When people in the Jacksonville, North Carolina area get pulled over by a police officer, that officer often asks them to take an eye test. This eye test, technically known as the horizontal gaze nystagmus test, or HGN, is supposedly designed to allow an officer to tell if a driver is under the influence of alcohol or other intoxicating substance. The theory behind the test is that alcohol, as well as certain other impairing substances, will cause a person’s eyes to twitch in an involuntary way. The theory is that this twitching does not occur when somebody is not impaired. Officers will try to use this test to obtain enough evidence to charge someone with a DWI crime.
So, when an officer pulled you over and asks you to take this test, what are your options? Can you refuse? Should you refuse? Let’s take a look at a couple of common questions about this situation.
Do I have a right to refuse the eye test when an officer asked me to take it?
Absolutely. You are under no legal obligation to participate in any field sobriety test an officer asks you to take, including the eye test. Field sobriety tests, or FSTs, are designed to provide an officer with evidence to prove that you are guilty of a crime. In many situations, in fact, the officer has already decided to arrest you when he or she asks you to take these tests, and simply participating in the FST will do nothing to dissuade the officer of that decision.
It is also important to realize that nystagmus (the twitching of the eye that they are testing for) can occur naturally in many people. Additionally, various health conditions and injuries can cause a person to display nystagmus even if they have not consumed any impairing substances. Finally, while law enforcement officers regularly administer the HGN test, many have received little formal training in administering this test or evaluating the results.
If I refuse to take the eye test, can an officer still arrest and charge me?
Yes. There is nothing you can do to stop a police officer from arresting you if the officer is intent on doing so. Whether you believe you have done anything wrong or not, whether you believe you can prove your innocence or not, the officer can choose to arrest you at any time for any reason or for no reason at all.
However, you have the right to defend yourself through the criminal justice process. You have a right to an attorney, you have the right to demand that the state meet its burden of evidentiary proof in order to convict you of a crime, and have the right to avail yourself of every legal defense available to you. You will have your day in court and the opportunity to test the evidence against you.
So what’s the bottom line: should I agree to take the HGN test?
The key to remember here is that the eye test, as well as every other field sobriety test, is designed solely to provide the officer with enough evidence to charge or convict you of a crime. In most situations, it is in your best interest to decline to take the roadside eye test.