The Washington State Court of Appeals Division III recently decided a DUI case involving horizontal gaze nystagmus (HGN) testing and what a police officer can testify to at trial. Essentially the Court found the defendant was denied a fair trial when the arresting officer who was a drug recognition expert testified that based on the HGN testing he administered there was “no doubt” the defendant was impaired by alcohol. To learn more continue reading…
Washington case law is pretty established on the admissibility of HGN evidence in a DUI trial. Typically law enforcement is only allowed to testify the HGN testing that was administered at the scene of the DUI arrest showed the presence of alcohol in the subject’s scene. However in some cases when the law enforcement officer is a drug recognition expert some Prosecutors believe this allows the law enforcement officer to testify to more than just the typical “consumption” and “alcohol was in the system” which is normally allowed.
In the Division III case, it sounds like the Prosecutor took some liberties with the police officer’s testimony because he was a drug recognition expert. In fact, on direct the Prosecutor asked the police officer if based on the HGN test alone did he form an opinion as to whether the defendant’s ability to drive was impaired. The defense counsel objected but was overruled by the Judge. The police officer then went on to say “Absolutely, there was no doubt he was impaired.”
In what I believe was a correct ruling and analysis of current case law, the Division III court held the Prosecutors question not only was designed to elicit a person’s belief from the officer about the impairment, and the officer’s answer overstated the “exactness” of the HGN by saying “absolutely” and “no doubt.”
Now there was some other issues that were raised on appeal but for the purposes of this blog, the HGN issue was the only one I wanted to discuss. Hopefully, this ruling will prevent some Prosecutors from trying to elicit testimony about the HGN test and how it correlates to specific alcohol levels or levels of impairment. If you want to check out the case it’s State v. Quaale, Division III.
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About the author: Matthew Leyba is a DUI Lawyer in Seattle, WA. His practice focuses on representing people charged with DUI offenses. He is rated as a Top DUI lawyer by Avvo.com, and was recently named a Rising Star among Seattle DUI lawyers by Seattle Met Magazine.