As an Arizona DUI attorney, my clients are often puzzled by the arresting officer’s request to gaze deep into their eyes. After all, this is Arizona. “Blood shot and watery” eyes can be simply a sign of allergy season. Arizona DUI cops however, are peering into drivers’ eyes in the hopes of finding something a little more incriminating than a need for over-the-counter medication.
First off, let me emphasize that Arizona law requires a suspected impaired driver to submit to any breath, blood or urine tests that might be requested by the police. Refuse to submit to a requested chemical test and there will be harsh consequences.
Arizona law does not, however, compel a suspected impaired driver to submit to any field sobriety tests. All field sobriety tests, including any tests involving the eyes, must be 100% voluntary. There are no legal ramifications for declining to participate in any field sobriety test.
In retrospect, many of my DUI clients realize that their agreement to perform field sobriety tests was made in haste and ill-advised. Most blame their agreeable nature on their parents. After all, we were all taught as kids to always cooperate with the police. Many of my clients have the mistaken belief that by cooperating, the officer will score their tests more favorably. Then, of course, there are those clients that are so intoxicated at the time of their arrest that the alcohol in their body simply prevents their brain from realizing that their body is, in fact, impaired.
The reality is that DUI officers never score cooperation as a sign of sober driving. And contrary to popular belief, field sobriety tests are never graded pass/fail by the officer. Based on their training, DUI cops are looking for tiny clues of impairment. This is because the legal standard for DUI in Arizona is not “fall down drunk” but impaired to the “slightest degree.” The simple truth is that the more tests you agree to perform, the more indicators of impairment the officer will invariably observe.
This is also true of field sobriety tests involving the eyes – such as the horizontal gaze nystagmus test (HGN). Nystagmus is an involuntary jerking or bouncing of the eyeball. In the impaired driving context, alcohol consumption can hinder the ability of the brain to correctly control eye muscles, thereby causing the eye to jerk or bounce when a person looks to the side without moving his or her head. HGN involves observation of the suspect’s pupil as it follows a moving object (usually a pen or small flashlight), noting for each eye the:
lack of smooth pursuit,
distinct and sustained nystagmus at maximum deviation, and
the onset of nystagmus prior to 45 degrees.
While the science behind HGN can tend to overly impress some jurors, the Arizona Supreme Court has declared that:
The officer may not testify regarding accuracy in estimating BAC from the [HGN] test, nor may the officer estimate whether BAC was above or below .10%. The officer’s testimony is limited to describing the results of the [HGN] test and explaining that, based on the officer’s experience, the results indicated a neurological impairment, one cause of which could be alcohol intoxication.
State ex. rel Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 517, 799 P.2d 855, 858 (1990) (en banc). To Read Click Here
Whenever a DUI arrest has been based totally or in part on HGN, it is imperative that you discuss your case with an experienced DUI attorney. Some officers that conduct HGN have never been properly trained and certified. Even when certified, many officers do not accurately follow the procedures they were taught for administering the HGN test. These, and other reasons, could result in your HGN test being kept from the jury.