Got a DUI Based Solely on Horizontal Gaze Test

[dustinj13]

My question involves criminal law for the state of: Mississippi.
I received a DUI last night. The only test the cop gave me was the horizontal gaze test. I did not do the heal to toe walk or stand on one foot. I volunteered to take a breathalyzer and also volunteered to take a blood test. But the cop did not give me either and still gave me a DUI. I drank 2 beers in the span of 2 hours. How can he charge me with a DUI based on one test. He didn't even give me a breathalyzer I feel as if this is unfair. Do you think I can get out of this charge if I hire a lawyer? He told me I failed the horizontal gaze test.

[PTPD22]

My question involves criminal law for the state of: Mississippi.
I received a DUI last night. The only test the cop gave me was the horizontal gaze test. I did not do the heal to toe walk or stand on one foot. I volunteered to take a breathalyzer and also volunteered to take a blood test. But the cop did not give me either and still gave me a DUI. I drank 2 beers in the span of 2 hours. How can he charge me with a DUI based on one test. He didn't even give me a breathalyzer I feel as if this is unfair. Do you think I can get out of this charge if I hire a lawyer? He told me I failed the horizontal gaze test.

First off, I guarantee he did not charge you with DUI based solely on one test. You may have only performed one test, but there is so much more for him to base an evaluation on. Your observed driving behavior prior to the stop, the odor of alcohol, your demeanor, your response time to questions, your ability to perform simple multitasking activities...the list goes on. And experienced DUI cop is evaluating you every second and finding articulable clues to either reinforce or dispel his suspicion that you are impaired. The HGN is about 70% accurate all by itself. Add in these other observations and he has more than enough probable cause to arrest you. Experienced DUI cops make successful DUI arrests (successful defined as resulting in conviction) all the time, even after the driver refuses ALL field sobriety tests! All they have to do is observe you and articulate the symptoms of impairment that they see. These observations are somewhat more subjective than the (very objective) standardized field sobriety tests. But, they are still compelling.

But, now some questions to clarify your post. Did he not offer the heel-to-toe and one-leg-stand tests? Or, did you refuse them when he asked? The tests are voluntary and he cannot use your refusal as an indication of guilt. However, neither can you refuse and then protest in court that you were denied potentially exculpatory evidence!

You say that he did not give you a breathalyzer. Do you mean that he did not take a breath sample from you right there on the side of the road? Or, do you mean that he never took a breath sample from you at all...even back at the station after he had arrested you? If he never allowed you an opportunity to provide a breath sample at all, he screwed up and your attorney can likely have the charge dismissed with ease.

That is, of course, IF you were actually charged with DUI! How old are you? Were you actually charged with under 21 driving after consuming alcohol? Or maybe, underage possession/consumption of alcohol? For either of those charges, smelling it on your breath and the HGN is plenty for a conviction.

[dustinj13]

He told me that's all he needed to charge me with DUI (that one test). He never gave me a breathalyzer in the field or at the station. HE asked if I would blow and if I would take a blood test, I said I would but he never gave me either. He never offered the hell to toe test or the stand on one leg test. This was at a road block, I was completely sober. I think the cop just wants to be an ass and waste my time.

[DWI9]

Dustin, you never answered PTP's question on your age...until that is answered it's very difficult to try to answer your questions.

[dustinj13]

I am 28 years old.

[PTPD22]

Hmmm, Ok. Well, with the question of a possible under 21 charge off the table, it sounds like you lucked out with a lazy or inept cop. In the absence of either a chemical test or a refusal, any half-assed DUI attorney should be able to make this go away. While a 70% accurate HGN test and some subjective observations easily meets the probable cause standard for arrest, that remaining 30% easily amounts to reasonable doubt in court!

Did the cop arrest you and take you back to a station with a BAC machine? Did he release you with a citation or did he book you into jail? Did he tow your car? Since he didn't offer you a breath test, did he even read you an implied consent warning? Is there anything more to the story that he could articulate amounted to a refusal such as you being argumentative, combative, or otherwise unruly?

[dustinj13]

He let someone come a get my car from the side of the road (rural area). He did not read any implied consent warning, he booked me at the station (I even asked for a breathalyzer and chemical test) he refused to give me either. I was not combative, I was very polite. He kept saying the horizontal gaze test is "enough for him". I was researching and it looks like the hgn test is not admissible in Mississippi courts.

[falseaccusationvictim]

These dumb officers need to stop giving nystagmus tests. Although it could be the result of intoxication, there are about 40 other causes that have nothing to do with drugs or alcohol. I have genetic nystagmus and I would be pissed off if I was arrested for that.

[cdwjava]

These dumb officers need to stop giving nystagmus tests. Although it could be the result of intoxication, there are about 40 other causes that have nothing to do with drugs or alcohol. I have genetic nystagmus and I would be pissed off if I was arrested for that.

Your "genetic nystagmus" should appear different than HGN/VGN brought on by alcohol or drug impairment. It is a very telling test and one that cannot be masked by the actions of the subject. The HGN can be the single most accurate and objective of all the tests. Being honest in responses to the officer's questions and performing the additional tests in addition to the HGN would help to affirm any genetic predisposition. So, since most the general public has no such genetic predisposition, it will remain an effective part of the evaluation process when utilized properly by appropriately trained officers. The legal standard is not that the observed physiological response might have some other explanation, but whether the observed response is consistent with impairment and whether the totality of the circumstances (and observations) give rise to articulable probable cause to believe that the subject is too impaired to safely operate a motor vehicle. That standard is a good deal less than absolute certainty.

Also, the HGN/VGN is designed to be used as part of a battery of tests, and not as the SOLE test. In fact, NONE of the individual tests comprising the SFSTs are designed to be valid on their own as their individual reliability can vary between 70% and 88% (depending on the study), and taken as a battery can be effective in 91% to 94% of cases.

[Brian Simoneau]

In Commonwealth v. Sands, 424 Mass. 184, 186 (1997), the Mass. Supreme Judicial Court ruled that HGN evidence was not admissible without an expert witness such as an ophthalmologist, to explain the test and why a “positive” result might indicate that the defendant was under the influence. The basis for this ruling is that HGN is a science-based sobriety test. The same might be true in your state.