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

Attorney - Isn't it a fact that the federal guidelines recommend 10 degrees per second on the first movement and 20 degrees per second on the second one?
Officer - Well, that's not how we do it.

Attorney - You disagree with these national standards?
Officer - I do it the way everyone else on the patrol does it.

Attorney - So you believe your own system is more accurate?
Officer - It's accurate, sure.

Attorney - Sergeant, at what angle did you first detect jerking in my client's eyes?
Officer - It was before 45 degrees. 41 degrees, as I recall.

Attorney - What did you do then?
Officer - What did I do? I estimated the angle and determined that he failed the test.

Attorney - (Reading) "When he first detects a slight jerking, he should stop moving the stimulus to make sure that the jerking continues..." That's from the NHTSA manual, Sergeant. I didn't notice you do that in your demonstration.
Officer - When the jerking starts, that's the end of the test.

Attorney - (Reading) "If the nystagmus stops, then the officer has not found the point of onset and he should continue his examination...." Do you recall these instructions from the NHTSA manual?
Officer - Not really.

Attorney - According to the manual, initial jerking of the eyes may be a false sign of nystagmus, right?
Officer - Maybe.

Attorney - According to the manual, you're supposed to stop movement when jerking starts and watch to see if the jerking continues.
Officer - If that's what it says.

Attorney - If you don't stop and wait, if you just end the test, you may get a false point of onset, right?
Officer - Maybe.

Attorney - And a false result—maybe showing a sober person to be intoxicated?
Officer - If you get a false result.

Attorney - You're trained to look for three signs of intoxication in the nystagmus test—angle of onset, smooth pursuit and distinctive jerking, at maximum deviation?
Officer - Correct.

Attorney - And, in fact, the NHTSA manual recommends using all three criteria in the test, right?
Officer - Correct.

Attorney - So when you conducted the test, you moved the pen to the lateral extremes of my client's eye range?
Officer - I did.

Attorney - Did you note how much white of his eyes was showing at the extremes?
Officer - Whites of his eyes? That has nothing to do with distinctive jerking at the extremes.

Attorney - So you did not take note of the whites of his eyes in this test of yours?
Officer - Of course not.

Attorney - (Reading) "Since some individuals cannot deviate their eyes more than 45 degrees, some white of the eye must show to ascertain that nystagmus is not occurring at the most extreme deviation for that individual."
Officer - That's not how we were trained.

Attorney - In other words, the jerking you saw in my client's eyes could have been because he was at his extreme deviation at 45 degrees—not because he was intoxicated?
Officer - I doubt that, counselor.

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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