The Horizontal Gaze Nystagmus test (or HGN) is a DUI Field Sobriety Test used by police officers in Illinois to detect alcohol impairment. Personally, as a defense attorney I hate the test because essentially the officer looks at someone’s eyes and tells us what he saw (with no opportunity for us to review what he saw) our only attack lay in the performance of the test and the tests accuracy.
Generally NHTSA guidelines guess that this test is about 77% accurate for detecting BAC (blood alcohol content) above 0.10. It’s not, of course, but in this world of made up BS created from the clear blue sky, that’s what juries are told around the country.
Well, there may be a shift in the FORCE (Star Wars TM). I represensented three clients in a row who the officer said scored 6 out of 6 clues for the HGN. Only problem: Their BACs were 0.74, 0.06, and 0.54 respectively. Now I know that I can use that information against the officer who did those tests, but the real question is: is there anyway to gather that information about other police officers who perform the tests routinely?
I think that criminal defense attorneys should be able to subpoena past police reports to see how many UNDER 0.08 BAC DUIs they wrote scored 6 out of 6 on the HGN test. It may be time to do some legal experiments. I have always thought that more science should be introduced into the law. Would an officer be pulled off the road if he or she consistently scores poorly in this regard. Well, I guess only time will tell.
P.S. I really think we will be looking back on this particular field sobriety test and laughing about how our courts ever allowed it.