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Defenses Against HGN Test in Michigan DUI Case

Question: What are some defenses against the horizontal gaze nystagmus test in a Michigan DUI/OWI case?

Answer: Well, this is a test that is very frequently mis-administered by the officers. I had a hearing just a couple weeks ago where the officer had completely mixed up different parts of the test and was holding the stimulus at a 45-degree angle vertically instead of determining the 45-degrees on the horizontal plane for one of the steps of the test. So, this is a test where there's going to be fertile ground for reviewing videos. Some of the things we're looking for in that is the total length of time for the test, the number of passes in the test, and what, it's usually very difficult in videos to see the eyes of the client, so it's not really easy to determine if we can see if there's nystagmus, but if the officer didn't even follow the procedure correctly, since it is a scientific test, that could be something that we could file motions about or bring up to a jury at trial to show how the test was not performed correctly.

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