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State v. Bresson5/30/1990
ALICE ROBIE RESNICK, J.
The HGN test is used by an increasing number of law enforcement agencies across the country as an additional means to determine probable cause as to whether a person is operating a vehicle under the influence of alcoholsSee, generally, 1 Erwin, Defense of Drunk Driving Cases (3 Ed. 1989), Section 8.26; Annotation (1988), 60 A.L.R. 4th 1129, 1131; Goding & Dobie, Gaze Nystagmus and Blood Alcohol (July 1986), 96 Laryngoscope 713; see, also, Belton, Lateral Nystagmus: A Specific Diagnostic Sign of Ethyl Alcohol Intoxication (1987), 100 New Zealand Med. J. 534. "Nystagmus" has been defined as a "rhythmic to-and-fro oscillation of the eyes[,]" or as an involuntary jerking of the eyeball. Walsh, Neuro-Ophthalmology: Clinical Signs and Symptoms (1978) 239; The Merck Manual of Diagnosis and Therapy (15 Ed. 1987) 1359; Dorland's Illustrated Medical Dictionary (26 Ed. 1981) 910. "Horizontal gaze nystagmus" refers to a jerking of the eyes as they gaze, or look, to one side. See Erwin, supra, at 8-51. It has been shown that there is a correlation between blood-alcohol concentration ("BAC") and nystagmus. See (Goding & Dobie, supra; Belton, supra; Wilkinson, Kime & Purnell, Alcohol and Human Eye Movement (1974), 97 Brain 785; Development and Field Test of Psychophysical Tests for DWI Arrest (Mar. 1981), U.S. Department of Transportation, National Highway Traffic Safety Administration; Good & Augsburger, Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing (1986), 63 Am. J. Optometry & Physiological Optics 467.
According to a test manual devised by the United States Department of Transportation for use by law enforcement agencies, the HGN test is the single most accurate field test to use in determining whether a person is alcohol impaired. U.S. Department of Transportation, National Highway Safety Administration, Improved Sobriety Testing (1984) 4. Although many people will have some nystagmusas their eyes move to an extreme side, as people become intoxicated, the jerking becomes not only more frequent and pronounced but it also occurs at an earlier angle. See Erwin, supra, at 8-51.
The HGN test is relatively easy to administer. The driver taking the HGN test usually is asked to focus on a "stimulus" (such as a pen) held in an officer's hand at the driver's eye level approximately six to eight inches away. The officer will then move the stimulus gradually out of the driver's field of vision toward the driver's ear. Because it has been shown that the onset of the angle of nystagmus at less than forty-five degrees indicates the presence of alcohol, the officer watches each eye to determine whether nystagmus occurs at an angle less than forty-five degrees. See State v. Superior Court (1986), 149 Ariz. 269, 271, 718 P. 2d 171, 173; Development and Field Test of Psychophysical Tests for DWI Arrests, supra. Each eye is tested separately, although the suspect performs the HGN test binocularly. See Good & Augsburger, supra, at 469.
According to the test manual devised by the United States Department of Transportation, an officer administering the HGN test observes the driver's eyes to detect the following three signs of intoxication:
"(1) The jerking of the eyes occurs much sooner. That is, the more intoxicated a person becomes, the less that he has to move his eyes to the side in order for the jerking to occur.
"(2) If you have a suspect move his eyes as far to the side as possible, you can estimate in a general way the extent of intoxication. The greater the alcohol impairment, the more distinct the nystagmus will be in the extreme gaze position.
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