I cannot seem to find a case that says passes with a stimulus during the HGN do not have to be of an exact duration.

I am in the middle of trial any help would be appreciated.
Thanks

Maybe this case will help Compton v. State, NO. 06-02-00194-CR, 2003 WL 22143267 at*3 (Tex.App.-Texarkana, Sep 18, 2003, no pet. h.) (published) ("Compton complains that Baggett administered the smooth pursuit portion of the HGN test in eleven seconds instead of the sixteen seconds prescribed in the DWI Detection Manual (i.e., Baggett moved the stimulus two and a half seconds faster than recommended for each eye). The manual itself only provides approximations of the time required for properly conducting the tests; however, Compton reasons that the slightly increased speed with which Baggett administered the test amounted to an inappropriate application of the technique, invalidating the results. This conclusion is untenable and, if accepted, would effectively negate the usefulness of the tests entirely. Any variation in timing would require courts to exclude the results as unreliable.")

Thanks, I knew I had seen it but just could not put my hands on it.

Do you have a lot of def. lawyers trying to suppress SFSTs?

In a recent DWI case, deviation from the "regulation administration" of HGN was the basis of the defense. Two officers certified to conduct the test performed it - one office held for the standard 4 seconds, the other held for only 2 seconds.

We had a medical expert testify on HGN and he blew defense out of the water. The witness was an ER physician who testified that these tests and variations on them are performed every day by emergency medical personnel to determine if a patient is under the influence of alcohol or other drug before beginning treatment. His extensive background (years of practice, many thousands of tests performed), knowledge and great demeanor deflected everything defense tried to throw at him. His counter to "aren't there other causes and types of nystagmus" was that there certainly are -- but HGN is only caused by two things: alcohol or drug intoxication.

Regarding the length of the test, he called it a "no-brainer." It does not matter how long or short the test is -- in fact, if a shorter test were to make any minor difference in the results, they would favor the defendent - ie., a shorter test could mean less chance of nystagmus at maximum deviation - if they held too long, theoretically, they could note that type of nystagmus and mistake it for HGN.

He even stood in front of the jury and demonstrated nystagmus on our prosecutor - explaining each step along the way and purposely (as he explained) holding over 15 seconds at maximum deviation to induce nystagmus so they knew exactly what the officers were looking for. He testified that for making critical medical decisions, the tests he saw performed on the video tape were done correctly, because it was not possible for the length of the test to invalidate the results.

Even after the officer's response to defense, "I guess I did it wrong" the medical testimony was clear and compelling and the defendent was convicted. He also testified about the reason HGN was so reliable (defendent had performed well on the other FST's): it is the one test you cannot fool and cannot train your body to perform.

[This message was edited by Waco on 11-20-03 at .]

I have finally been able to read the Compton v. State case and it will be strong medicine for those pesky defense experts that have been cropping up. Perhaps the motion to discover the defense experts should be followed with a Motion in Linime (could we file a Motion to Suppress??)so that we can take the defense expert to task if all the expert is going to do is to show a two second instead of a four second pass. The one leg stand position by the court should help us also.

It was, of course, entirely predictable that once it became more difficult for the State to show blood alcohol concentration that the defense focus would shift to the administration of the HGN (since that was usually a key factor in the officer's opinion concerning loss of normal use). You never heard of these experts before now.

At least it appears the truth about the cause and detection of HGN will make it a little more difficult for them to sell their wares. It is frustrating to think we have to have a repeated battle of the experts over what ought to be a fairly simple issue. But, if the test is videotaped I suppose the seconds will always be counted and recounted. Anything to imply bias or incompetence--even though the same defendant argues against the use of any more definitive test in the same breath (no pun intended).