I am having an issue with the admissibility of HGN during DWI pre-trial hearings and trials in my court. Basically, the defense attorney files a both Motion to Suppress and a "Motion to Exclude Testimony and Evidence of Field Sobriety Test and Request for Hearing Under Rule 702 of the Texas Rules of Evidence". We have a hearing and most of the time the court kicks the HGN based on the fact that it is not being performed exactly the way the Field Sobriety Tests Manual says to. Most of the time the issue is that the officers are doing the "passes" too quickly.
Now, I have read previous posts on somewhat related issues and I am fully aware that Motions to Suppress and similar hearings deal with weight, not admissibility, whether evidence was legally obtained, etc. These arguments have been made in court to little or no avail, depending on the exact situation. The argument has also been made that not performing the test to exact specifications does not invalidate it completely. These arguments don't seem to work, and if the court desires to set these matters for pre-trial hearings, I have no choice but to show up and represent the State in the hearing.
I have an upcoming DWI trial (breath test refusal) in which the defendant does so-so on the One Leg Stand and Walk and Turn (slight swaying, slight stumbles, etc.). However, 2 different Troopers at 2 separate times (at roadside and at station) performed HGN. Both found all 6 clues present, along with vertical nystagmus.
This is obviously compelling evidence I would love my jury to see, but the above-mentioned motions have been filed in this case and I am afraid of once again losing HGN during a pre-trial hearing. I believe that if I could get an expert (opthamologist, optomotrist, etc.) to testify at this pre-trial hearing (and perhaps during the trial), there may be a chance to keep my HGN. I believe an expert's testimony as to the procedure, findings, and scientific information surrounding HGN would go a long way in helping me to do so.
I am located in Waxahachie, and am wondering if anyone in my area (DFW or surrounding counties) knows of any doctors or other experts in this field who would be willing to testify.
Or, if anyone knows any other ways to combat this, I am open to suggestions.
You can reply to this board, send me a private message, or contact me at my office:
Thanks in advance for any and all assistance.
If the supression hearing is a pre-trial hearing, why don't you appeal the supression?
Be aware of how the elapsed time is being counted. If memory serves, I think each pass is supposed to take about two seconds, and you are looking for 6 total clues, so the entire thing can be done pretty quickly. I got into this once with a defense lawyer who had somehow gotten himself qualified as "expert" at FSTs, and attempted to use the NTSA manual to exlude my HGN. One thing he tried to do was to count the time for the "pre-screening" and add it to the total elapsed time required to do the test. Webster v. State says you do NOT have to perform a separate pass to screen for head injuries before beginning the test, so if your attorneys are suggesting otherwise they are wrong. Depending on how your troopers performed the test (how many passes), that may help you with the overall time for performing the test. Also - Doesn't the NHTSA manual say "about" or "approximately" when talking about the time for each pass?
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