AD4: HGN AOK

People v Julius, 2012 NY Slip Op 02198 [4th Dept 2012] [available here]

The Fourth Department has fallen in line with the Second and Third Departments, holding that a trial court may allow a police officer to testify "regarding a horizontal gaze nystagmus field sobriety test (HGN test)without conducting a Frye hearing." What is the HGN test? Take it away, Youtube:



The Court notes that "HGN tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability." The proper foundation for the testimony must still be laid by the officer, including his qualifications and training to administer the test and "the techniques he employed."

The Julius decision makes it more difficult for DWI defendants in Rochester and the surrounding counties in the Fourth Department to challenge the admissibility of HGN tests. The main attack point shifts from the nature and reliability of the HGN test itself, to whether the officer was adequately trained and followed the proper steps in administering the test.

Of course, be careful what you say while performing the roadside tests, as demonstrated by the motorist in the clip below: