Steve Palmer: All right, here we are. Lawyer Talk off The Record, on the air, coming at you week in, week out with all sorts of content. Today we are dusting off an old series called DUI360. And you can check it out, by the way, the old episodes on DUI360@, uh, lawyerertalkpodcast.com, uh, or wherever you get your normal podcast. They're back there in the archives. In the Annals of DUI Lore, or Lawyer Talk Lore, you will find the DUI360 series. What is DUI360? Well, DUI360 is the idea that we upstairs, when I represent folks charged with DUI, um, we take a 360 degree approach at DUI defense. We don't just do it for the cause of beating DUI cases. And we try to educate people on what they're facing, uh, how they might be able to get out of it, what the consequences, long term of DUI is or consequences are. Uh, and some of that involves sort of the nuts and bolts of DUI defense and what things mean and what they don't mean. Um, and today there's lots I could say about all of these topics, but we're trying to break them down and make them simple, because I like to make things simple. And almost everything I think can be made simple. Uh, we're going to talk about the eye test, the fabled eye test. In my world, we call that the horizontal gaze nystagmus test. This is the test. And the reason this came up, by the way, is I had a client recently call me and I'm representing this individual in court. He's charged with ovi. That's what we call it here in Ohio. And he says, you know, I think I passed the field sobriety test. I think I passed the eye test. And every time I hear that, I sort of, I don't, I don't mock people, of course, but it tells me how misunderstood the eye test is. So the eye test, again, it's called hgn, which stands for horizontal gaze Nystagmus. And anybody who has seen some, if, uh, you just Google hgn, you'll see cops on the side of the road holding a pen out in front of a poor guy on the side of the road who's, uh, been pulled over for dui, and they're running a pen back and forth horizontally, uh, across his gaze. And the reason that I know people don't understand it when they tell me they passed is because it's involuntary. You wouldn't know if you Passed it. Now, here's how this works. Um, they are looking for something called nystagmus. And nystagmus is a generic medical term, I suppose, uh, for a jerking of the eyes. So your eyes, People's eyes flutter, and as they follow the pen, it's jerky, and it's not smooth. Now, there are other things that cause nystagmus. Alcohol is one of them. It has to do with, uh, the fluid in your eyes, et cetera. But, uh, alcohol can cause nystagmus, or being under the influence of alcohol can cause nystagmus. There are other forms of nystagmus. Um, fatigue, uh, too much caffeine. Some, uh, people just have it naturally. Um, if you happen to be an albino, believe it or not, albinos tend to have nystagmus. Uh, so I'm told. Um, so there's other reasons for nystagmus. But the police are trained on horizontal gaze nystagmus. And what they're doing is basically checking for your eyes as they follow the stimulus and how much they jerk. And there's two or three clues they're looking for, or six clues total. But they on both eyes. So they're looking for a lack of smooth m. Pursuit. They pulled a pen out at maximum deviation, meaning as far as you can go and still see the pen. And they'll check for your eyes fluttering there. Um, and then early onset of nystagmus, meaning how soon do your eyes start to jerk? As they get closer to 45 degrees. As the pen gets closer to 45 degrees. Now, uh, the reason I'm bringing this up is because this is a test that you don't know if you passed or didn't pass. You have no control over this. This is a completely involuntary function. So if you happen to look, we're getting close to the holidays. So if Uncle Bob is too drunk at the Thanksgiving dinner, uh, go get Uncle Bob and say, hey, Bob, come up here. Let's check your eyes. And you don't have to be a professional to do this. Hold a pen about 15 inches or so from Uncle Bob's nose and tell him to look straightforward and only move his eyes. And go back and forth very slowly, and you will see a, uh, jerking. Now, if you don't recognize it and you know Bob's drunk, try it on somebody who's not been drinking, and you'll see the difference. Uh, it just happens. And Bob may say, I'm totally sober. I'm fine. I can pass this test. But he can't now, how accurate is it? I think there's something called the National Highway Traffic safety administration, or N.H.T.S.A. we call it. And they claim years ago they did a bunch of testing on this, and it's like 88% accurate if performed correctly by the police. Um, which is a big if. Uh, but, you know, I don't know how much stock I put in that. I don't know how much stock I don't put in that. This is one of those tests, though, that. And this is probably true of all fields of brighter test. They give the police a vocabulary to describe how much or how impaired they think you are. So they can say, look, we did the HGN test on this guy. Uh, it was. We got six of six clues. So therefore, uh, that's a. Those. That's a strong indicator that this gentleman would test above 0.10. Now, uh, that's a whole nother topic. But, uh, when the tests were created, it was, uh, they were designed to determine if somebody would test above 0.10. People sort of rug sweep. The fact that most BACs, uh, now. Or limits now, or 0.08. Nonetheless, the test is still valid. It is still used widely and regularly. Now, here's the other thing you need to know about horizontal gaze nystagmus, other than the fact that you can't tell if you passed it or not, um, in Ohio anyway, you can say no. You can just say no, uh, you do not have to take, uh, the HGN test. You don't have to take the other two standardized tests. Walk and turn one leg. Stand. You can just say no. Now, uh, you can say no to a breath test. And people say, do I take a test or not? That's another DUI360. But rarely do people ask me if I have to take the field sobriety test. You don't. The police don't tell you that, though. It's sort of like a Jedi mind trick. They say, here, come on over here. We're going to do some field sobriety tests. And people just sort of step right into the lion's lair, and, uh, they start taking the test. You can say no to those in Ohio, and there's no consequence to that. Um, likely you're going to get arrested. But, uh, let me just sort of tell you if you think you might not pass or you think, um, you're going to have some trouble with it, don't take the test, meaning if you've had anything to drink, you don't need to take those tests. And it's probably a good thing that you don't, um, because what you're doing is, again, you're giving the police evidence to use against you later. Nonverbal evidence, visual evidence, observational evidence that not only they observe, but is also on their body cameras and their dash cameras. Typically, with a cruiser, there's all sorts of ways I can defend against the HGN test. I can take it apart. I can take apart the science. I can cross examine police, uh, I can point out when they didn't do it correctly. Uh, recently I had one where the police didn't do it right. And I took this guy apart upside and down. But the fact is, I would rather not have to do that. I would rather not have to defend against. I'd rather not have them be able to come into court and then rely on our challenge to the test. I'd rather the jury just never hears it. So, anyway, if you've got any questions about DUI defense or anything else, by the way, check us out at www.lawyertalkpodcast.com. you can send us a question there. Or you can check out, uh, Sense a question in the comments below, I guess, or check us out on the socials and send us a comment there. Or if you happen to need help with a DUI case or an OVI case here in Ohio, that's easy to 614-224-6142. Palmer Legal Defense, right upstairs. I'll be happy to help. So until next time, this is Lawyer Talk, off The Record, on the air.