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How many passes to each eye does the officer have to do with the light during a HGN test to be valid ?

Houston, TX |

The officer only did it 3 times. Also I read if you keep moving your head your head must be still to do the test

Attorney Answers 3

Posted

If the officer only did three passes, then he administered the HGN test wrong. The HGN test requires a minimum of 14 passes. Two passes for equal tracking, and four passes each for lack of smooth pursuit, nystagmus at maximum deviation, and angle of onset of nystagmus prior to a 45° angle. The admission of the HGN test, is governed by a case called Emerson vs. State, 880 S.W. 2d 759 (Tex.Crim. App.1994). The Emerson case applied rule 702, which governs the admissibility of scientific evidence, to admission of the results of the HGN test. The court devised a three pronged test to determine whether the HGN test and its results are admissible in trial. The first two prongs are never really an issue, however the third prong requires the horizontal gaze nystagmus test in your case to be administered according to the tests design. Although recent case law says that slight deviations in the administration of the HGN test go to the weight to be given the test and not its admissibility, the test must neverthless be administered according to its design.You cannot simply eleminate portions of the test and still call it an HGN test with all of its "scientific" backing. The National Highway Traffic Safety Administration is an authority on the proper administration and scoring of the HGN test. They produce the manuals your officer studied to learn how to properly administer and score the HGN test. Your lawyer should have a copy of these manuals to effectively challenge this evidence, and if admitted, to effectively cross examine the officer on his/her poor performance.This answer is brief, and only scratches the surface, but I hope it helps.

My answer is based upon the limited amount of information available at the time of writing.I am a Texas DWI Lawyer. If possible, hire an attorney who is a member of the National College of DUI Defense, who is familiar with your jurisdiction. Jim Butler- myhoustondwi.com, dwisurcharge.com 713-236-8744

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Asker

Posted

Thank you for your answer. Is it something to bring up I refused the breathalyzer and declined. I was not asked to sign the paper that I refused. Insted one of the officers told the other one well just but that he refused the breathalyzer and to sign. Is this something I should bring up or it would not change anything? Thanks again.

James Richard Butler

James Richard Butler

Posted

Will not change anything

Asker

Posted

Thanks and please Ignore my "new question" as I posted a question on here, but did not see you answer.

Posted

The NHTSA manual indicates six times. It also indicates that you always start with the left eye. But the failure of the officer to perform the tests exactly as the manual indicates, does not mean that the test will not be admitted in a trial. It will go to the "weight"given to the test by the judge or jury. Moving of the head means that the person being examined is not following instructions and if that causes the officer to abandon the test then he will assess all six clues against the examined person because of the failure of the ability to administer the test. All these matters are very technical in nature and a DWI/DUI attorney can examine each test and the errors in the officers administration of each test. Good Luck

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Thank you for your answer. It's because he did the test one time and told me don't move your head and didn't say that when he was giving the instructions to me. Thanks again

Bart Charles Craytor

Bart Charles Craytor

Posted

They never tell you what you are being "graded" on or what is going to count as a "indicator" of intoxication. They really have the upper hand when telling someone to follow all the instructions given to them on the side of a noisy roadway, with all the distractions going on, and it seems to me that they rarely give the instructions, or administer the tests in the standard manner as instructed in the NHTSA manual they were taught from. Then, when the prosecutor calls them to the stand to testify, they state that their "experience" allows them to vary a little from the manual without suffering any accuracy in the administration of the tests. They really are a joke, but juries tend to believe them. The HGN seems to be one of the best tricks they have to convince a jury of intoxication, but you will not see many officers (if any) provide a videotape of the eyes and the nystagmus clearly preserved on video tape. Cross-examining officers takes skill and experience. Pointing out the errors and why that makes the tests unreliable goes a long way with a jury.

Asker

Posted

Ok thanks again. I'm pretty sure the officer who gave me the hgn test was a "rookie" or newly with the department because he wasn't so sure of his actions kept asking the other officer and on the video keeps moving back and forth and looks nervous

Asker

Posted

Ok thanks again. I'm pretty sure the officer who gave me the hgn test was a "rookie" or newly with the department because he wasn't so sure of his actions kept asking the other officer and on the video keeps moving back and forth and looks nervous

Asker

Posted

Ok thanks again. I'm pretty sure the officer who gave me the hgn test was a "rookie" or newly with the department because he wasn't so sure of his actions kept asking the other officer and on the video keeps moving back and forth and looks nervous

Asker

Posted

Ok thanks again. I'm pretty sure the officer who gave me the hgn test was a "rookie" or newly with the department because he wasn't so sure of his actions kept asking the other officer and on the video keeps moving back and forth and looks nervous

Bart Charles Craytor

Bart Charles Craytor

Posted

Well, they gotta start somewhere.... the more experience they have, the more relaxed they can do these circus tricks to get DWI arrests. Many people have difficulty doing these things totally sober. Good luck.

Posted

Three passes for each eye, so six total. Moving your head is not a clue but it can interfere with their ability to score the test. Of course, then they can just say he was too drunk to do the test because he couldn't even keep his head still. As I've said before, DWIs are highly technical. You need an attorney who has tried hundreds of them and regulalry attends courses on ever evolving DWI law and science.

Macy Jaggers's answer to a legal question on Avvo does not establish an attorney-client relationship. Ms. Jaggers offers everyone a free consultation to discuss their case. Feel free to call her office at 214-365-9800 to make an appointment (phones are answered 24 hours) or visit her website at www.macyjaggers.com for more information about her services and recent victories.

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