Defense Strategies for HGN and Walk-and-Turn Test Results in Virginia
Below is an excerpt from an interview with Virginia DUI lawyer Thomas Soldan.
Challenging Results of Horizontal Gaze Nystagmus Test
Thomas Soldan: There is a certain percentage of the population that is always going to fail the HGN test. Most of them don’t know that they’re going to fail it before they even take it because it has to do with certain eye conditions and things that are potentially not known about by the person. There are certain things that I look for when deciding whether or not I think it was a reliable and accurately administered test according to the NHTSA standard. For example, I look at whether or not the officer and the tester were eye to eye. Oftentimes, officers administer this test while the driver is still sitting in their vehicle, which is inappropriate. The standards clearly say that the person being tested and the person administering the test should be eye to eye. I also look at what stimuli they used, meaning what the eye is supposed to follow, such as a pen, a flashlight, or the officer’s finger. In addition, I want to know how many revolutions they did, the pace of the test, and if there’s a video. Oftentimes, what the officer says they did in the field sobriety tests and what actually occurred may be different, for example if it’s a new officer or if they were trying to do a couple of different things at once. For officer safety, they typically do not write on a notepad actively during the field sobriety tests. They usually try to keep an eye on the person that the test is being administered to and make sure that everyone is in a safe situation. Therefore, they make mental notes or shorthand notes and then transfer those to a larger police report later. Oftentimes, the officers don’t have the benefit of a dash cam video for finalizing their report. Ideally, I try to obtain a video from a dash cam or a body camera that the officer is wearing on their person in order to compare that with the police report. I see if there are any discrepancies in how the tests were explained, how they were performed, or how they were interpreted.
Challenging Results of Walk-and-Turn Test
Thomas Soldan: I look for whether or not the person followed the instructions from the very beginning. That is a huge factor. A lot of the field sobriety tests look at the accused person’s ability to follow instructions, the nine-step Walk-and-Turn in particular. I have to look at whether or not the person walked heel-to-toe for each step, whether or not they swayed, whether or not they were able to keep their balance, and whether or not their steps were consistent. Oftentimes, the law enforcement will say that the person was unable to touch their feet heel-to-toe on their steps. If they were consistently unable to touch heel-to-toe, or if they have the same small amount between each steps while walking in a straight line, counting aloud, and keeping their arms to their sides, that is something that should be weighted appropriately. I also look for certain signals by the law enforcement officers that I have learned through my years of practice. For example, it is very rare that an officer will admit a Walk-and-Turn test was performed without clues, but a general statement that they “failed to touch heel to toe” or “failure to turn properly,” give me clues that the test may not have been convincing. I also look for any signs of impairment unique to the Walk-and-Turn test, such as using arms for balance or stumbling. These are things that a fact-finder, in particular a prospective juror, would readily identify with impairment, so I am particularly conscious of these in my analysis. Specifically in the Walk-and-Turn test, certain indications of impairment are commonly weighted differently than others.