If the officer checks your eyes, simply being able to follow the pen (or their finger) doesn’t mean you passed the test.  What the officer is looking for is an involuntary twitch of the eyeball called nystagmus – specifically, Horizontal Gaze Nystagmus (HGN).

            Nystagmus is a condition that is checked for everyday in thousands of individuals and the HGN is usually administered by someone with much more schooling than a police officer – their called doctors!  Specifically, neurologists use this test on a daily basis to check patients for various neurological conditions such as multiple sclerosis and Parkinson’s disease.  There are numerous substances that we ingest that can also cause nystagmus including nicotine, caffeine and of course, alcohol.  Specifically, the National Highway Traffic Safety Administration (NHTSA) has told us that if a police officer gives this test using the specified procedures, it is a tool that can assist the officer in determining the likelihood of the test subject having a blood-alcohol level greater than 0.10 – specifically, there is a 77% chance that the person will test 0.10 or higher on a breath test machine (or blood or urine test). 

            The Walk & Turn test that was administered is another exercise used to assist the officer in knowing the likelihood of a subject testing 0.10.  Specifically, the officer should be trained to administer very specific instructions and then look for the following things:

                  1.      Suspect Cannot Keep His Balance While Listening To The Instructions

                           i.       Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart)

                           ii.       Do not score this clue if suspect sways/uses his arms to balance himself, but maintains the heel-to-toe position

                  2.      Suspect Starts Before Instructions Are Finished

                  3.      Suspect Stop While Walking

                           i.       Record this clue if suspect pauses for several seconds

                           ii.       Do not record this clue if the suspect is merely walking slowly

                  4.      Suspect Does Not Touch Heel-to-Toe – gap between heel and toe must be more than ½ inch

                  5.      Suspect Steps Off The Line – at least one foot of the suspect must be entirely off the line

                  6.      Suspect Uses Arms To Balance – arm(s) must be raised more than 6 inches from sides for this clue

                  7.      Suspect Makes Improper Turn

                           i.       Suspect removes front foot from the line while turning

                           ii.       Suspect does not follow directions as demonstrated (i.e., spins or pivots around)

                  8.      Suspect Uses Incorrect Number of Steps – either more or fewer steps in either direction

            Again, NHTSA has indicated that if an officer observes two (2) or more of the preceding eight (8) indicators, there is a 68% chance the subject will test 0.10 or higher.

            The One-legged stand (OLS) is the 3^rd test endorsed by NHTSA as a tool to be used to help officers determine the likelihood a subject will test 0.10.  The NHTSA guidelines instruct the officer to watch for the following:

                  1.      Suspect Sways While Balancing – side-to-side or back-and-forth motion while in one-leg stand position

                  2.      Suspect Uses Arms To Balance – arms must be raised more than 6 inches from sides to count this clue

                  3.      Suspect Hopping (to maintain balance) –resorts to hopping in order to maintain balance

                  4.      Suspect Puts Foot Down – not able to maintain one-leg position, but puts foot down one or more times during 30 second count

            As you may suspect, NHTSA tells us that if the proper instructions are administered, if an officer sees 2 of the preceding 4 indicators, there is a 65% likelihood the subject will test 0.10 or higher. 

            Your OVI / DUI attorney should be familiar with the NHTSA standardized procedures and criteria and know how to effectively challenge these tests in court.  Even if the judge says these tests are admissible at trial, a competent OVI attorney / DUI attorney should know how to deal with these tests in front of a jury (so long as the client was literally “falling down drunk”).