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In Virginia DUI cases, the most familiar field sobriety test is the Horizontal Gaze Nystagmus test (HGN), or the eye test. The officer will have you stand still and look forward while he moves his finger or other object in front of your eyes. There are many medical and factual defenses to this test.
In the HGN test the officer is looking to see if you can follow his finger with your eyes, whether your eyes track smoothly, and whether your eyes jerk side to side. The HGN test is a medical test that was designed to test for neurological disorders. Medical teaching does not allow any medical professional to evaluate your level of intoxication based on the movement of your eyes. The only place where that is satisfactory is DUI enforcement.
People with astigmatism are not proper test subjects for this test. Neither are people who have ever suffered a concussion, head injury, eye injury, or other neurological disorders. Officers are instructed to note that you have suffered one of these injuries, or have one of these conditions, and administer the test anyway. Officers will often tell you that they will take that into consideration in their evaluation. The problem is that officer’s do not have a medical background, and have no way to consider what impact an injury or disorder has on your ability to properly perform the test.
Other problems in how this test is administered in real life versus how it was administered during the government’s research is that there were no environmental factors that affected the outcome of the test during the government’s testing. It is well established now that flashing lights, passing vehicles, wind, and other environmental factors lead to incorrect test interpretation by officers.
You are not required by Virginia law to perform the Horizontal Gaze Nystagmus test, and should politely decline to do so if the officer asks you to do so. You should never be rude, or argumentative with the officer. You do not have – and should not – justify your refusal to take this field sobriety test to the officer. The more you talk and argue, the more evidence you give that will be used against you.
If you have been stopped or arrested for DUI or any crime, contact Virginia DUI lawyer Bob Keefer right now for a free, no obligation case evaluation.