Nothing is worse for police and prosecutors than impaired drivers who have already been through the system three or four times. These hardcore offenders have learned not to make incriminating statements or take blood alcohol tests. They even practice the standardised field sobriety tests (SFSTs) in bars before they drive home. Their heightened tolerance to alcohol and repetition of the tests often gives them an ability to display only a small number of impairment clues, but there is one SFST that cannot be practised or physically controlled — the Horizontal Gaze Nystagmus (HGN) Test. That is good news for police and prosecutors. The HGN test is the most accurate of all the tests, the best test for apprehending drivers between .08% and .12%, and the most researched of all the SFSTs. Experience has shown that multiple offenders may be quick to refuse the walk & turn or the one-leg stand tests, but for whatever reasons, many will submit to the HGN test. That leaves prosecutors with the task of admitting the HGN test in court.Yet, a common refrain heard in courtrooms from defence lawyers, and sadly some judges, is that “HGN is not admissible!” With constant repetition, the phrase becomes conventional wisdom. Police officers even begin to say it to each other on the street and forego using a great tool in detection and apprehension. But, here’s the reality: The HGN test is admissible in a majority of courtrooms in the country. While the defence bar’s phrase above has a bit of truth to it, which is why it sticks, the important part is left out — “HGN is not admissible unless the proper foundation has been laid!” The foundational hurdles placed before prosecutors in many jurisdictions are high, but prosecutors must be willing to fight for HGN’s admissibility. The evidence is too valuable and reliable to concede territory to the defence bar. What follows is a guide to HGN admissibility with articles from a variety of experts in the area, most notably, leading HGN researchers and authors Dr. Marcelline Burns, PhD of the Southern California Research Institute, and Dr. Karl Citek, OD, PhD, FAAO of Pacific University. Both Dr. Burns and Dr. Citek have travelled the country testifying on the issue of HGN admissibility, and here they provide their unique insight for prosecutors. (Author/publisher)
Abstract