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

Attorney - In the NHTSA report, didn't it say that contacts can limit lateral eye movement, causing nystagmus?
Officer - That's correct.

Attorney - What type of template did you use in measuring the angle of onset?
Officer - I didn't use a template. No one in the highway patrol uses one.

Attorney - You did not use a template? Well, what kind of device did you use to measure the angle of onset?
Officer - None.

Attorney - None? You simply guessed what the angle was?
Officer - I didn't guess, counselor, I estimated. It was an estimate based upon extensive training and practice.

Attorney - You used protractors to check your accuracy during this training, didn't you?
Officer - Yes.

Attorney - But you didn't use one that night with my client?
Officer - As I said, I don't ever use one, nor does anyone else on the patrol.

Attorney - Sergeant, if we performed a little test right here in the courtroom, do you think you could detect the difference between 38 and 39 degrees?
Officer - I... maybe not.

Attorney - 42 and 44 degrees?
Officer - Maybe, I'm not sure.

Attorney - The accuracy of this test depends entirely on your ability to... estimate?
Officer - Of course.

Attorney - Well, when was the last time you had your accuracy checked?
Officer - Checked?

Attorney - Yes. How often do you get your ability to estimate angles checked for accuracy?
Officer - I'm not aware of any such procedure.

Attorney - Directing your attention to the NHTSA manual again, Sergeant...
Officer - Yes?

Attorney - Don't these federal reliability standards recommend monthly checks with a template to maintain accuracy in estimating the angle of onset?
Officer - I don't recall reading that.

Attorney - Would you like a moment to review the report?
Officer - No, I'm sure it's in there.

Attorney - Do you agree with the recommendation of monthly checks for accuracy?
Officer - I really don't think it's necessary.

Attorney - Are you saying you disagree with the national experts? Or are you saying that your accuracy doesn't need periodic checks?
Officer - I... just don't think it's necessary.

Attorney - You would agree that the accuracy of guessing the angle is critical to the validity of the test results?
Officer - Estimating, counselor, not guessing. And, yes, I would agree. The results depend on the estimate of the angle.

Attorney - As the computer people say, "Garbage in, garbage out," right?
Officer - Yes.

Attorney - Incidentally, Sergeant, do we have any evidence of the angle in this case?
Officer - Evidence?

Attorney - Yes. Besides your testimony: Do we have any corroboration of what the angle was?
Officer - Corroboration...

Attorney - Is there a videotape? Another witness?
Officer - No, of course not.

Attorney - I see. Then this nystagmus test depends entirely on your accuracy...
Officer - Yes.

Attorney - ...and, of course, on your honesty?
(The attorney has him demonstrate the test again.)

Attorney - I notice that you're holding the pen level with the eyes? And about six inches away?
Officer - That's contrary to the procedure recommended by NHTSA, isn't it? Officer - It's how I was trained.

Attorney - (Reading) "The first movement in each direction should be slow.... The second movement should be somewhat faster." Uh-huh.

Attorney - How many degrees per second do you move the pen during the test, Sergeant?
Officer - Degrees per second? I don't do it that way.

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.

Site Map | Legal Disclaimer