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Editor: Bob Battle
Profession: DUI Defense Lawyer

Category: Virginia DUI

California DUI lawyer Lawrence Taylor wrote an excellent article in his "DUI Blog" about a published article in a respected scientific journal by J.L. Booker in which Booker concluded that government claims about the ability to measure impairment and alcohol concentration by using the Horizontal Gaze Nystagmus test constitute "deliberate fraud!" The paper by Booker, titled "The Horizontal Gaze Nystagmus test: fraudulent Science in the American courts," is published in Science & Justice (2004 44 pp. 133-139). The Horizontal Gaze Nystagmus, or HGN test, involves the officer asking the motorist to follow the tip of a pen with their eyes. Based on observation of nystagmus, which is basically the involuntary jerking of the eye, the officer is supposed to be able to make conclusions re whether the person tested has a BAC above .10. Taylor, who has referred to the test as the "Voodoo Eye Test," points out that "HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers."

The Booker paper points to the deliberate lack of peer review by government agencies and the attempt to get judges to ignore scientific research criticizing the tests as some of the evidence of fraud.

As Taylor states:

Deliberate fraud. Pretty strong language for a scientific journal. After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The state's argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.
-J>L> Booker

DUI Defense Practice Pointer- Bob Battle has written frequently that the roadside tests are designed for failure- click to view "Roadside Sobriety Tests: The Basics." Richmond Virginia DUI DWI Lawyer Bob Battle always objects to admission of any field sobriety test, but especially the HGN since it is purported to be based on science. Many practitioners fail to require the prosecution to meet the burden required by the Virginia Supreme Court. In the case of Billips v. Commonwealth, in November 2007, the Virginia Supreme Court held that, when the prosecution offers scientific evidence at trial, the prosecution has the burden of proving the reliability of the scientific method offered.
Even the Illinois Supreme Court stated in People v. McKeown in September 2007 that ""HGN testing appears to have as many critics as it does champions." In its opinion , the Illinois Supreme Court quotes a scientific study done by Dell'Osso & Daroff which states:

"Unfortunately, that alcohol can produce horizontal gaze-evoked nystagmus has led to a 'road sobriety' test conducted by law-enforcement officers. Nystagmus as an indicator of alcohol intoxication is fraught with extraordinary pitfalls: many normal individuals have physiologic end-point nystagmus; small doses of tranquilizers that wouldn't interfere with driving ability can also produce nystagmus; nystagmus may be congenital or consequent to structural neurologic disease, and often a neuro-ophthalmologist or sophisticated oculographer is required to determine whether nystagmus is pathologic. Such judgments are difficult for experts to make under the best conditions and impossible to make accurately under roadside conditions. It is unreasonable to have cursorily trained law officers using the test, no matter how intelligent, perceptive, and well-meaning they might be."

DUI defendants should not be subject to a "DUI exception to the Constitution," nor should they have any evidence based on "junk science" admitted at their trials. Remember, ANY evidence is admissible at trial if you have hired a lawyer who fails to object to its admissibility!
Click the link to read Lawrence Taylor's article "A 'Fraudulent' Field Sobriety Test?"