Has anyone had a case where an optomitrist said that sfsts were invalid due to not using eyeglasses? need help urgently! Thanks.
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Starla Jones

I havnt dealt with this directly, but the DWI resourced linked on the TDCAA website has some information on that.

I used to work with an instructor in Boerne who was very well versed on these issues and he could possibly give you some insight on if that is mentioned in the NHTSA or if there is research on the issue. He is Mark Busbee at the Boerne Police Department, 830-249-8645. Because the officers usually ask people to take off their eye glasses anyway, there must be some research out there or explanation that NHTSA gives.

I went to the NHTSA website and did a search for dwi, sfst and glasses and found some items--an introductory explanation and the references to the Study that says contact lenses don't affect it. Glasses are mentioned, but no study or anything. You might try looking in more depth on the website.

"Paging Richard Alpert" author of TDCAA manual on DWI Investigation and Prosecution.

Not sure what other folks have done but I'd have your officer check his SFST manual and see if his superior or another officer in the department has a trainer's manual.

The trainer's manual (for training other officers) has explanations based on the A&M studies and other research.

If I recall correctly, the procedure is for the officer to ask the defendant to remove his/her glasses so the OFFICER can see the defendant's eyes better and more easily observe the nystagmus.

Also officers ask the defendant if they can see the stimulus and follow it with their eyes and will admonish the defendant if he doesn't do so. Also if he doesn't have equal tracking he isn't a candidate for HGN.

So if your officer observed nystagmus that means the defendant saw the stimulus well enough to track it with his eyes during the test, which is all that's required.

That makes glasses irrelevant.

You might take the witness on voir dire outside the presence of the jury or have a pre-trial hearing or otherwise litigate this issue outside the presence of the jury, make these or other arguments, and see if the judge thinks the purported testimony is even relevant given what the officer did and what the officer observed.

Anyway, that's just my $.02. I'm sure the folks on this forum have other, and perhaps more helpful, arguments.

The basic instructor manual VIII-13 notes:

a. Step I: Check for
Eyeglasses. Begin by
instructing the suspect to
remove eyeglasses, if worn.
Point out that eyeglasses may
impede the suspect's peripheral
vision, and may also impede
the officer's ability to observe
the eye carefully.
o It does not matter
whether the suspect can
see the stimulus with
perfect clarity, as long
as suspect can see it at
all.
Remind participants that
nystagmus is not a vision test.

As a matter of procedure the glasses are to be removed. The enhanced vision that corrective lenses give one is not required for the HGN test; only that the person being tested can see the stimulus, regardless of what it is. As a matter of good practice the officer should establish that the "defendant" can see the stimulus. When I perform this test I use a red stylus light and ask the person being tested to touch it with whichever hand they write with; this can also yeild some very interesting and compelling, albeit not scientifically validated, evidence of impairment.

HGN can still be observed if the glasses are left on the face however, when the eye reaches maximum deviation, or close to it, the outter portion of the frames become visible and the eye will tend to focus on it and it will be difficult to actually observe Distinct and Sustained Nystagmus at Maximum Deviation. This is actually the reason we have the glasses removed.

I have actaully had this argument brought up in court in that county to the south of us and was able to explain away the doctor's argument by painting a picture in the mind's eye of the jury of what HGN is, what we are looking for and seeing and why having the glasses on would impede performance of the test to the fullest. I believe your best bet with this argument is to make sure that your officer is well versed in explaining HGN to the jury and making sure that they understand what it is that we, as officers, are looking for. A competent explaination from the officer who is SFST certified can easily overcome such an argument.

Our issue was actually not with the HGN. It was with the remaining tests because the defendant was not told he could put his glasses back on. According to the eye dr., he had three different eye problems that could have affected his balance and vision and ability to perform the walk and turn and one leg stand.

Interestingly, afterwards, the jury said it wasn't this expert or Charlie Foster that affected their decision, but the videotape....

BTW, I really do appreciate the help of everyone on this forum.

Well, if your officer did not allow the defendant to put his/her glasses back then he/she screwed up. Such is life!!