Horizontal Gaze Nystagmus (“HGN”) is a frequently used field sobriety test by police officers in their investigation of a potential DUI driver. It is often referred to as the “follow the pen with your eyes” test. Generally, the officer will ask the driver being investigated to stand perfectly still and follow the police officer’s finger or pen to the left and right several times. The officer is basically looking for three clues: (1) whether the eye can smoothly follow the pen (2) whether there is a distinct jerking at maximum deviation and (3) if the actual onset of the jerking is within 45’ of center. Each of these clues can occur both to the left and to the right for a total of six clues and if the officer can identify four or more clues then the officer will generally conclude that the driver has been impaired by alcohol. Even though this test is purported to be a scientific test for alcohol impairment, it is far from it.

Unfortunately, as noted by a leading Santa Rosa DUI lawyer, the major problem with the test is that the police officer is required to conduct these tests on the side of the road and there are generally so many distractions that the test is not administered correctly. The positioning and height of the pen, the distance of the pen from the subject’s eyes, the timing of the pen movement from left to right and right to left, etc. are all extremely precise requirements which are not adhered to under normal DUI investigation circumstances. Lawyers who defend DUI cases should be aware of the specific requirements of the test and object to the admission of the test and/or its result when the evidence is clear that the test was not conducted correctly. In addition, since this test is proffered as a scientific test, objections should be made to its admissibility without a proper evidentiary foundation.

In addition to the foregoing problems, Santa Rosa criminal attorneys have found over the years that, in many cases, the officers who conduct the tests are completely unaware of the basis for the test, do not understand what “nystagmus” really is, do not understand what causes “nystagmus” and are unable to explain how alcohol causes an involuntary jerking of the eyes.

In addition, there are numerous medical causes of “nystagmus” that are completely unrelated to alcohol. In the case of Schultz v. State, 665 A.2d 60, 77, thirty-eight different causes were identified including cold remedies, caffeine, lack of sleep, ear problems, influenza, vertigo, arterial sclerosis, motion sickness, sunstroke, eye stain, eye muscle fatigue, glaucoma, excessive exposure to nicotine, aspirin, circadian rhythms, heredity, diet, exposure to solvents, etc. A knowledgeable Santa Rosa DUI attorney should be all aware of the potential causes of “nystagmus” and be certain to discuss these matters with their client in the process of defending a DUI. Rest assured, a police officer will not be aware of the other causes of “nystagmus” and certainly will not discuss this with someone being investigated for a DUI but rather simply conclude the “nystagmus” is caused by alcohol.

Finally, there are 47 different types of “nystagmus” that can be caused in individuals. See Dr. L.F. Dell Osso, “Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia 3”, Current Neuro-Opthamology 147 (1999). The ability of an investigating officer to segregate and identify the precise cause of “nystagmus” is impossible. Rather, they simply assume and state that the perceived “nystagmus” is a result of alcohol impairment because they are simply insufficiently trained and unable to establish the actual cause of the “nystagmus”, thereby rendering the correlation of “nystagmus” to alcohol impairment as meaningless. It is a guess and nothing more.

Anyone who is considering retaining a Santa Rosa DUI attorney to represent them in a DUI matter must make certain that their attorney is familiar with the science that is involved in a DUI defense. This particular defense is relevant to both motions to suppress certain evidence so that the “nystagmus” cannot be used at trial but also to suppress evidence in a motion to determine whether or not the police officer constitutionally acquired enough facts to arrest the defendant. For more information about California DUI issues, click here.

Prior the recent United States Supreme Court decision, Missouri v. McNeely, police officers did not even have to try to get a warrant before forcing people to take blood tests if they didn’t want to. Their longstanding justification for this act was that they did not want to wait to contact the judge and explain their constitutional basis for a warrant request because the alcohol in the person’s bloodstream was dissipating or being metabolized. For more information about California search and seizure issues, click here. The Court has now recognized that if an emergency exists which justifies not applying for a warrant, it must be determined on a case by case basis. Recognizing that time always transpires even while a suspect is being brought from the arrest scene to a blood drawing facility, the Court is now going to require police to obtain a warrant for a blood sample if it can be reasonably obtained.

Most Santa Rosa DUI attorneys will advise their clients to take a blood test rather than refuse it because the consequences of a refusal are severe compared to the benefits of the police not getting a chemical result. In addition, as noted by one Santa Rosa DUI lawyer, in his experience the description of the suspect and his/her behavior is curiously much worse in arrest reports where a suspected DUI driver refuses to take a breath or blood test. For more information about California DUI issues, click here.

The Court has basically ruled that if there is time to secure a warrant before blood is drawn, the police must exercise efforts to get one. If a police officer reasonably concludes that there is not sufficient time to apply for a warrant and receive one or he applies for one but does not receive a response, he may then force a blood test without a warrant. The Court has acknowledged in Missouri v. McNeely that situations will occur where anticipated delays in applying for a warrant will justify the taking of a blood test without acquiring a warrant. It is important to note that about half of the states already require warrants for blood draws which is different than California’s current process and they have not experienced any unusual difficulty in doing so. Justice Sotomayor, in speaking about the Court’s concern with the Fourth Amendment’s constitutional protection, said that this decision complies with “our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.”

Sometimes the Supreme Court gets it right. In this case, the police, although not invited, were on the front porch of the defendant’s house and brought a dog along who was trained to detect drugs. The dog “alerted” to the presence of drugs and the police then used this information to get a search warrant to enter the house.

As any reputable Eureka criminal defense lawyer will explain, simply having the dog present constitutes a search. A drug-sniffing dog is present for no reason other than as a tool for the police to look for drugs. For more information about California drug cases, click here. Fortunately, the Supreme Court decided that using a dog did actually constitute a search. The Fourth Amendment of the United States Constitution prevents the government from unreasonable intrusion into your home. This protection stems from pre-Revolutionary War days when British soldiers were allowed to enter anyone’s home without notice or cause.

The Court held that a resident of a home has a right to retreat into their own home and be free of this type of intrusion and the protection that is afford by the Constitution would be of practically no value if the government could come onto your porch, side yard or curtilage (the area immediately around a home) and have a drug dog sniff for drugs. That area is constitutionally protected area and bringing a drug-sniffing dog into that area without implied or actual consent of the resident or other justification is unconstitutional. No one can be reasonably expected to extend a customary invitation to law enforcement to enter their property and explore the area immediately around a home.

In short, the police conducted an illegal search when they brought their drug dog onto the porch. Using that information at a later point in time to try to get a search warrant was too late. They had already broken the law! For more information about California search and seizure issues, click here.

One of the more common problems our Santa Rosa clients encounter is coming from another state on vacation, for a business meeting, a wedding, etc., and getting a DUI in California and then returning to their home state. Inevitably, they will receive a letter from DMV indicating that a hold will be placed on their license and it will continue to be suspended until such time as they complete a First Offender or Multiple Offender DUI program in California.

A different scenario occurs when a person lives in California and gets a DUI here but then moves out of state and completes a DUI program in another state but the program has not been approved by DMV. DMV does not accept completion of a DUI program in another state. The court may accept an out of state program to satisfy the conditions of probation but not DMV.

An experienced Santa Rosa DUI attorney can help you in this regard, especially if you have moved to another state from California and there is a hold on your license from the State of California. A Santa Rosa DUI lawyer can acquire a DUI school waiver for you which allows someone who lives in another state to drive in California. This waiver will then prevent the out of state driver from acquiring a California license for three years after the waiver is filed. This waiver is also a once in a lifetime waiver but it will remove the hold on the California license. An SR-22 insurance form may also have to be on file with DMV. If an out of state driver was to accomplish this process and then return to California within three years of acquiring the waiver, the correct California DUI program would then have to be completed.

For more information about California DMV issues, click here.