Officer does only one pass for lack of smooth pursuit. Admits he misses a pass pre-trial after viewing it on video but performs the rest of the test with the correct number of passes. Court suppresses entire HGN.

Any case law out there supporting that this variance should only go to weight and not to the HGN's admissibility? I know Taylor v. State found that that wasn't enough to exclude the HGN but that case wasn't published. Also familiar with Compton addressing the length of the passes. But specifically looking for caselaw dealing with an officer only doing one pass here.

I'm not aware of any other case law on that point, though others on this forum may be, but the argument seems straightforward from the NHTSA manual (at least the last version I saw) and from all the SFST trainings I've seen.

My understanding is that two passes are done, and done at a certain speed, to ensure the officer doesn't miss an existing clue. Surely that goes to the weight and not the admissibility.

And even if the LSP was done in only one pass, making it less likely that the officer would observe existing clues of intoxication, how does that impact at all the administration of the other phases of the HGN?

If the officer administered those phases properly and clues were observed in each eye on both of those phases, you still have sufficient clues under the NHTSA standards to indicate intoxication.

Of course, the other question is, how important to your case, given your facts, is the HGN result?

Compton, 120 S.W.3d 375 from 2003 out of the 6th district in Texarkana. Haven't shepardized it in a while, so be sure to check it.

This case discusses not using the exact number of seconds from the NHTSA on max dev. I think the same analysis would apply to your smooth pursuit. The defense was pointing out errors that had nothing to do with the purpose of the test.

Look at XV (A) (7) of the new outstanding Richard Alpert Case law document. Don't know where it is? See that little button right above this post that says "DWI Resources" There it is!

I don't mean to be sarcastic. This is a great resource, if you have not checked it out you need to.

I agree with the earlier posters. Remember every single standardized aspect of the SFSTs was created to meet the goal of the SFSTs. The only goal is that officers would never ever release an suspect with a BAC over .08. The requirements of multiple passes were incororated to make sure HGN was not missed by the officer and not because they were necessary to observe HGN or document it. The defense, of course, reverses logic, history, heck even the laws of physics to make a standardized requirement created to prevent wrongful releases into a policy created to prevent wrongful arrest. This is simply wrong, dishonest and stupid.

I have successfully argued that deviations from the NHTSA/IACP standardized SFSTs are reliable when the officer can testify that he has personally administered the test on many occassions in this non-standard way and has personally found the results of that testing to be realiable based on BAC results from those individuals. Something extra for the trial/appeals court to hang their hat on.

I'm with Clay. An improperly administered test might miss intoxication, but I do not think it will create intoxication. The objection is obviously based on the weight of the evidence, so long as the administration technique was designed to detect something relevant. But, the greater the deviation the poorer the results, so I am sure there is a limit to how far this argument goes. Lets just hope the limit does not have to be defined on a case-by-case basis.

Nothing beats an HGN like a blood sample. Teach officers how to get a search warrant for blood.

I think the tricky part now is finding case law that helps the appeal. Everyone is giving great arguments for court--to judge or jury about the SFSTs, but the truth is, I don't think there's much case law out there to support it for the appeal. Maybe this one will be the case that helps us all in the future!

Well, maybe I should read the case law tab before I say that....which I just did and one of them is directly on point. I will let the mystery linger.

quote:

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Nothing beats an HGN like a blood sample. Teach officers how to get a search warrant for blood.

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I agree. If there is PC for the stop there should be PC for the warrant. I just wish we got our lab results faster.

Take a look at Reynolds v. State, 163 S.W.3d 808 (Tex. App.--Amarillo 2005), affrm'd on other grounds, 204 S.W.3d 386 (Tex. Crim. App. 2006).

J Ansolabehere

As has already been said, the primary purpose of multiple passes is to ensure that HGN is not missed. It is not CREATED by doing so. We also do it to make sure that we are truly detecting it.

I can't find the actual report in my office at the moment, but there was a good study published by the NHTSA in March or April, 2008, in which the agency concluded based on laboratory tests and field experimentation, that minor variations in the method of performing the HGN test does not invalidate its results.

In the study, officers correctly assessed a subject's state of intoxication using the HGN 87.7% - 91.9% of the time regardless of the subject's position (sitting/standing/lying down), and gave false positive results only 2% - 3.8% of the time.

Varying the speed of the stimulus movement did increase the number of false negatives (finding no intoxication where there was actually intoxication), but speed changes did not increase positive findings.

Finally, varying the height at which the stimulus was held did not change the results, and varying the distance from the face did not change results except that holding the stimulus slightly closer to the subject�s face than the standard 12-15 inches increased the number of signs of intoxication that that officer correctly observed.

Hope this is of some assistance.

One NHTSA report on the subject can be found at Little Effect.

At a low level you will observe a Lack of Smooth Pursuit (LOSP). As the level of intoxication rises you will observe LOSP and a Distinct and Sustained Nystagmus at Maximum Deviation (DSN). At high levels you will observe LOSP, DSN and the Onset of Nystagmus prior to 45 Degrees.

You can not observe DSN and the Onset without there being a Lack of Smooth Pursuit.

Don't let the defense liars (I mean lawyers) trick you or your judges.