HGN: Five Reasons It's Junk, Five Reasons It Comes In Anyway

Horizontal gaze nystagmus argued both ways, and the honest answer neither side gives.

Show Notes

It's one in the morning and you're on the shoulder of a road. An officer is holding a pen twelve inches from your face, telling you to follow it with your eyes only. You do that for about a minute. Then he arrests you.

You cannot see what he saw. Neither can a jury. There is no video of your eyes, no number, no printout. Just a man who will testify about what your eyes did, and no way to check him.

This is horizontal gaze nystagmus, the strangest piece of evidence in a Florida DUI case. I argue it's junk as hard as I can, then turn around and argue it comes in anyway, just as hard, and then tell you what I actually think, which is neither one.

Five reasons it's junk: a medical test given by someone with no medical training, confounds everywhere and none ruled out, an administration that can manufacture the result, validation that isn't independent and measures the wrong thing, and nobody able to check the officer's work.

Five reasons it comes in: State v. Meador settled it, the underlying physiology is real, the confounds cut both ways, it arrives as corroboration rather than alone, and guardrails already exist.

The honest answer: by the time an officer pulls out that pen he has already decided how the stop ends. The eyes are not how he decides. The eyes are how he writes it up. Which means calling the whole test junk mostly misses, and will cost you credibility you need later.

Hosted by Rory Safir, a St. Petersburg criminal defense, DUI, and injury lawyer, NHTSA-recognized as both a practitioner and an instructor in standardized field sobriety testing. Referrals and co-counsel welcome at [phone] or thesafirlawyer.com.

Narrated with an AI voice clone of the host. The analysis is his.

For information only. Not legal advice, and no attorney client relationship is created.

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