Cross-Examination on Horizontal Gaze Nystagmus in a Drunk Driving Case

Attorney - Are you familiar with other causes for early nystagmus—that is, other than alcohol?
Officer - I've read something about it.

Attorney - Are you familiar with the effects of a streptococcus infection on nystagmus?
Officer - No, I'm not.

Attorney - The effects of hypertension on nystagmus?
Officer - No.

Attorney - The effects of motion sickness, such as in a car?
Officer - No.

Attorney - The effects of caffeine?
Officer - No.

Attorney - Nicotine?
Officer - No.

Attorney - Aspirin?
Officer - No, counselor, I'm not.

Attorney - Antihistamines? Depressants? Anticonvulsants?
Officer - As I said, no.

Attorney - Flu? Epilepsy? Inner ear problems?
Officer - No.

Attorney - Isn't it true, Sergeant, that these and dozens of other conditions can cause early onset of nystagmus?
Officer - I couldn't say.

Attorney - You only know about one possible cause, right? Alcohol?
Officer - Alcohol causes nystagmus,yes.

Attorney - By the way, Sergeant, was my client suffering from any of these conditions—flu, epilepsy, car sickness?
Officer - I really couldn't say.

Attorney - Had he taken any aspirin in the hours before you gave him your version of the nystagmus test?
Officer - I couldn't say.

Attorney - Had he smoked a cigarette?
Officer - As I've said, I don't really know.

Attorney - Drunk any coffee?
Officer - Counselor,I have no way of knowing.

Attorney - Sergeant, did you even bother to ask him?
Officer - Obviously not.

Attorney - Are you familiar with "circadian rhythm"?
Officer - Circadian rhythm?

Attorney - Yes.
Officer - No,I'm not.

Attorney - You are not familiar with the fact that our bodies have a "biological clock" that governs our physiological functions? A subconscious 24 hour clock that tells our bodies what to do, when it's time to sleep, that sort of thing?
Officer - Oh, yes, I've heard of that.

Attorney - Then you're aware that from midnight to 5:00 Officer - M., this circadian rhythm decreases the angle of nystagmus onset by one degree?
Officer - I was not aware of that, no.

Attorney - This would increase your reading of a person's level of intoxication, wouldn't it?
Officer - By a small amount, I suppose.

Attorney - You would think his blood-alcohol level was higher than it actually was, right?
Officer - By a small amount.

Attorney - Yet, you were not aware of this phenomenon?
Officer - Not as it related to nystagmus.

Attorney - Sergeant, do you consider yourself an expert on nystagmus?
Officer - I believe I am.

Attorney - Do you understand how it works?
Officer - You mean the physiology?

Attorney - Yes.
Officer - I can't say I do.

Attorney - Do you understand the dozens of potential causes of early nystagmus—besides alcohol?
Officer - I've already said I was not familiar with these.

Attorney - What is nystagmus, Sergeant?
Officer - What is it?

Attorney - Yes. Why does the eye react the way it does? What conditions or substances can cause it?
Officer - I couldn't say.

Attorney - Nevertheless, you consider yourself an expert?
Officer - I am qualified, yes.

California DUI: A Drunk Driving Law Guide is intended to counter the political pressures of extremist groups seeking the passage of unfair laws, the erosion of constitutional rights and the eventual return of prohibition. The National Motorists Association sets forth its positions on controversial drunk driving issues, such as unconstitutional roadblocks, overemphasis on breath alcohol tests, unfair criminal penalties and the imposition of "automatic" license suspensions. See also "Responsibility in DUI Laws, Inc.", an organization dedicated to reforming harsh and misdirected DUI laws.

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