mouth.
  2. Like the court in Meador, they applied the Frye standard to hold that HGN is not a new, novel, or emerging scientific technique. (I agree with part of that statement… I don’t think it’s scientific at all!) Note that the Frye standard is no longer the proper standard in Florida, as it has been replaced by the Daubert standard in July 2013. Therefore, the court holds that the use of HGN to establish the presence of alcohol is generally accepted in the relevant scientific community. (As a sidenote, what is the relevant scientific community? If a bunch of cops get together and say, “We like this,” is that the same as a peer-reviewed, scientific community?)

However, in another aspect, Williams differs from Meador in their discussion of what exactly is the required foundation for admissibility of the HGN. Meador was very clear that the traditional scientific predicate must be proven before the government may admit evidence of the HGN.

The Williams court wasn’t as clear. They said the HGN results could be admissible in an Orlando DUI case “once a proper foundation has been laid that the test was correctly administered by a qualified DRE” (drug recognition evaluator).

Williams clearly allows qualified DRE’s to testify about the results of the HGN. (Even though the DRE program is, in my opinion, nothing more than a fancy methodology designed to transform a “mere guess” into a court-recognized “expert” opinion).

But the next year, the 3rd DCA went further, and expanded the pool of “qualified” individuals who could testify about HGN results. Bowen v. State, 745 So.2d 1108 (Fla. 3rd  DCA 1999). In Bowen, the court opened the floodgates and said that mere “training and experience” might be sufficient to allow anyone to testify about the results of the HGN.

The example in Bowen was a Florida Highway Patrol trooper who had received HGN training during his 40 hour block (1 week) of basic DUI training. The difference that the Court found with this trooper was that he had administered the HGN test about 1000 times. (Here’s where I find a problem with that: They never required the HGN administrator to prove that he did it right. Sure, he did it 1000x…. but did he get it right? For all we know, he did it 1000x and got it wrong every time. The court wouldn’t care – they just create the litmus test of “1000x is enough”.)

I think it’s important to note that the trooper’s testimony in Bowen was supplemented by testimony from a Drug Recognition Evaluator, who went into additional detail about what the HGN results meant. I would make the argument that the trooper didn’t testify as to the expert opinion, he only outlined the observations of what he saw, and then the DRE (which Williams tells is an “expert”) described what those observations meant. It might be a long shot, but I think it’s worth raising to your judge.

Another issue you can raise through Bowen is whether the HGN should be admissible in your drunk driving case if the State can’t provide evidence of a confirmatory breath, blood, or urine test. The Bowen court said:

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 HGN evidence is admissible. See Faires v. State, 711 So.2d 597, 598 (Fla. 3d DCA 1998); Williams, 710 So.2d at 36.

Bowen, at 1109.

In summary: 
The courts have expanded the pool of potential witnesses who may testify about the results of HGN, but they haven’t completely opened the floodgates. If the State’s witness is “rookie” police officer or someone who has minimal training, then it’s a no-brainer – they’re essentially a lay witness as to the HGN, and shouldn’t be allowed to testify about the results.

However, if they possess special qualifications and training, such as Drug Recognition Evaluator designation (please don’t use the term “drug recognition expert,” that cedes the power of language to your opponent), then the judge will probably allow the prosecutor to admit the evidence in your DUI case.

Your Orlando DUI attorney should have a pre-written motion in limine that they file to prevent the prosecutor from introducing evidence of the HGN during a DUI trial. If you are a Florida DUI attorney and you don’t have a copy of this basic motion, please contact Orlando DUI attorney Elliott Wilcox and I’ll be happy to provide you with a copy of the standard motion that I use.

Direct links to cases cited in this blog post:

 

About The Author

Elliott Wilcox

Orlando DUI lawyer Elliott Wilcox isn't just a former DUI prosecutor… He's the one who TRAINED all of the DUI prosecutors! Elliott dedicates 100% of his practice to DUI defense. If you've been arrested for an Orlando DUI, call Elliott for help at (407) DUI-HELP.