What if the officer is shorter than the person testing, does that affect the outcome of the test?
I believe it would be safe to say that the vast majority or police officers in larger jurisdictions are trained on the administration of Standardized Field Sobriety Tests, one of which is the Horizontal Gaze Nystagmus (HGN) test. That having been said I also believe that there are some small departments where the officers have not been so trained or keep up with the developments in this area. The same may be the case with officers whose duties do not include traffic enforcement, such as vice, homicide or the like.
There are three (3) standardized tests, the HGN, the Walk and Turn and the One Leg Stand. There are a few other tests commonly used by officers in the field, such as the finger count, finger to the nose, hand slap and Romberg Test, which consists of tilting one’s head back and estimating the passage of time.
Your question deals with the HGN and I will address only that test in this article. As with all standardized tests, the HGN must be explained and performed in a standardized manner in order for the tests to be considered valid. However, some judges will permit variations and then rule that the failure of the officer to comply with a strict protocol may be considered by the jury in assessing the weight to be given to this evidence. This charade is sometimes referred to as the bungling cop’s failure to know how to perform the test affects the weight to be given the evidence but not its admissibility. Unless you have been a prosecutor for the vast majority of your career before ascending the stairs to be a prosecutor with a black robe I think it safe to call this the bull crap rule. Let’s face it how hard is it to understand that something is either done right or done wrong and if done wrong it should not even be considered at all?
Nystagmus is a naturally occurring condition in ever normal human. Many of you have had your family doctor administer the test on you during office visits to your doctor. Do you really believe he is trying to determine if you have been drinking alcohol? Of course not. There are a number of medical conditions which could cause nystagmus, such as head injuries, brain conditions, eye strain and high fever to name just a few of such common conditions. It can also be caused by flashing lights or when the eyes are watching moving objects such as cars passing by the scene. It should also be noted that certain people have natural nystagmus which in no way is caused by alcohol or any other substance.
Before the administration of this test it is required that the officer ask certain questions to insure that the person is a candidate for the test, such as have there been a recent head injuries, does the person wear glasses, is there a history of brain injuries and does the person have sight in both eyes. Once this pre-screening is done the candidate is asked to stand straight and remain as still as possible. The officer will then hold some type of stimulus, it could be his finger or a pen approximately 12-15 inches in front and slightly above eye level and make a series of passes. It is VITAL that the stimulus be moved at an appropriate spped and in a horizontal manner keeping the stimulus as level as possible during the test. Many, many times I notice that the officer moves the stimulus too fast and in an upward or downward fashion. This can induce movement of the eyes that can be easily misinterpreted as nystagmus by the untrained eye. If there is a disparity in the height of the officer and the subject some corrective measures must be made in order for the officer to properly evaluate the results. Often the only person seeing the results of this test is the officer himself and there is no independent confirmation of his interpretation.
I STRONGLY suggest that anyone asked to perform this test, in particular politely refuse to submit.