Because HGN testing is part of NHTSA Standardized Field Sobriety Tests, it is used in all DWI cases. However, the North Carolina Court of Appeals just changed the rules for the State. Spoiler Alert: HGN is back but keep reading anyway.
HGN Testing Now After State v. Godwin
As HGN testing is a recognized, peer-reviewed test, the trial judge ruled the results admissible over objection. Subsequently, the Court of Appeals held that HGN testing requires more than lay testimony. As a result, an expert is required to interpret the test results. However, a judge must admit someone as an expert before they are able to give an expert opinion. Since the lower court never qualified the officer, he could not give expert testimony about HGN. Hence, it is not enough to simply recite NHTSA protocols. Now, prosecutors must go further to qualify officers as expert witnesses. Otherwise, HGN stays out at trial.
So what does all this mean? Because of this case, many Mecklenburg County District Court Judges do not accept officers as experts in HGN testing. Consequently, the officer does not testify about test results. Rather, they describe whether the suspect followed instructions or maintained balance during the test. Also, they can testify about other things a lay person could understand to determine impairment.
DWI Defense After State v. Godwin
While this case is good news for DUI defendants, the ruling is somewhat difficult to follow. For example, how do you separate any one of the three standardized tests? In addition, why is NHTSA certification not sufficient to qualify as an expert? Under the rules, it is not hard to qualify experts in other areas of law. Rather, the standard is normally very low – a witness basically knows more than the jury. Nevertheless, we celebrate a ruling for our side for a change.
Seems like every officer testifies at trial that HGN is something you cannot fake. Furthermore, they swear this test is almost fool-proof. Even after we mention other forms of HGN not related to alcohol, they stand by HGN. And juries respond favorably as this test seems more scientific like the TV shows. Consequently, we are happy to have the State just present “walking a line” and “standing on one leg.” After all, what do these divided attention tests really have to do with driving a car? Without HGN, the State will have a tougher time proving you guilty. In the end, that’s what really matters in a DUI case.
UPDATE: While we all questioned how long this would last, HGN testing is back. After all, it is one of three approved standardized tests by the National Highway Traffic Safety Administration (NHTSA). Rather, those who practice DUI law knew this was just a temporary lapse of judgement. Onward.