Nystagmus in the Courts

Jurisprudence over whether officers may testify about defendants’ horizontal gaze nystagmus (HGN) in impaired driving trials has failed to follow a smooth path. In fact, one could fairly note that more than the defendants’ eyes have jumped all over the place. First, our state supreme court said that testimony from a police officer regarding the results of an HGN test performed by the defendant was inadmissible without the evidence establishing that the HGN test was scientifically reliable. State v. Helms, 348 N.C. 578 (1998). The legislature responded by amending Rule 702 in a manner that, according to the court of appeals, “obviat[ed] the need for the state to prove that the HGN testing method is sufficiently reliable” and permitted law enforcement officers trained in administering the HGN test to testify about the defendant’s performance. State v. Smart, 195 N.C. App. 752 (2009). But forget admissibility for a moment. Does HGN evidence prove anything much anyway? A recent unpublished case from the court of appeals indicates that it does not.

State v. Sewell, No. COA14-269, ___ N.C. App. ___ , 768 S.E.2d 650 (2015) (unpublished).

The facts. Margaret Sewell and a passenger in her car were stopped at a North Carolina State Highway Patrol checkpoint in Durham on November 16, 2012. The trooper who asked for Sewell’s license and registration smelled a strong odor of alcohol coming from the vehicle and saw that Sewell’s eyes were red and glassy. Sewell’s speech, however, was not slurred and she easily retrieved her license and registration. She initially denied drinking alcohol that evening, but subsequently admitted to drinking a glass of wine. The trooper asked Sewell to perform field sobriety tests. The trooper noted no clues of intoxication on the one-leg stand or walk and turn tests, but noted six of six clues on the HGN test. Sewell also submitted to a portable breath test, which was positive. Based on these results, the trooper arrested Sewell and charged her with DWI.

Legal argument. Sewell moved in superior court to suppress the evidence gathered after she was arrested on the basis that trooper did not have probable cause to arrest her. The trial court agreed and granted the motion. The State appealed.

Holding. The court of appeals held that the trooper’s observation of Sewell’s red, glassy eyes, six of six clues on the HGN test, and positive results on the portable breath test did not provide him with probable cause that Sewell was driving while impaired. In considering the totality of the circumstances, the court noted the lack of evidence that Sewell was the source of the alcohol odor emanating from the vehicle as well as evidence that: (1) Sewell’s speech was not slurred, (2) she easily retrieved her license and registration, (3) she was steady on her feet, (4) she followed the trooper’s instructions, (5) she was polite, cooperative, and respectful, and (5) she exhibited no clues on the other field sobriety tests.

Significance. We already knew that the defendant’s consumption of alcohol combined with a positive result on a portable breath test wasn’t sufficient to establish probable cause to support his arrest for DWI. See State v. Overocker, ___ N.C. App. ___, 762 S.E.2d 921 (2014) (discussed here). But one might have expected a significant number of clues on a field sobriety test to change the balance. According to Sewell, six of six clues on the HGN test, without more, does not.

Unpublished. I mentioned early on that Sewell was unpublished. So the appellate courts might ignore it in the future as it is not controlling. But that certainly won’t prevent it from making the rounds (as these things tend to do).

What do you think? Is Sewell a surprise? Do you think it would have come out differently if the clues were noted on one of the other two field sobriety tests to which Sewell submitted? Does this case represent the appellate courts’ lingering skepticism regarding HGN? Cf. City of Wichita v. Molitor, 341 P.3d 1275 (Kan. 2015) (holding that the lower court erred in allowing the State to rely on “scientifically unproved HGN test results” to establish reasonable suspicion for impaired driving). Or not? Cf. State v. Jackson, ___ N.C. App. ___, 767 S.E.2d 149 (2014) (unpublished) (“Given Officer Noble’s knowledge, experience, training, and education, he was better qualified than the jury regarding the administration and interpretation of the HGN test and his testimony on the issue of defendant’s impairment was helpful to the jury.”)









22 thoughts on “Nystagmus in the Courts”

  1. (Relevant Background: 12 years current LE, Cert. SFSTs, Advanced DWI certs, 10 of those years in a patrol function)

    Sewell itself does not surprise me. I think officers give the weight of portable breath testing too much credit. Meaning, far too often to I see officers rely on portable breath tests. Someone could perform the tests (SFSTs) to satisfaction and when the officer gets a positive on the portable breath test (Which do give read outs to an estimate of their BAC) that tends to be what builds there confidence in the arrest.

    The HGN does work when put in conjunction with all the batteries of the testing. DWI from start to finish is a totality case. To judge otherwise would be foolish. Some people have medical issues, others may give a negative reading on the breath test but fail to perform the SFSTs to the satisfaction of the officer. Hence, officers need to move to blood tests with search warrants if able to.

    Based on this case, it was a license check, thus bad driving probably didn’t get observed. Second, I commend the officer for being truthful!!! He wrote she performed this way, I saw this, and I made an arrest. The officer may be right, she was impaired and if she was a professional drinker, she could perform better than a non-professional. I have observed several alcoholics perform tests fairly decent but there BAC was in the teens. This is why I say it is the totality. To attack the HGN is unnecessary (my opinion), it’s a tool, not an absolute. These tools are provided to help officers and the courts make decisions.

    Just because the hammer bent the nail as we hit it doesn’t mean the hammer is bad, it was the swing of the hammer by the operator.

    Notice the defense argued the probable cause not that she wasn’t drunk, not that the HGN was false. They did their job by proving there wasn’t enough to convict.

    Given the officers position, admission of consumption, strong odor of an alcoholic beverage, unknown positive reading on the PBT, and six out of six clues on the HGN which those who have been trained know, means high percentage of a chance that they are a .08 or better. Note: SFSTs are designed to be used as a tool and not absolutes. When we were trained, this is exactly what they taught us. In addition to that, the officer’s level of experience was not stated and that may or may not be factor.

    If used correctly (I am not saying the trooper didn’t) the HGN works. Clearly the officer saw something or didn’t see something else (Other indicators) or didn’t document it properly, or the DA missed the opportunity to object and argue his/her case, I don’t know.

    I can only judge what I just read.

    I don’t think this case is a good representation as (from this reading) does not seem to support that HGN doesn’t work, it simply says it wasn’t enough by itself or in conjunction with few other factors.

  2. One more note, Officers need to perform the HGN properly if a true clue is to be seen, I have witnessed a lot of officers perform this improperly.

  3. I have to say that this does not surprise me at all. I thought the law was very clear, that the DWI limit was 0.08 or imprishably impaired? To many of our courts fail to enforce the law as written, thus, these decisions come out. Who knows, the Trooper that stopped this defendant from driving could have saved countless lives by taking her off the road. Now, this driver will feel impowered to continue to drive after consuming alcohol, which had to be enough get their BAC over the .08 level.

    • Couldn’t agree more Jon,

      My confusion with a lot of this is the courts .08 misinterpretation. Meaning, so often do I see the prosecution prove that the person was noticeably impaired. Which has to be proven and defendant found guilty prior to the numbers being provided to the judge, at least it is this way in Guilford, Rockingham, and Forsyth, to the best of my knowledge.

      The fact is someone can be impaired at .04, there are people out there, especially the ones that are new to consumption of alcohol. I think there is a lack of training on both sides, officers don’t know the lawyers side and vice versa.

      Unfortunately your right, she may do it again…Or she may count her blessings and never do it. There is no way to tell.

      And yes they should enforce as written, making sure the punishment fits the crime. Which on that note I have seen a defendant plead guilty and the judge say “I don’t think so, not guilty”? Makes no sense to me.

  4. It’s a shame that it takes superior court, at the minimum, to establish this. I have had similar cases and one just has to assume that it won’t be won in district court. In this case, the attorney even went ahead and plead guilty in district court knowing that it would just be a waste of his time. Overrocker was also convicted in district court.

    Anyone have any input why judges in district court seem scared of granting these kinds of motions to suppress?

  5. Of course this is the Court of Appeals showing its doubts about the reliability of the HGN. The Court basically said, “Show us the scientific validity of this test.” Then the legislature, in its ever-increasing effort to convict anyone suspected of DWI, and taking away the authority of the Courts, said, “This evidence is admissible.” So fine, it is admissible, but it doesn’t show anything without the scientific validity that it is accurate. The legislature, for the reasons above, has done the same thing with the DRE. It is now admissible. But what does it really show? The Courts need to take back what is theirs. All of this stuff may be admissible when the dust settles, but that is for the Court to decide.

  6. For those of us who, like myself, suffer with some neurological problems, any field sobriety test or other behavior observed by a law enforcement officer 40 or so years our junior can be interpreted as intoxication. Is there any legal protection for people like me?

  7. On the issue of HGN’s effectiveness, of course officers believe it’s effective. The only time they ever use it in the field, the subject is driving late at night and/or already suspected of DWI, has an odor of alcohol, admits to drinking, and gives a positive reading on the PBT. I’m not sure these subjects make an adequate control group for determining HGN’s objective effectiveness.

    On the issue of admissibility, I’m not sure whether an officer administering HGN properly and having years of experience with the test makes any difference. Post amended 702 and McGrady, it would be very very rare to find an officer who could satisfy the Daubert elements through testimony. This isn’t a critique of officers; this is a critique of NHTSA. After the Court in Helms ruled that HGN wasn’t reliable, you would have hoped that the test itself would have been reevaluated or altered to become more reliable. Maybe ask scientific/medical professionals or universities to run independent studies… Instead, NHTSA and the Governor’s DWI Task Force spend seven years lobbying to circumvent the need to prove HGN’s reliability.

    With the 2011 amendment to 702 and the McGrady and Sewell decisions, let’s hope that these agencies do what is right the second time around. Stop using a test that isn’t based in the scientific method, that hasn’t been peer reviewed, that doesn’t have an established scientific error rate, and that isn’t considered as reliable in the medical community.

    The CoA in the Jackson case relied on a definition of expert testimony that was issued 20 years before NC became a Daubert state. I can’t understand that logic considering the thoroughness of the McGrady decision which discussed the same issue.

    If I’m being honest, the other field sobriety tests may become an issue too. Surely an officer is using specialized knowledge that the common juror does not have when testifying about scientifically validated clues exhibited in SFSTs. Sounds like a subject matter that would be appropriate only for an expert to discuss. The same Daubert/702 issues that are present for HGN could arguably be applied to the other two test.

    • The other two SFSTs would not require an expert because a lay person could testify to their observations of a person swaying, stumbling, or unable to keep their balance and the average person would recognize these as indications of impairment. Therefore, no specialized, scientific, or technical knowledge is necessary to assist the trier of fact to understand the OLS and WAT Tests.

      • Rebecca, a lay person does not have the requisite knowledge or training to interpret standardized scientific clues. I agree that an officer’s personal observations of a suspect’s balance and possible swaying is appropriate testimony for the jury. I do not agree that clues based on alleged scientifically standardized tests are in the same category. Although most jurors have heard of roadside tests, you will not find one who knows that there are specific trivial clues that create a percentage based likelihood that a suspect is over a .10 BAC. Those specific clues and their associated BAC percentages are outside the purview and background of the average juror and are only known to the witness through specialized technical training. In my opinion, this kicks that type of evidence out of the Rule 701 category.

  8. Good Morning Rita,

    Yes there is protection. The Standardized Field Sobriety Testing, as I said above is a tool. People should not be arrested nor convicted based solely on the SFSTs. I have had stops where I thought someone may be impaired and they did awful on the SFSTs. Because of my training and experience, I noticed a lot of other indicators were absent. Common sense approach of asking some basic questions and the person providing me with the answers revealed the medical condition they had. Thus there was no arrest.

    No officer wants to take a person’s freedom unlawfully. I am not saying it doesn’t happen. I am saying officers make mistakes or lack training and experience etc. Of course there is that officer out there that just doesn’t need to be there. Believe me fellow officers want them gone just as the people would. We have no ambition to be sued and loose our careers because of someone’s bad efforts.

  9. I represented both Sewell and Overrocker throughout the trial process, and helped them get the appellate defender appointed when the state appealed the ruling in superior court. The cases were tried in district court, and lost(embarrassing, yes). We appealed to superior court and won both cases in one session heard in one week. My recording of the district court hearing/testimony was helpful imho, in that the officers were afraid to change their testimony in the superior court hearing (I’m not accusing any of them of dishonesty, but I’ve seen incidents of selective memory before). Kudos and my eternal gratitude to the appellate attorneys, who made it all work.

  10. The fact that this is an unpublished decision speaks volumes about its threat to HGN. Nonetheless, I am quite sure many defense attorneys will try to use it in District Court and I would not be surprised if a District Court judge accepts it as binding precedent and erroneously applies it to disregard the value of HGN testing. Unpublished opinions do not constitute controlling legal authority and orally citing unpublished opinions at trial is disfavored. It was unpublished for a reason as it has been deemed to have little to no value as a precedent, but I am quite sure this will be all over a NCIDS publication soon on how to defend DWIs.

    First off, I want to give credit to the Trooper for being extremely honest. Sometimes it can be easy to classify every drunk into the red glassy eyes, slurred speech, and uneasy on feet category. This Trooper provided exculpatory evidence which to me makes the HGN seem even more believable. I believe, as our Attorney General obviously believed, the Superior Court and Court of Appeals got it wrong in this case. Unfortunately the State lost 3-0 (panel of Stephens, Elmore, and Calabria), so the State’s long shot discretionary review to the Supreme Court was as expected denied back in March. MADD should take note of this decision and continue to track this 3 judge panel so the public can be informed when voting comes around again.

    This is just another example of the needed reform to NC GS 20-16.3. The alcohol screening devices currently used by law enforcement are extremely accurate. One such common device is the Alco-Sensor FST made by Intoximeter Inc which is the same company that makes the EC/IR II which is used to prove alcohol concentration beyond a reasonable doubt. NC GS 20-16.3 should be amended to allow the specific alcohol concentration result to be admitted for purposes of determining probable cause. The General Assembly dropped the ball on this.

    With the amount of people dying and being injured on our roadways in this state on a daily basis, yes daily basis, our legislators and our judges need to take a long hard look at our system. Not every person arrested for driving while impaired is guilty and we must ensure the presumption of innocent, but the decision rendered in State V. Sewell is highly questionable. The HGN test is admissible as expert testimony by a LEO that has taken and qualified in a Standardized Field Sobriety Class. I am far from an expert, but I know there is lots of research that indicates the probative value of the HGN. In the Sewell decision, the Court of Appeals basically ignored the results of the HGN and just rubber stamped the decision from the Durham court. Bottom line is this State particularly in some judicial districts are absolutely horrendous at ensuring that impaired drivers are punished and deterred from future conduct. It is a money game and although it has improved, this state has a lot of work to do. In the meantime, people are dying.

    • Please share your non-NHTSA sponsored sources for the probative value of HGN. In my extensive research of this test, I am yet to find anything that I would label independently probative.

      I echo your concerns about driver safety, but to blame the logic used in the Sewell case for an increase in crashes is irresponsible. A driver must be stopped before the HGN test can be administered. The majority of drivers that exhibit four or more clues are taken off the road.

      Critiquing HGN isn’t a public safety issue; it’s a reliability and admissibility issue at trial.

    • Also, it’s misguided to give the Sewell decision less attention because it wasn’t published. There are a number of reasons cases don’t get published.

      To be sure, the COA judges have no idea whether their decision will or will not be published when they are deciding and rendering their decision. They treat every case with the same scrutiny.

  11. FYI…..House Bill 924 will allow for the numeric results of a roadside alcohol screening device to be admissible in court. I believe the Senate has a similar bill pending.

  12. Chris,
    Thanks for the update. House Bill 924 looks great. It also clears up the strange brake light statute interpretation that our Court of Appeals made (State v Heien) and was later reversed under different reasons (reasonable mistake of law) by the NC Supreme Court, but went all the way to the US Supreme Court where they essentially ridiculed the court’s statutory interpretation and upheld the NC Supreme Court.

    Really? Just make sure when you try to cite State v Sewell in oral arguments to read the first sentence on the UNPUBLISHED decision that being, “An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.”

  13. “To be sure, the COA judges have no idea whether their decision will or will not be published when they are deciding and rendering their decision.”

    North Carolina Rules of Appellate Procedure Rule 30(E)(1)
    “If the panel that hears the case determines that the appeal involves no new legal principles and that an opinion, if published, would have no value as a precedent, it may direct that no opinion be published.”

    “Please share your non-NHTSA sponsored sources for the probative value of HGN.”

    Since when was NHTSA ruled to be an incompetent agency? If you are trying to imply that all government or government funded research is tainted then I expect you to find the same research funded by defense attorneys to be tainted as well. At least with the State it is not a money game.

    The American Optometric Association has passed a resolution endorsing the HGN test as an effective test for alcohol impairment. Medical experts also have testified in support of HGN. Yes, I am aware that some testify for the defense.

    Mr. Hill says, “My recording of the district court hearing/testimony was helpful imho, in that the officers were afraid to change their testimony in the superior court hearing.”

    Mr. Hill also states on his website, “District Attorneys have a lot of responsibility in DWI cases and are sometimes not well prepared to perform all of the duties required of them because they are accustomed to guilty pleas being entered at an early stage.”

    Based on those words, I guess one is to conclude that law enforcement exaggerates the truth and prosecutors are incompetent and only win when someone pleads guilty. It is hard to keep experienced and talented prosecutors at the DA’s office because money talks. I certainly appreciate due process and the ability of all of those accused of a crime to be represented by a competent attorney, but how about defend your clients with respect to other side.

    • Brett,

      You have noted one reason that a case may not be published, not the specific reason in the Sewell decision. Regardless, unpublished opinions can still be quite persuasive. You are obviously in law enforcement and, with all due respect, may not understand the nuances of successful oral arguments.

      NHTSA studies on HGN can absolutely be deemed incompetent. If you do an extensive study of their SFST reports dating back to the 70s, it will become apparent that there is nothing scientific or objective about how SCRI conducted any of their studies. SCRI was paid to create the desired results. The scientific method doesn’t start with a conclusion

      It is obvious to every optometrist that I’ve discussed HGN with that the AOA was heavily lobbied to draft that resolution. You will never find a medical professional who will endorse the way the HGN test is administered; an eye exam conducted in the dark, outside, directly beside a highway, by a minimally trained officer, who has no background in any scientific/medical field.

      Regardless of these talking points, HGN testimony can’t pass the Daubert standard set out in the PUBLISHED McGrady decision. As I mentioned in an earlier post, that isn’t an indictment on testifying officers. NHTSA has let them down. As the Kansas Supreme Court just noted, HGN is more similar to using a Ouija board that it is to any reputable scientific theory.

  14. gaze nystagmus is a joke as admitted in court. by fiat the legislature made an expert of anyone who heard a 5 minute talk on nystagmus. there is no mention as to what training is necessary. just successfully complete some training.
    the research shows that gaze nystagmus is not a reflection of impairment but a predictor of alcohol concentration. 702 says the “expert” can’t testify as to alcohol concentration but only impairment. the supreme court routinely bows to the almight dwi and deprives citizens of constituional rights. see McKenzie.
    maybe the court of app just couldn’t take the bizarre reasoning of the supremes anymore.


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