Appendix A Example of cross examination regarding the horizontal gaze nystagmus test ATTORNEY: You gave him the

e HGN test, is that correct? OFFICER: Yes. ATTORNEY: And you testified here today that you did, in fact, follow the approved method for conducting this test, is that correct? OFFICER: Yes. ATTORNEY: Now you indicated in your report, before you started this test, you checked him for equal tracking, is that right? OFFICER: Yes. ATTORNEY: And whats that? OFFICER: Thats when you have them stare at the tip of your finger, and very slowly you go to the right to maximum deviation, then to the left, and you see how well his eyes are following your finger. ATTORNEY: Okay. OFFICER: If there is poor tracking, your eyes would not follow the stimulus from left to right. ATTORNEY: And if there is no equal tracking, then you cannot do the test. ATTORNEY: Did you check for eye glasses? OFFICER: I asked if he wore eye glasses. I dont remember an answer. ATTORNEY: Do you know the 10 administrative steps for the HGN test? OFFICER: Well, I carry this cheat sheet in my vehicle, and this is what I go by. I ask if he is wearing contact lenses. I check for equal tracking. I look at the pupil size to see if theyre the same. ATTORNEY: Before the test, you were supposed to check not only for equal tracking and equal pupil size, but also for resting nystagmus; and according to your report, you didnt check for equal pupil size or resting nystagmus. OFFICER: Thats just a standard thing I check for. I guess I didnt write it in my report. ATTORNEY: Well, did you do it, or did you not? OFFICER: I did look at the pupil size, yes. ATTORNEY: Did you check for resting nystagmus? OFFICER: As he was standing, yes. ATTORNEY: Okay. But then, in the report you dont cite to it that you did those two things? OFFICER: Thats just something I do every time, I guess. ATTORNEY: You do believe you did. Youre not certain, then? OFFICER: Well, this is awhile ago, and Ive done multiple since. I dont remember every detail of the incident. ATTORNEY: But we could go by your report for accuracy because that was done shortly after the arrest, correct? OFFICER: Correct. ATTORNEY: And the only thing in your report is the equal tracking, is that right? OFFICER: Yes. ATTORNEY: I am showing you the training manual published by the National Highway Traffic Safety Administration on HGN testing. Were you trained to follow the method in this manual? OFFICER: Yes. Maybe not that exact manual, but one similar to it. ATTORNEY: It is true, is it not, that according to the training that you received that if you do not follow the procedures in their entirety, that the test is not considered valid, is that right? OFFICER: That what it says. ATTORNEY: Ill refer you to Roman numeral VIII, page 19. Ill show that to you from the manual. You do understand that validation applies only when the tests are administrated in the prescribed standardized manner?

OFFICER: Okay. ATTORNEY: And that the standardized clues are used to assess the suspected performance, correct? OFFICER: Okay. ATTORNEY: And that the standard criteria are employed to interpret that performance, correct? OFFICER: Yes. ATTORNEY: And if you do not follow those things, if any one of the standards is changed, the validity of the test is compromised, correct. OFFICER: If that is what it says. Yeah, okay. ATTORNEY: Which eye did you start with for the first portion of the test? OFFICER: For the lack of smooth pursuit? ATTORNEY: Yeah. OFFICER: I guess I watched both eyes at the same time. ATTORNEY: Were you not trained that you were to start with the subjects left eye first? OFFICER: I dont remember that from the training, no. ATTORNEY: Ill show you Roman numeral, page 7, of the student manual for learning the steps. What does the first sentence say? OFFICER: When the HGN test is administered, always begin with the subjects left eye. ATTORNEY: And you cant tell us today that you did that? OFFICER: No, I cannot. ATTORNEY: And then youre supposed start with the test, correct? OFFICER: Correct. ATTORNEY: Did you ask him if he had any medical conditions that would prevent him from conducting this test properly? OFFICER: I cannot remember if I did or not. ATTORNEY: And isnt it true that there are numerous other things that can cause this jerking of the eye? OFFICER: Yeah. There are a couple of things. ATTORNEY: Including disorders of the inner ear and ear infections? OFFICER: And it can just happen naturally, as well. ATTORNEY: Okay. How many seconds are you supposed to waive your finger in front of their face? OFFICER: I dont really go by the time. I dont count it outside of my head. ATTORNEY: Well, isnt it true, referring to Roman numeral number VII, that its supposed to be only a two second pass? OFFICER: Okay. ATTORNEY: And you cant remember if you did that or not? OFFICER: For the equal tracking? ATTORNEY: No, for the smooth pursuit. OFFICER: I guess I just go like that [demonstrating], and its about two seconds. ATTORNEY: Was it a finger that you used for a stimulus? OFFICER: Yes. ATTORNEY: How far did you put the finger from his eyes? OFFICER: I guess thatd be about a foot. ATTORNEY: A foot? Twelve inches? OFFICER: Ten to twelve inches, yeah. ATTORNEY: Ten to twelve inches. Doesnt the manual say that its supposed to be twelve to fifteen inches? OFFICER: If thats what it reads, yes. ATTORNEY: And for the second part of the test, the distinct and sustained nystagmus at maximum deviation, how do you determine the 45 degree angle?

OFFICER: Ill go about halfway for that one. So when their eye is about to touch the corner of their eye or the eyelid area here [demonstrating]. ATTORNEY: Isnt it true that if you hold the pen or your finger out twelve inches away from the face, youre supposed to move out twelve degrees to determine the angle? OFFICER: Um ATTORNEY: In proportion to the distance from his face? OFFICER: I guess, yeah. ATTORNEY: Did you do that in this particular case? OFFICER: Well, thats about where youre talking about. I guess I dont know the measurements. ATTORNEY: So you cant tell me today that you accurately did a 45 degree angle to determine maximum deviation. OFFICER: Well, from my training, they said it would be about when the eye gets to the corner of the lid here, and thats about 45 degrees. ATTORNEY: Did you notice if there was any white showing in the corner of the eye at maximum deviation? OFFICER: In the direction were going? ATTORNEY: Yeah. OFFICER: There was not, no. Except for when its jumping, it might have shown the corner. ATTORNEY: How many seconds are you supposed to hold that position at maximum deviation? OFFICER: I believe its only I only held it about three seconds at tops. ATTORNEY: Three seconds? Page Roman numeral VIII, number seven, how many seconds does it say? OFFICER: Four. ATTORNEY: Four seconds? So you didnt comply with that part either? OFFICER: Well, I wasnt running a timer. ATTORNEY: The second part of the test then is onset of nystagmus prior to 45 degrees, is that correct? OFFICER: Yes. ATTORNEY: When you start moving the stimulus, how many seconds are you supposed to move it? OFFICER: When Im moving my finger? ATTORNEY: Yes. OFFICER: I guess I dont know the time off the top of my head. I just have a pattern I do. ATTORNEY: Roman numeral VIII, page seven again says four seconds for that, correct? OFFICER: Yes, it does. ATTORNEY: You cant tell me that you followed four seconds? OFFICER: No, I cannot.