38 Reasons (Other Than Alcohol) Why You Could Fail The DUI Eye Test In CA

For misdemeanor or felony DUI charges where the prosecutor has evidence that the officer looked at the driver's eyes and that meant something.

William Leroy Schultz Sr. was convicted in a DUI jury trial for driving under the influence, speeding, and driving with excessive alcohol in his blood. He appealed the conviction on the grounds the trial judge unfairly admitted the police officer's testimony about the results of the horizontal gaze nystagmus test. His DUI criminal defense lawyer objected to the cop testifying about the HGN test and results for lack of foundation but was overruled.

The court of appeals ruled the police officer's HGN testimony should not have been allowed. Mr. Schultz's convictions for driving under the influence and driving with an excessive amount of alcohol in his blood were reversed. The court of appeals agreed with the DUI lawyer about the HGN evidence.

The points made in this case apply no matter what jurisdiction you are in because in every state the cop does some form of HGN test.

The court of appeals said the level of competency among officers who give the HGN test is wide-ranging. The NHTSA manual defines the "well-trained technician" as someone who studies and properly adheres to the NHTSA manuals. In all probability, not every police officer would meet this standard. Therefore, this comment suggests that certification for administering the HGN test should not only guarantee that the officer will know how to administer the test and know what to look for, but that the officer will know that there are many other causes of HGN other than alcohol.

The court said that cases and scientific literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of horizontal gaze 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. Schultz v. State, 1995 Md. App. LEXIS 151, 60-61 (Md. Ct. Spec. App. 1995)