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DUI eye test called into question by Illinois court ruling

Posted October 08, 2007 11:00 pm

Bruce Rushton

The eyes don't lie.

That's the principle behind horizontal gaze nystagmus testing, which has long been considered the most reliable way, short of a blood or breath test, for a police officer to determine whether a driver has been drinking.

But the state Supreme Court has dealt a potentially serious blow to HGN testing with a recent decision stating that such tests are not presumed scientifically valid in Illinois.

The test sounds simple: A police officer places a pen about 10 inches from a person's nose and moves it from one side to the other, telling the person to watch the pen without moving his or her head. Jerky pupils can indicate that a person has been drinking.

The decision places Illinois on a small list of states where the admissibility of HGN tests in DUI prosecutions has not been decided. According to a 2002 federal court decision that lists the status of the law in 43 states, HGN tests are not admissible in at least three, including Kansas, Mississippi and Pennsylvania. In most others, courts have decided that juries can hear the results of HGN tests.

The National Highway Traffic Safety Administration says HGN tests have a 77 percent accuracy rate in identifying drunken drivers, making such tests the most reliable roadside test for drunkenness.

Plenty of defense attorneys disagree, noting that a number of things ranging from head trauma to nicotine to motion sickness have been shown to cause jerky pupils.

Writing that "HGN testing appears to have as many critics as it does champions," the state Supreme Court on Sept. 20 sent a Peoria County case back to the trial court. The accuracy of HGN tests is sufficiently in dispute that the trial court must hold a hearing to determine whether the tests are scientifically valid, something that has never been done in Illinois, the high court ruled in a unanimous decision.

The last such hearing in the United States was in Washington state in 2000, the court wrote.

Sangamon County State's Attorney John Schmidt said he's not overly concerned about the Supreme Court decision. He said he can't recall a case that hinged on the result of an HGN test.

"I don't foresee any impact in the prosecution of DUI cases," Schmidt said. "You've got to keep in mind, the HGN test is just one piece of evidence."

John Sharp, a Springfield defense lawyer who specializes in DUI cases, thinks the ruling will require prosecutors to hold hearings before introducing HGN evidence. As a result, some prosecutors might decide not to use HGN testimony, said Sharp.

He estimates HGN test results are used as evidence in about half of the DUI cases he handles.

Sharp also said HGN evidence is less potent than videos of defendants trying to walk straight lines or stand on one leg.

"That's much more significant than an officer passing a pen in front of someone's eyes, and you can't even see the pen," Sharp said.

In the Peoria County case, Joanne McKown was convicted of multiple counts of DUI and reckless driving after she hit three motorcyclists in June 2002. Having suffered a broken toe, she could not perform other sobriety tests, such as standing on one leg or walking heel-to-toe.

A sheriff's deputy who administered an HGN test 90 minutes after the accident said she failed. After McKown refused to give blood voluntarily, police got a search warrant and drew blood 6 1/2 hours after the accident. Tests showed no alcohol in her bloodstream.

The Illinois decision is drawing nationwide attention from DUI defense attorneys.

"It has this aura of science around it," said George Bianchi, a Seattle attorney who is a regent for the National College for DUI Defense, a group of lawyers who specialize in drunken-driving cases. "That's why it needs to be looked at more thoroughly as to whether it should be admitted.

"Sure, it's a good tool. But what can it be used for, and how can it be used?"

Bruce Rushton can be reached at (217) 788-1542 or bruce.rushton@sj-r.com.

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