“The officer said I failed the eye test.  Is my case doomed?”

If you have been arrested for OVI and submitted to the “eye test” administered by a police officer, your case is not doomed.  There are a number of legal defenses you should at least explore with a DUI attorney, including whether the officer was properly trained and whether the officer administered the test properly.

What is the “eye test” or “pen test”?  

When someone is stopped for suspicion of OVI, the first test the officer will often administer is the eye test.

The officer will ask tell the person to stand with their feet together, hands at their sides, hold their head still, and to follow the a pen or light with their eyes only.

The officer then moves the pen or light slowly from side to side and looks closely at each eye as it moves.

What are officers looking for during the eye test?

They are looking for primarily for involuntary jerking of the eyes as the eye moves side to size, called “Horizontal Gaze Nystagmus” or “HGN”.

They are looking for several “clues” on each eye, such as whether the eye jerks at a certain angle.  Studies show that as a person’s blood alcohol concentration increases, their eyes will start to jerk or bounce sooner when they are following a pen or light side to side. (NHSTA Manual).

They may also look for other thing, such as dilated pupils, which can indicate marijuana use or other stimulant.

Possible Defenses to a “Failed” Eye Test (HGN Test)

Even if the officer has noted that you “failed” the HGN test, there are nonetheless a number of possible defenses that could be raised, including:

  • Did the officer ask the person to remove glasses or sunglasses?
  • Did the officer provide clear instructions, including that the person should stand still and look at the pen or light only with their eyes (and not move their head)?  If the head is not still during the test, it can affect the officer’s ability to measure nystagmus at a certain angle.
  • Was the light or pen positioned 12-15 inches in front of the person’s nose, slightly above eye level?
  • Did the officer check for equal tracking of the eyes, which could indicate a medical issue that may affect the test results?
  • Are there any other medical issues that could cause nystagmus, even if alcohol is not involved?
  • Was the initial stop constitutional?  Were there any other improper statements or actions related to the stop or the arrest?

If you have been charged with OVI and submitted to the eye test, talk to an attorney about your options.  There may be additional defenses to the charges that you should explore with an attorney.

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