My April 1, 2017, blog entry points out that police officers learn information overload all too fast at the police academy, including about field sobriety tests that police use as preludes to arresting for driving while under the influence of alcohol or drugs (also known as DWI and DUI).

The horizontal gaze nystagmus test (“HGN”) is routinely included among the field sobriety tests. Even if the test’s name sounds scientific, in reality the test involve’s the police officer having the DWI suspect follow a pen or other stimulus with the suspects’ eyes, while the officer checks whether the eyes are moving in a smooth or jerky manner. Jerky movement might be nystagmus, whose presence means nothing worse than the presence of alcohol in one’s bloodstream, rather than the alcohol level. Presence of nystagmus should mean nothing more at trial for the prosecution than the presence of alcohol in the suspect’s bloodstream. Schultz v. Maryland, 106 Md. App. 145, 174, 664 A.2d 60 (1995).

In 2010, I blogged about HGN testing. Today, I update that HGN caselaw summary discussion as follows:

First, a Westlaw search of “Nystagmus” finds no published Virginia appellate opinions that address the reliability nor admissibility of HGN tests, other than Henshaw v. Virginia, 3 Va.App. 213 (1986), which is an appeal challenging limits on jury voir dire questioning and the trial judge’s improper comment about the evidence of the stop of the defendant’s car. Henshaw speaks merely in passing dicta (to the point of even mis-naming the HGN test as the “alcohol nystagmus test”  — where HGN was never addressed nor contested by the parties, nor apparently even preserved for appeal —   in a footnote mention that:

“The alcohol gaze nystagmus test ‘consists of having the subject cover one eye, follow an object, such as a pen or finger, with the open eye until the subject’s eye is at an angle of 45 degrees from his or her nose.’ See 2 D. Nichols, Drinking/Driving Litigation § 26.01 (1985). The test is thought to be a valid measure of blood alcohol content, but is subject to criticism on the basis that its administration in the field may yield imprecise results and may be clouded by physiological processes other than intoxication. Id.”

Henshaw.

The best part of Henshaw for the defense is that HGN testing is “subject to criticism on the basis that its administration in the field may yield imprecise results and may be clouded by physiological processes other than intoxication.” Henshaw.

Beyond Henshaw, presence of nystagmus is arguably a medical diagnosis, and Virginia appellate caselaw generally requires a physician or other suitable healthcare professional’s testimony to render a medical diagnosis. For instance: “Beyond question, the diagnosis and treatment of mental disorders is not a field of expertise reserved exclusively to medical doctors. Rather, the provision of mental health care frequently occurs through other professionals who are educated and trained for the specific purpose of providing therapy to those with mental disorders.” Conley v. Virginia, 273 Va. 554 , 562 (2007).

Moreover:

“An opinion concerning the causation of a particular physical human injury is a component of a diagnosis, which is part of the practice of medicine. Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496, 507 S.E.2d 355, 358 (1998). Nash was a licensed psychologist, not a medical doctor. Therefore, since Nash was not a medical doctor, he was not qualified to state an expert medical opinion regarding the cause of John’s injury.” John v. Im, 263 Va. 315, 322 (2002).

The most important appellate case for the defense to attack HGN testing is Schultz v. Maryland, 106 Md. App. 145, 664 A.2d 60 (1995).) — which results from a careful review of the then-existing caselaw — is Schultz v. Maryland, 106 Md. App. 145, 174, 664 A.2d 60 (1995).)  Schultz, which results from a careful review of the then-existing caselaw concludes that HGN testing is not reliable to show anything more than the presence of alcohol in the bloodstream. Schultz, 106 Md. App. at 174 (“[w]e take judicial notice that the results of HGN testing, if the test is properly given by a qualified officer, are admissible to indicate the presence of alcohol in a defendant.”)

Schultz further confirms that:

“The cases and literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of nystagmus. They include: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy…”

Schultz,  106 Md. App. at 180, 664.

In that regard:

“If the Government introduces evidence that a defendant exhibited nystagmus when the officer performed the horizontal gaze nystagmus test, the defendant may bring out either during cross examination of the prosecution witnesses or by asking the Court to take judicial notice of the fact that there are many causes of nystagmus other than alcohol ingestion.”

United States v. Horn, 185 F. Supp. 2d 530, 533, (D. Md. 2002).

Here is additional relevant caselaw:

• Illinois v. McKown, 924 N.E.2d 941 (Il. 2010) reversed and ordered a new trial, for the prosecution’s failure or inability to lay a proper foundation to admit horizontal gaze nystagmus testimony.
• “[B]efore HGN testimony can be admitted into evidence the witness must be offered to the court, and accepted by it, as an expert in the field of administering the HGN test.” Maryland v. Blackwell, 408 Md. 677, 696, 971 A.2d 296 (2009); accord,  Karamychev v. D.C., 772 A.2d 806 (D.C .2001).

In sum, in Virginia, police should be precluded from concluding the presence of nystagmus, because that is a conclusion of a physiological condition that should only be rendered by a physician or other suitable health care professional. Conley v. Virginia, 273 Va. 554 , 562 (2007). Even though other states have published appellate caselaw okaying HGN testimony under certain circumstances, Virginia lacks any such caselaw beyond the passing dicta in Henshaw v. Virginia, 3 Va.App. 213 (1986), which dicta itself confirms that HGN testing is “subject to criticism on the basis that its administration in the field may yield imprecise results and may be clouded by physiological processes other than intoxication.” Even when HGN testimony is permitted, the defense is entitled to “bring out either during cross examination of the prosecution witnesses or by asking the Court to take judicial notice of the fact that there are many causes of nystagmus other than alcohol ingestion.”  United States v. Horn, 185 F. Supp. 2d 530, 533, (D. Md. 2002). Finally, presence of nystagmus should mean nothing more at trial for the prosecution than the presence of alcohol in the suspect’s bloodstream. Schultz v. Maryland, 106 Md. App. 145, 174, 664 A.2d 60 (1995).