Can Your Eyes Be Used Against You--The Use of the Horizontal Gaze Nystagmus Test in the Courtroom
![handle is hein.journals/jclc84 and id is 213 raw text is: 0091-4169/93/8401-0203
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 84, No. 1
Copyright © 1993 by Northwestern University, School of Law Printed in U.S.A.
COMMENT
CAN YOUR EYES BE USED AGAINST
YOU? THE USE OF THE HORIZONTAL
GAZE NYSTAGMUS TEST IN THE
COURTROOM*
I. INTRODUCTION
The National Highway Traffic Safety Administration
(NHTSA) developed a battery of tests which it considers the
most effective procedure[s] for testing drivers at roadside to deter-
mine whether or not they are intoxicated.'2 These roadside sobri-
ety tests are designed to gauge inebriation by evaluating a person's
coordination, balance, and mental agility.3 Unlike chemical testsju-
rors need only apply their common-sense knowledge of the world to
appreciate the results of these psychophysical coordination tests.
However, these tests also convey the imprimatur of science, effec-
tively making them difficult to repudiate.4
Horizontal gaze nystagmus (HGN) is one such roadside so-
briety test. This test is premised on the fact that the automatic
tracking mechanisms of the eyes are affected by alcohol.5 Nystag-
mus is defined as an involuntary rapid movement of the eyeball,
* The author wishes to thank Professor Robert P. Bums and Associate Dean J.
William Elwin Jr. for their thoughtful insight and advice.
I The NHTSA recommends that an officer administer the walk-and-turn test, the
one-leg stand test, and the horizontal gaze nystagmus test. John Seelmeyer, Nystagmus, A
Valid DUI Test, LAW & ORD., July 1985, at 29.
2 2 DONALD H. NICHOLS, DRINKING/DRIVING LITIGATION § 26:01, at 1 (1990).
3 Richard J. Essen & Marla Levenstein, Roadside Sobriety Tests: Both Scientific and
Unreliable, DWI J., Nov. 1989, at 6.
4 Id. at 5. See, e.g., United States v. Baller, 519 F.2d 463, 466 (4th Cir.), cert. denied,
423 U.S. 1019 (1975) (because scientific techniques appear objective, opinions that
claim scientific bases are apt to carry undue weight with the trier of fact) (cited in
MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 703.2 (3d ed. 1991).
5 Edward B. Tenney, II, The Horizontal Gaze Nystagmus Test and the Admissibility of Scien-
tific Evidence, 27 N.H. BJ. 179, 180 (1986). See, e.g., NHTSA DOT HS-805-864, DEVEL-
OPMENTS AND FIELD TEST OF PSYCHOPHYSICAL TESTS FOR DWI ARREST App. A (1981).](ViewImageLocal?handle=hein.journals/jclc84&div=14&collection=&method=preview&ext=.png&size=3)
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Can Your Eyes Be Used Against You--The Use of the Horizontal Gaze Nystagmus Test in the Courtroom
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