I have a trial next week, and my officer performed the HGN on a guy who claims he is legally blind in one eye(and according to his CDL records, he is - scary!!) The officer went ahead and performed the HGN and only counted the clues in the good eye. The NHTSA manual only states that lack of equal pupil size or equal tracking indicates possible medical problems or blindness. It does not say blindness invalidates the test. Some are telling me the test should have been stopped when the defendant told the officer he was blind. Defense counsel is trying to redact all portions of the video showing the HGN and keep out all testimony. Any thoughts? Officer got 3 clues on the good eye. Also, my bailiff in court says there is nothing wrong with the defendant's blind eye. It moves perfectly fine and can follow a stimulus. I thought about having my officer check the eyes during trial(kinda crazy, I know.) Any help would be much appreciated!!

If your case depends solely on HGN...you might wanna cut a deal. Also, how do plan on getting the officer to "check" his eyes during trial?

I have other SFSTs, plus a blood test result of .08. I know, close case...which is why I need every bit of evidence I can get. I was going to have the officer perform the HGN on the defendant in court to show equal tracking and pupil size. My purpose is to show that his blindness does not affect his ability to perform the HGN test. My real question though, is admissibility of my HGN test - I've found the Compton case out of Texarkana that allows for slight deviations in the HGN - but I'm not sure that ignoring one eye counts as a "slight" deviation.

A blood test with a BAC of 0.08 should not be a close case. In voir dire you need to explain that if the jury believes beyond a reasonable doubt that the def. had a BAC of 0.08, they are duty bound to find he was intoxicated, regardless of how well he seems to appear on a video. You need to get a commitment from every venireman that he will do that, and anyone who can't do that, who will require "more evidence," should be struck for cause.

Everyone knows what "intoxication" means, and as a consequence, I think, many veniremen tune out the prosecutor when he gives the legal definition of intoxication. Then in trial they apply their own definition of intoxication, e.g. "wobbly," "obviously impaired," etc. You need to drive home to the panel that the legal definition of intoxication in a DWI case is far stricter than the definition most people use in everyday talk. Strike for cause anyone who feels they could not convict based on the legal definition of intoxication, rather than their own definition of intoxication.

Another point to make is to disabuse the panel of the common misconception that BAC 0.08 is "the legal limit," and if you are below 0.08, e.g. 0.079, then you must be legally sober. Strike for cause anyone who would acquit if they believed the def. was under 0.08 even if they believed beyond a reasonable doubt that he had a slight loss of just his mental faculties due to ingesting alcohol.

There was an A&M study a number of years ago where they tested the driving ability of over 100 drivers when they were sober. They then got the group up to BAC 0.04, and retested them. Some of the participants, before they did the second driving test, said they felt fine and were sure they would perform adequately. In fact, the driving ability of every single participant was significantly degraded. Moreover, the test could not truly replicate the ability of a driver to react in an emergency situation, and judgement is the first thing you lose when drinking. The take-away from the study was this: at BAC 0.04 everyone's driving has been effected by intoxication. A video was made of this test, and you should see it. Be sure your toxicologist is well aware of this study, and can explain it at trial.

Good luck.

Gretchen:

I am unaware of any link to the video. The video I saw was provided by DPS Toxicology when I was preparing for an Intox. Manslaughter case. I called toxicology and was told the name of the video (the one I saw was a video, not a DVD)is "Drinking & Driving: Is .08 Too Late?" The study was done by Dr. Maurice DENNIS at A&M. His phone number is (979) 845-4068.

Thanks!

Consider discussion of the third and final experiment of the robustness study. Results indicated that individuals who are intoxicated display HGN, even with monocular vision. A defense attorney will likely open the door to the finding in direct of your expert. Depending on your judge you may also be able to validate HGN for your circumstances using the preliminary data in the study.
http://www.nhtsa.gov/DOT/NHTSA...d%20Files/810831.pdf