Horizontal Gaze Nystagmus (“the eye test”)

Horizontal Gaze Nystagmus

The Horizontal Gaze Nystagmus (HGN) is commonly known as the “eye test.”  The name of the test can be divided into three parts:  1) Horizontal – the eye travels from side to side. 2) Gaze – to look steadily or intently at something  and 3) Nystagmus – the rhythmic back and forth oscillation of the eyeball that occurs when the eyeball that occurs when there is a disturbance of the inner ear system or the oculomotor of the eye.

Nystagmus is an involuntary motion, meaning the person exhibiting nystagmus cannot control or is even aware of it.

The procedure for the officer to check the possible impaired driver for Nystagmus is outlined below.  It should be noted that some officers perform this test while the driver is still in his vehicle, but this test is invalid because the driver’s head is by definition not straight.

1)             Check for eyeglasses

2)             Verbal instructions to place his hands on his cheeks and to follow his pen or other item without moving his head from side to side.

3)             The officer places his pen directly in front of the driver’s eyes and approximately 12-15 inches away.

4)             The officer should watch the eyes for movement.

5)             In some cases, there will be no Smooth Pursuit of the eyes.

6)             In some cases, there will be distinct and sustained nystagmus at maximum deviation (holding the pen so the driver sees it as far right or left as possible).

7)             In some cases, the officers will observe nystagmus prior to 45 degrees on either side (when 90 degrees is looking straight forward.

8)             The officer will then total the cues.

 Test Interpretation

 The officer should look for three cues of nystagmus in each eye (total of six cues).

1)             The eye cannot follow a moving object smoothly.

2)             Nystagmus (or jerking) is distinct and sustained when the eye is held at maximum deviation for a minimum of four seconds.

3)             Then angle of onset of nystagmus is prior to 45 degrees.

Based on the original research, if the officer observes four or more cues, it is likely that the driver’s Blood alcohol content is above .08.

There are a number of causes of nystagmus that has nothing to do with alcohol.  A complete list can be obtained from the literature but they include influenza, vertigo, epilepsy, measles, muscular dystrophy, brain hemorrhage and the use of PCP.  Additionally, conditions such as hypertension, motion sickness, sunstroke, eyestrain and glaucoma may result in gaze nystagmus.

Positive cues for nystagmus alone may result in evidence for the case but the driver (and officer) should realize that there are many other reasons for nystagmus.

Youtube Video for HGN Test:


DUI – Our Perspective

As former police officers experienced in traffic law and its enforcement, we have a unique perspective while defending impaired drivers.  This document and others should not lead one to believe we encourage impaired driving.   This is to educate the driver about his or her case.

The driver either before or after arrest should note the following.

The observation of the operation of the car, the removal of the driver’s license from a wallet, the smells emanating from a driver’s breath, the condition of the inside of the vehicle, the exiting from the vehicle by the driver, the answering of questions, the field sobriety tests (FST), the answering of standardized questions, and finally the  breath, blood or urine tests all are for one reason:

The collection of evidence for the Detection, Apprehension and Prosecution of a DUI offender.

The driver should realize that all actions by the driver are being observed and recorded and will be used later at trial.  There is nothing asked or done which is unimportant or will not be recorded.  We have seen cases in which the impaired driver argues with the police officer or makes insulting remarks.   Those remarks are recorded and may convince a judge or jury that the driver is impaired, even when there were previously questions about the case against the driver.

What does this tell the driver?  He should refrain from unnecessary conversation that might assist the officer’s case against him.

Various DUI Field Sobriety Tests have been used by officers over the years.  Usually they were unsophisticated, but generally accepted by the Courts.  They included saying the alphabet, picking up coins, and walking a straight line.

In the 1980’s the National Highway Traffic Safety Administration (NHTSA) standardized field sobriety tests.  Most police agencies in the Dayton area comply with some or most of the FSTs advanced by NHTSA.

Whatever tests are administered, it should be realized that they are voluntary and not mandatory.  We have urged clients to have a general idea of how much they have had to drink before driving.  If the driver feels impaired to any degree, he should politely refuse to submit to FSTs.  Remember that FSTs are generally to collect evidence for a prosecution and the officer will probably not release you after the FSTs.

You should also realize that if you refuse to submit to the FSTs you will probably be arrested but in most cases, the officer’s mind was made up when he first asked you to step from the car.

Ohio Masonic Home

The Ohio Masonic Home elects new Board Chair

The Board of Trustees of The Ohio Masonic Home (OMH) elected Terry W. Posey as Board Chair effective April 1, 2012.

Elected by unanimous vote, Posey accepted the position and expressed his gratitude for the faith in him to conduct and lead this historic organization. He has served on the parent board of OMH, the Springfield Masonic Community board, the OMH compensation committee and the search committee that brought current Chief Executive Officer Tom Stofac to OMH.

Terry worked on the Dayton police force as a Patrol Officer, Detective, and Police Sergeant from 1968 to 1987, during which time he received the Medal of Valor, the highest honor awarded a living police officer. He is a graduate of the University of Dayton magna cum laude with a Bachelor of Science Degree in Psychology and Criminal Justice and of The Capital University Law School earning a Juris Doctor cum laude. Currently, he is a trial attorney in private practice with the firm of Posey and Caspar of Dayton Ohio.

“We are pleased to have someone with Terry’s experience lead our Parent Board,” said CEO Tom Stofac.  “His heartfelt dedication and commitment to the organization will be instrumental in the future as we continue to partner with seniors across the state of Ohio in an effort to bring them the innovative services and products they need.”

As the Board Chair for The Ohio Masonic Home, Posey will be responsible for the long-term guidance, direction and success of the Board of Trustees.

Since its incorporation in 1890, The Ohio Masonic Home has provided continuous long-term care to residents of the State of Ohio.  The Home serves nearly 750 residents on campuses located in Springfield, Waterville and Medina, Ohio.  The organization also provides home and community- based services in various locations across the state.


Shared Parenting

What is “shared parenting?

Shared parenting is the term Ohio uses for what used to be commonly known as “joint custody.” The court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the children in accordance with the approved plan for shared parenting. It does not necessarily mean an equal, 50/50 division of time with the children, child support or any other of the issues dealing with the children.

Many times a parent will want to have shared parenting in order to reduce child support.  In many cases, child support is not affected by a shared parenting order.  A shared parenting order could mean that the parties equally divide the parenting time, but in most cases it does not.

It does mean that they will work together to raise their children.