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What Is HGN and Is It Admissible?

HGN is for Horizontal Gaze Nystagmus, a test which can ostensibly help determine whether a person is impaired or otherwise under the influence of alcohol. When a person is stopped for suspicion of DUI, the officer may use any number of field sobriety tests (FST) to aid in the determination of impairment.  The accused has an absolute right to refuse any or all of the field sobriety tests.  Those tests often include: alphabet, number count (often backwards), finger touch/count, one leg stand, walk and turn. Is HGN admissible?  Great question.  Kentucky law is currently unclear on this issue.  In Kentucky appellate decision, Commonwealth v. Rhodes, 949 S.W.2d 621, 623 (Ky. Ct. App. 1996) the HGN test results were admitted due to Defendant's failure to object. There are numerous counties in Northern Kentucky that do not allow the HGN as a matter of course, those include: Boone, Kenton and Campbell.  Other counties throughout the state vary on the use and admissibility of the HGN test and results in a DUI trial.  This issue has recently been tried with competing experts in Owen County and the two judges (Thomas Funk and Elizabeth Chandler) for Owen, Grant and Carroll counties intend to issue a joint decision.  The decision will likely come out later this month and may be appealed for a more comprehensive appellate court decision which could affect the entire state. This is what a HGN test looks like:

APPENDIX B

ILLUSTRATIONS OF THE HGN TEST

Much care should be given to avoid the HGN test and results of being admitted into evidence.  An experienced witness can nearly convince a jury or judge that it is proof positive of intoxication and impairment.  An experienced DUI defense attorney can often convince a judge or jury that it is nothing short of voodoo.  Study of the HGN, administration and testing procedures, and admissibility is essential in defending a DUI case.

Under Ohio law, the HGN is admissible.  HGN test is objective in nature and does not require an expert interpretation. pursuant to State v. Nagel, 506 N.E.2d 285, 286 (Ohio Ct. App. 1986).  Additionally, the Court determined that HGN was a reliable indicator of intoxication without specifically ruling on whether HGN meets Frye or some other standard of admissibility in the case of State v. Bresson, 554 N.E.2d 1330, 1334 (Ohio 1990).

If you have been charged with a DUI, hire an attorney with criminal defense and DUI experience.  For consultation in Northern Kentucky or Cincinnati, contact the Bouldin Law Firm at mwbouldin2@gmail.com or call 859-581-6453.  Call 581-MIKE.

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