See also: INTOXICATION

This test involves moving an object in front of the subject’s face at various agles and observing any twitching ("nystagmus") of the eyes. The officer estimates the angle from the center at which the eye begins to twitch. Twitching which occurs at less than 45 degrees from center indicates intoxication.{footnote}See also 1 R. Erwin Et Al., Defense Of Drunk Driving Cases § 8A.99, pp. 8A-43, 8A-45 (1989) (noting that while jerking is observed in the eyes of one who is sober, when a subject is intoxicated "the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct."){/footnote} The officer also observes how well the subject’s eyes follow an object such as a penlight, and the twiching of the eyes when the subject looks are as far to one side as possible. This method has not been found sufficiently reliable to be admissible in all jurisdictions.{footnote}People v. Dakuras, 172 Ill. App. 3d 865, 527 N.E.2d 163 (2d Dist. 1988) (test inadmissible).{/footnote}

 "Jerk nystagmus . . . is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk or recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates. . . ." The Merck Manual of Diagnosis and Therapy, p. 1980 (14th ed. 1982). For over 20 years, the relationship between nystagmus and alcohol has been recognized by highway safety agencies as a tool to detect those illegally driving under the influence of alcohol. Burns & Moskowitz, Psychophysical Tests for DWI  [***9]   Arrest, U.S. Department of Transportation, Rep. No. DOT‑HS‑802‑424 (1977). Further, the National Highway Traffic Safety Administration (NHTSA) has endorsed the HGN test as the most sensitive in determining alcohol impairment. Schweitz & Snyder, Field Evaluation of a Behavioral Test Battery for DWI, U.S. Department of Transportation, Rep. No. DOT 475 (1983); see also, Turkula, Drug and Alcohol Testing, @ 6.06, pp. 614. HGN testing has been used by law enforcement in each of the 50 states. Seelmeyer, Nystagmus, A Valid DUI Test, Law and Order (July 1985), p. 29. Even the nation’s premier reference manual for the defense of DUI cases recognizes the "strong correlation" between the ingestion of alcohol and the presence of nystagmus. Erwin, Defense of Drunk Driving Cases (3rd ed. 1985), @ 8.15A[3]. The characteristics, theory, and scientific acceptability of HGN testing in relation to DUI cases has been discussed in numerous articles and in numerous judicial opinions. See particularly State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, appendices A & B 182‑184 (Ariz. 1986); State v. Nagel, 30 Ohio App. 3d 80, 506 N.E.2d 285 (Ohio App. 1986); see also, e.g., Barnes, The Effects of Ethyl Alcohol on Visual Pursuit and Suppression of the Vestibulo‑Ocular Reflex, 406 ACTA Otolaryngol Supp., p. 161 (Sweden 1984) (ethyl alcohol disrupted visual   [**808]   pursuit eye movement by increasing number of nystagmic "catch‑up saccades"); Goldberg, Effects and After‑Effects of Alcohol, Tranquilizers and Fatigue on Ocular Phenomena, Alcohol and Road Traffic, p. 123 (1963) (of different types of nystagmus, alcohol gaze nystagmus is the most easily observed); Zyo, Medico‑Legal and Psychiatric Studies on the Alcoholic Intoxicated Offender, 30 Japanese J. of Legal Medicine, No. 3 (1976), p. 169 (recommends use of nystagmus test to determine somatic and mental symptoms of alcohol intoxication, as well as blood alcohol content).

Bibliography

Carper & McCamey, Gaze Nystagmus: Scientific Proof of DUI?, Ill. B.J. 146 (Nov.  1988)
Use of horizontal gaze nystagmus test in impaired driving prosecution, 60 ALR4th 1129