To all you DWI gurus out there. I just had a HGN kicked out. As it pertains to maximum deviation, the trooper made two "passes" on each eye. The DWI Detection manual (as cited in Emerson v. State) only authorizes one pass, but the manual that the trooper uses, Standardized Field Sobriety Testing Update allows for two passes. As anyone encountered this!

I'm hardly a DWI guru, but I did just have a case come up on appeal where they claimed the trial court should have kept the HGN out, mostly because of stuff like a possible wrong # of passes. Especially if it's too MANY passes, it doesn't seem like that should invalidate the results, and the case law on this says the HGN doesn't need to be administered perfectly to be admissible. If it's not too late (you didn't specify the circumstances), try giving this to the court:

As minor differences in such factors as officers' testing proficiency and field conditions were factored in by the Court of Criminal Appeals when determining the reliability of HGN evidence, "t would be unreasonable to conclude that any variation in administering the tests, no matter how slight, could automatically undermine the admissibility of an individual's poor performance of the tests." Compton v. State, 120 S.W.3d 375 (Tex. App.-Texarkana 2003, pet. ref'd), interpreting Emerson v. State, 880 S.W.2d 759, 767 (Tex. Crim. App. 1994).

[I]Elizabeth Foley
Asst. Crim. D.A.
Galveston County

The first coa recently seemed to criticize an officer for NOT making two passes. McRae v. State, 2004 WL 1471995 at *2 n.2 (Tex.App.-Houston [1 Dist.]Jul 01, 2004, no pet.) ("The officer also admitted that he made only one pass of each eye rather than two passes of each eye during the HGN test and further testified that this failure to make two passes of each eye was a violation of the guidelines in the NHTSA manual. Cf. Quinney v. State, 99 S.W.3d 853, 858 (Tex.App.- Houston [14th Dist.] 2003, no pet.) (holding that NHTSA's manual only requires one pass of each eye).")

This is what happens when the law makes judges experts on anything.

This stuff is such B.S. I get so tired of people arguing that some minor failure to follow every detail of a procedure means the results are so obviously invalid that you can't even mention them to a jury!

What ever happened to common sense. Seems to me that a reasonable person could conclude that three passes will not affect the validity of the test even though the manual says two passes.

And answer me this: what is it about being a judge that automatically makes you immune to the same prejudices that absolutely control the people that elected you? The exclusionary rule essentially says that the evidence is so unfairly prejudicial that the jury should not even hear it, as if the jury can't look at tainted evidence and see it for what it is. If only judges can make rational decisions about evidentiary matters, then why the heck do we even bother with juries in the first place? We hold the jury system in such high esteem as a method for seeking justice, and yet we treat jurors as if they were such morons that they wouldn't recognize that a confession that was beaten out of a suspect might not be true.

Of course, we draw our judges and legislators from the same pool of citizens from which juries are made -- I suppose should be surprised that justice ever gets done at all.

You forget that Judges are elected and juries are not. I dare say that some judges may be motivated by something other than justice and the law. If the process works right, juries are usually motived by what they believe is right.

While I am far from an expert on this, since I'm still not even technically an officer, I can tell you that my SFST manual on page VIII-7 (DWI Detection and Standardized Field Sobriety Testing Participant Manual 2002 Ed. NHTSA) states to repeat the procedure. I'd read that (as did the instructors) as doing the Distinct Nystagmus at Maximum Deviation test twice. Not sure if that helps you, but that's what we just learned in the Academy.

Andrew