![]() Implicit in the latter argument is the claim that HGN is a "new scientific technique," which must therefore meet the test of " 'general acceptance in the particular field in which it belongs.' " (People v. From these reactions, and relying on his "training and experience," the deputy formed the opinion that defendant was under the influence of alcohol.ĭefendant argues the testimony was improperly admitted because the deputy was a lay witness who may not give an opinion on blood-alcohol level and because the HGN test does not enjoy general acceptance in the scientific community. The deputy then testified to the results of the test: defendant's eye movement as he followed the pen was jerky, and there was further bouncing in the eye at the extremes of movement. The court agreed that Deputy Ringen could not testify to a particular level of blood alcohol on the basis of the nystagmus test, and could not attempt to explain its physiological basis, but ruled he could testify that he observed the phenomenon in defendant and that he has frequently observed the same phenomenon in people known to be under the influence of alcohol. The deputy then watches to see if the subject's eyes track the pen smoothly or if, on the contrary, they "bounce" as they move from side to side.ĭefendant objected to any testimony by Deputy Ringen as to the results of the nystagmus test on the ground that it required scientific expertise which the deputy did not have. To administer the test he directs the subject to hold his or her head stationary and to follow a pen with his or her eyes. He administers it every time he stops a driver or pedestrian he believes may be under the influence of alcohol or drugs, and has found through that experience that the test is an effective method of determining if someone is under the influence of alcohol. 10.ĭeputy Ringen testified that he had received approximately 13 hours' training in administration and interpretation of the nystagmus test. A sample of defendant's blood taken at 1:30 a.m. 1 On the basis of this performance Deputy Ringen concluded defendant was impaired by alcohol intoxication. Deputy Ringen administered five field sobriety tests, four of which defendant failed: counting forward and backward on the fingers of one hand (failed) standing balance on both feet together (passed) heel-to-toe balance (failed) one-legged balance (failed) and "eye-gaze nystagmus" (failed).fn. There was a strong smell of alcohol on defendant's breath and his eyes were bloodshot. Sheriff's Deputies Houlihan and Ringen stopped defendant's vehicle at about 12:15 a.m. Murphy (Iowa 1990) 451 N.W.2d 154, 156.) Some investigators believe alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction. 504.) An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. He contends the trial court erred by allowing the arresting officer to testify as to the results of a horizontal gaze nystagmus test, and by allowing the prosecution to reopen its case on the prior violations after submission to the jury. (a)(1)), and pleaded no contest to sexual battery (Pen. 2743 Ojeda was convicted by a jury of assault with a deadly weapon (Pen. 10 or higher, with three prior violations within seven years (Veh. ![]() 2746 Pedro Cortez Ojeda was convicted, in a jury trial, of felony driving under the influence of alcohol, and of driving with a blood alcohol level of. Grove and Morris Beatus, Deputy Attorneys General, for Plaintiff and Respondent. Sugiyama, Assistant Attorney General, Christopher W. Iglehart, Chief Assistant Attorney General, John H. Van de Kamp, Attorney General, Richard B. Leo Paoli, under appointment by the Court of Appeal, for Defendant and Appellant. ![]() Separate concurring opinion by Haning, J.) PEDRO CORTEZ OJEDA, Defendant and Appellant.
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