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Who do you want as your Attorney? The Master or the student? Patrick Silva has 19 years of DUI experience, he has been published in DUI reference books, he has spoken in front of hundreds of attorneys at conferences, taught classes to lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI lawyers how to win.

HGN Wrong Admin and False Causes

Welcome back to the DUI Trial Lawyer's Academy. This podcast is brought to you by Great lawyers, helping great people. And now for your host sought after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Welcome back to the DUI Trial Lawyers Academy. This is your host DUI Trial Lawyer, Patrick Silva. In today's episode, we're going to be discussing a couple of different topics. The first one, I'll just call it, things that the cop did wrong during the administration of the horizontal gaze nystagmus, aka the HGN test. And the second issue we're going to discuss is other things or other false positives that cause horizontal gaze nystagmus. When I'm discussing the NHTSA manual, I'll be referring to the 2015 Participant's Manual, and that will make a reflection back to the page number and the section. And when we're talking about the administration of the field sobriety tests, it's always in section eight.
One of the very first things that the officer could do wrong is that he's holding the stimulus way too high. If you had an opportunity to view the administration of the HGN on a dash camera system, you might see the officer's pen that is or finger that's about forehead, high forehead height. And you have the person he's got his eyes looking up, his head is straight. If we go to page 29 of section eight, what it's going to say is you're going to hold the stimulus slightly above eye-level, and that's about two inches. Most officers will get the distance correct, i.e. 12 to 15 inches from the subject's nose. But when we're talking about the height through the stimulus, that's where the first error usually occurs.
I know what you're thinking. The word slightly above eye level is a waffle word, a waffle term. Slightly to you can mean different than slightly to me. So where do we get a more accurate definition of slightly? The government NHTSA did another study. It's called the robustness of the HGN test. And on page 17, it discusses what the standard position is, it's two inches above eye-level. So using the government's own studies, the NHTSA manual and the robustness of the HGN tests, we can definitely establish that two inches is the proper position. So let's talk about your cross-examination and remember, you can always tie it back to page 13 of section eight. You got to do the test try to fear the officer. You might ask a question like this: "officer you're required to do the administration of the horizontal gaze nystagmus?" Officer will call HGN from this point.
"Yes, I'm supposed to, and if you do it wrong, then what you see, the clues. They might be false clues. They might not be accurate clues. And you have training on the NHTSA standards through the NHTSA manual?" "Yes." "And you're trained in this year and you remember there's the 2015, there is 2018?" And if you go to my website, actually have all 14 in our full course, but there's 14 manuals going back to 1982 on the participants manual. "Officer, we're looking at the dash cam and take a look here. It looks like you held your finger, which is the stimulus. And that's about five and a half inches above my clients eye level, was that right?" He might argue with you a bit. He might say five inches, four and a half, but you're going to get an inch count from him. "Well, officer, there's a right way and a wrong way to do this test, right?"
If you're the officer administer earning it. Yes, there is. "So looking at the video, it looks like you're four and a half inches. How, how much above eye level should that stimulus be?" And he's going to say four to five inches. And then that's where you go back to the studies and say, well, no, isn't it correct? That it's supposed to be approximately two inches. And he'll argue with you. "Well, is it not true that the government did a study in forgot what year you did a study? It's called the robustness of the HGN. And again, this was done by the national highway traffic safety administration." And he's going to say, yes. "Well in that study, let me refresh your memory." And he might've been, he might have read the study. He might have heard of this study. You can try and refresh your memory and say:
"Well, isn't it" true? It's supposed to be two inches. Let's say he has no recollection. He's never heard of this study. So let's try a backdoor technique, which you're going to do. And remember, trials are battles of impression. What you're going to do is grab that book and you're going to read from it. And you're going to say: "Do you agree with this statement?" And you're going to read from it and then look up and ask him: "do you agree that that statement is true?" Now, everybody in the courtroom saw you reading from the book. He knows you're reading from the book and you're going to get an objection. "Objection, your honor, counsel is reading from the book." Right? But here's the problem that I've never had a judge sustain that objection. Why? Because the judge says: "no, he asked him, do you agree with this statement?"
Heck I could ask him, "you agree with this statement that the moon is made of cheese," right? I could have said, "do you agree with this statement?" And I could have memorized and just spit out that verbiage, but it's more powerful when you're reading it from an actual text.
The next thing that the officer's supposed to clarify as whether the driver had any brain damage, brain tumors or inner ear problems, that's on page 22 of section eight. A lot of times you're going to see on a dash cam video, the officer giving the HGN test while your client's sitting in the vehicle, he's going to have him stick his head out. He's going to do a quick pass. Now that might be phase one and he might pull him out and give it to him again. But let's say he gives the HGN test in the car, pulls them out, gives them the walk and turn one leg stand. And that's it. Well, your client's sitting. You're going to say: "officer, isn't it true that the administration of the HGN test is required to be administered while the driver is standing?" He's going to say: "I don't know how to remember." That's going to be on page 28 of section eight. You can refresh his memory. If he admits he's read it. You could get it in under evidence code 771 or use a backdoor trick. Do you agree with this statement?
Now, let's say that you're able to show that the officer is holding the stimulus too close to your client's head. And the only way you're going to be able to prove that is on video because the officer knows it's 12 to 15 inches. Well, if you can show it, you're going to be able to go to the robustness of the HGN test on page 21 to 22. And what that's telling us is that when the officer holds a stimulus closer than 12 inches, they're going to see a more erroneous sign than if the stimulus was held 12 to 15 inches. What does that mean? Erroneous signs, false indicators. That's what it means. Okay? He's creating a false indication because his angles are going to be off. The administration is going to be off. You might have the officer, he might say something like "well, the eyes never lie." Well, there can be false positives during the administration of the HGN test. And again, where are you going to find that? That's on the NHTSA study, the robustness study, that's on page 19.
What you want to establish is also that: "hey, why my client was standing there. He didn't wobble. He didn't sway. He followed your instructions. So following an instruction goes to divided attention ability to divide his attention, to follow your instructions. He's not swaying. He's not hobbling. He's not falling over." That's on section eight, page 28 of the NHTSA manual.
Moving on. Let's talk about other things that cause false HGN. Section eight page 17, the gravity in certain head positions can result in a nystagmus. You might develop a cross-examination theme on these other things. And you're going to have to ask the officer, or you're going to go through it with your own expert in established that there's other causes of the HGN, which can be a false positive. When a person spun around, it can cause a post rotational nystagmus. That would be a situation when your client is in a car wreck, he spins out maybe a rollover and that's on page 16 is section eight.
Also, If the stimulus is not contrasting, it's not a different color or it's not a penlight that can cause HGN because he's having trouble following the stimulus. That's on page 27 in section eight.
What else can cause interference with the driver's performance on the HGN test? Well, if we go to page 74 of section eight, when dust and other eye irritants can interfere with the driver's performance, optokinetics. What the heck is that? That's a fancy word for flashing lights can make your client appear to have HGN, because think about it. It's a strobe light and your eye is reacting to the strobe light. Also, if your client is facing traffic and you can see in the video, cars going by, a car going by can grab the eye's attention. Where are you going to find that? Section eight, page 18. Now, if you have access to the instructor's manual, they go into a little deeper dive on section eight page 18. They actually instruct the officer to face the driver away from potential distractions, face them away from the street facing away from oncoming traffic. Okay?
And it says face them away from flashing lights or strobe lights, section eight page 74. Just a quick note, our full course on the cross-examination of the arresting officer's going to have everything you heard here. Plus more in PDFs, there'll be downloadable. You'll have access to all 14 participant manuals. Plus we are putting up the instructor manuals and the robustness test. They thank you for listening to the DUI Trial Lawyer's Academy Podcast. This is your host DUI trial lawyer, Patrick Silva. Now put on the boxing gloves, climb into the ring and have a great [inaudible 00:12:21]

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