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Attacking horizontal gaze nystagmus evidence

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Image from National Institute of Standards & Technology.

Horizontal gaze nystagmus tests are junk science, but not all judges have the same view. Here are some items to consider in attacking horizontal gaze nystagmus tests:

“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; (10) multiple sclerosis; (11) Korchaff’s syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension;   (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use. See State v. Witte, supra; State v. Clark, supra; State v. Superior Court, supra; Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney’s Textbook of Medicine §§ 84.63 and 84.64 (1990), and other cases and treatises hereinbefore mentioned.”

Schultz v. Maryland, 106 Md. App. 145, 180, 664 A.2d 60 (1995).

“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).

“We 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 v. Maryland, 106 Md. App. 145, 174, 664 A.2d 60 (1995).

“[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) . Jon Katz