THE HGN Test can not be used to convict a defendant in any capacity of a DWI

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

The Police and the court can not use the “Pen test” (HGN) to  convict a defendant of DWI.  A trial court judge can not use any evidence derived from the HGN as evidence of anything under any “Totality of the Circumstances” evaluation of the evidence.

In this part of the court’s decision the court examined the use by the trial judge and the Law Division Judge’s use of the HGN.  I am not summarizing the court’s rationale because it is direct and to the point.

STATE OF NEW JERSEY,  v. MICHAEL J. O’NEILL, Decided August 26, 2019  On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 27-17.

Turning to the observational proof of defendant’s DWI, we apprehend that an officer’s subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Cryan, 363 N.J. Super. 442, 456-57 (App. Div. 2003) (sustaining DWI conviction based on observations of defendant’s bloodshot eyes, hostility, and strong odor of alcohol); see also State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on officer’s observation of the defendant’s driving without headlights, inability to perform field sobriety tests, combativeness, swaying, and detection of odor of alcohol on the defendant’s breath); Oliveri, 336 N.J. Super. at 251-52 (sustaining DWI conviction based on officer’s observations of watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and defendant’s admission to drinking alcohol earlier in the day).

The Law Division judge correctly observed that the horizontal gaze nystagmus (HGN) test “has not been found to be scientifically reliable as a sole basis” to find defendant guilty of DWI but concluded “there are other factors that the court had at its disposal in order to consider not only the driving but the failure of the field sobriety test, the odor [of alcohol], and so there are other issues to be considered in addition to the HGN [test]. So they look at the totality of the circumstances as a basis.” (emphasis added). Later, the court opined:

The HGN [test] is admissible as long as that is not the sole basis of finding that the person was under the influence. There’s certainly under the totality of the circumstances enough evidence in the record to find the defendant guilty even considering the HGN [test]. So it would be admissible as other evidence within the record to conclude by a totality of the circumstances.

It has long been held that, while the HGN test can be used to establish probable cause for a DWI arrest, it lacks sufficient scientific reliability to warrant admission as evidence of a defendant’s guilt of a DWI offense. State v. Doriguzzi, 334 N.J. Super. 530, 546-47 (App. Div. 2000). Obviously the Law Division judge considered the HGN test as part of the “totality of the circumstances” in finding defendant guilty. We cannot, especially in light of our exclusion of the Alcotest results, deem the admission of the HGN test as harmless error. Ibid. We are therefore constrained to reverse and remand this matter to the Law Division for a trial de novo on the record without consideration of the HGN test.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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