Evidence piled up quickly that a 28-year-old woman was intoxicated when she rolled her Cadillac off Interstate 70 earlier this month.
She admitted to paramedics that she’d consumed two shots of liquor. Police smelled alcohol on her and noted that her eyes appeared glassy and bloodshot.
And she failed an eye exam that has been administered to drunken driving suspects since the 1990s.
Police officers embrace the test as a reliable way to determine intoxication. But defense lawyers have for decades hotly derided it as “junk science.” Kansas courts never have allowed it as trial evidence.
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And this month, a Missouri appeals court said jurors could hear test results only if police strictly followed federal guidelines in administering the test.
Some Missouri jurisdictions, weary of the courtroom challenges, now are depending less on the eye exam.
None of that controversy was apparent when Officer Lawrence Pollard slipped into a hospital exam room to question the driver whose car had landed in a ditch near the Truman Sports Complex.
“I’m not going to talk with you,” she announced, loud enough for those outside to hear.
She refused to submit to a blood alcohol test, so Pollard, who specializes in drunken driving investigations, asked whether he could administer a brief eye exam. She agreed.
The results, Pollard said, confirmed that she was intoxicated well above the legal limit.
“I usually don’t drink and drive,” the woman said after Pollard handed her a ticket. “I just made a mistake tonight.”
Police officers generally have plenty of evidence from observations of erratic driving and other drunken behavior to make arrests, Pollard said later. But the eye test remains an important tool that he’d like to keep.
“The eyes never lie,” he said.
During a horizontal gaze nystagmus exam, an officer looks into the suspect’s eyes while moving an object, such as a pen, in a slow, horizontal motion in front of the subject’s face. The suspect must follow the pen with his eyes, without moving his head.
The officer watches for an involuntary jerking of the eyes as they follow the object to the extreme periphery of vision.
Such jerks, called nystagmus, can indicate alcohol intoxication, according to about 30 years of federally funded research used to support the HGN test.
The test particularly is effective against habitual drunken drivers, said Capt. Tim Hull of the Missouri Highway Patrol. Such drivers often refuse breath and blood tests and sometimes practice passing other field sobriety tests, such as walking and turning, or standing on one foot.
“Intoxicated individuals cannot control HGN because it is completely involuntary, and they are generally unaware that it is happening,” Hull said.
But its use by police troubles one former prosecutor who now works as a criminal defense lawyer.
The stakes are too high to have police officers performing medical examinations by the side of the road, said Kevin Regan, who once prosecuted Jackson County drunken driving cases involving serious injury or death.
“You’re empowering a police officer to be an eye doctor with woefully insufficient training,” Regan said. “The test is not consistently administered across the board.”
Nystagmus is difficult to spot and interpret, even for medical professionals, said Joseph Waeckerle, a trauma physician who has advised the Kansas City FBI office on medical issues. He has performed HGN and similar concussion testing for decades.
“I’m very pro law enforcement, but in this case I am not at all comfortable with this exam,” Waeckerle said. “There are lots of subtleties.”
The American Optometric Association has endorsed police use of HGN for sobriety testing twice, most recently in 2011. But Karl Citek, an Oregon optometrist who was chairman of the 2011 review committee, said recently that HGN should be used only in combination with other evidence.
The widespread use of dash-cam video has proved a mixed blessing for law enforcement in drunken driving cases, Pollard said.
Though video can capture erratic driving and other intoxicated behavior, it also captures the officers conducting the tests. Police need to realize that defense lawyers and their expert witnesses will watch the video, looking for a mistake in how the eye exam was done.
“That’s where they will come after you,” Pollard said.
A recent opinion from the Missouri Western District Court of Appeals instructed trial judges to deny the admission of HGN test results if officers did not adhere to a detailed 10-step procedure set out in federal training manuals.
The judges recently questioned the test’s scientific validity if officers rush the exam, improperly score it or even hold the pen closer to the suspect’s face than the prescribed 12 to 15 inches.
Writing in the case of Gary Preston Browning Jr., a Kearney, Mo., man arrested in 2007 for driving while intoxicated, Judge Gary D. Witt suggested that some police officers had gotten sloppy.
“(The) error in admitting the HGN test results in Browning’s case sharply illustrates the rampant misunderstand and weaknesses in the administration of the HGN test,” he wrote.
Lawyers applauded the court’s ruling.
“It may put more of a burden on the cops to do the test correctly, and, frankly, that’s a good thing,” said Charles Stinger, who defends clients throughout the area.
Though Missouri courts have recognized HGN tests as scientifically valid for about 20 years, Kansas courts do not permit trial testimony on HGN test results, noted Charles Green, a Kansas DUI lawyer.
“In Kansas, that test is not considered reliable,” Green said.
Still, Kansas police officers can use it to support the reasonable suspicion necessary to ask someone to take a preliminary breath test, the Kansas Supreme Court ruled in 2012.
Prosecutors said the most recent Missouri appeals court ruling is not likely to change how they pursue cases because they, too, have a stake in making certain the exam is performed properly.
But Platte County Prosecutor Eric Zahnd said the rulings are likely to speed a transition already underway in his office to aggressively seek warrants to get blood samples from drunken driving suspects.
“Defense attorneys can attack field sobriety tests, and most importantly the HGN test, endlessly,” Zahnd said. “It’s very difficult to argue about a person’s blood alcohol content.”
Ultimately, the Missouri appeals judges allowed Browning’s drunken driving conviction to stand, even though they had profound concerns with how his HGN tests were performed.
That’s because the arresting officer had a plethora of other evidence proving intoxication, including erratic driving, Browning’s admission he had been drinking and a breath test that showed a blood alcohol content well over the legal limit.
Pollard, who teaches field sobriety testing at the Kansas City Police Academy, said officers always should assume that a suspected impaired driver will decline to cooperate.
“You should be able to make your case with your own observations and your ability to describe it in a narrative,” Pollard said. “Everything else is icing on the cake.”
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