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SCOG Reins in Loose HGN Performance

In State v. Walsh, the Supreme Court of Georgia again took a look at the way that trial courts and the Court of Appeals for Georgia deal with the issue of horizontal gaze nystagmus tests in DUI investigations and arrests.

For the uninitiated, the horizontal gaze nystagmus test (HGN) looks for nystagmus in the eyes as they eyes follow a stimulus moving on a horizontal plane.  Nystagmus is a jerking movement of the eye.  This is allegedly related to the presence of alcohol, a central nervous system depressant, in the subject.  It is one of the three standardized field sobriety tests.  HGN is used to detect the presence of depressants, inhalants, or dissociative anesthetics.

In spite of it being a standardized  test, some trial courts and the court of appeals have been willing to allow significant leeway to officers in the actual administration of the test.  Those courts take the position that deviations from the standards go to the weight of the test not whether it is valid or not.

Walsh was found in a car in a traffic lane, stopped, with his foot on the brake and his head town on his chest.  The driver's window was down.  Walsh's hand was on the gear shift.  The vehicle was in drive and running.  The officer reported a strong odor of alcohol.  After being woken, he appeared confused and his eyes were described as bloodshot, glassy, and extremely watery.

Following the officer's instructions, Walsh got out of the car.  The officer began administering standardized field tests.  This included HGN.  One standard for the test is to have the subject remove any eyeglasses.  This gives an uninterrupted view of the subject's eyes.  In Walsh's case, the officer did not instruct Walsh to remove his glasses and Walsh kept them on.  At the motion hearing, the officer acknowledged that his training required him to have the subject remove any eyeglasses.  He stated that in more than 800 HGN tests performed by him, he had never let the subject keep eyeglasses on.  He acknowledged that this was a "substantial deviation" from his training regarding proper HGN procedures.  However, he maintained that he had substantially complied with the guidelines and that his administration of the test could still yield informative results.  

Judge Jacobs of the DeKalb County State Court ruled that the State had failed to meet its burden of showing that the HGN test was performed in an acceptable manner and excluded the test and any evidence derived it from use in the case.

The Solicitor's office appealed that ruling.  

The Court recognized that since the Hawkins v. State decision in 1996, HGN has been allowed to be admitted without additional proof of its scientific reliability based upon a finding that HGN had reached a state of verifiable certainty in the scientific community for determining that a driver is impaired by alcohol.  The Hawkins case did require that HGN be properly administered under law enforcement guidelines.  

With the Tousley case in 2005, the Court of Appeals confirmed that the State has the burden of proving that the officer substantially performed the scientific procedures in an acceptable manner, and once that is done, the burden shifts to the Defendant to show that error in the administration of the HGN test.

In this case, the State did not establish that the officer followed the scientific procedures.  In fact, the testimony was clear that there was a substantial deviation from the officer's training.  Instead, the State argued that the deviation did not matter because the officer offered his opinion that the deviation did not matter.  There was no scientific testimony or evidence to support this assertion by the officer.  As the Supreme Court noted, there was no evidence or testimony that established that the officer was qualified to render that opinion.  

The Supreme Court found that the Court of Appeals had applied the wrong standard of review and that its decision could not stand.  It found that the State is required to meet its foundational burden for the HGN test by showing that the officer performed the test consistent with the required procedures.  Failure to do so means that the HGN test should be excluded from evidence.

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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