Field Sobriety Tests in DUI Cases: Horizontal Gaze Nystagmus (HGN)

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State v. Gordon, Op. No. 27554        (S.C. Ct. App. filed August 5, 2015) 

Holding – Field Sobriety Tests:

In Gordon, the South Carolina Supreme Court affirmed a DUI conviction and held that Section 56-5-2953 requires the defendant’s head be video recorded during the administration of the HGN test (one of the three standardized field sobriety tests).  The Court also found that the recording of the HGN test in this case complied with the statute.

Background – DUI Arrest, Conviction, and Appeal:

Gordon, the defendant, was stopped at a license and registration checkpoint conducted by the South Carolina Highway Patrol.  A State Trooper administered the field sobriety tests to Gordon, which included the HGN test.  The Trooper’s dash cam recorded the DUI field sobriety tests.  After Gordon completed the tests, the Trooper arrested him for driving under the influence (DUI) in violation of Section 56-5-2930 of the South Carolina Code of Laws.  Gordon proceeded to a jury trial and was found guilty as charged.  Gordon appealed his conviction to the South Carolina Court of Appeals.

Gordon’s Argument:

Gordon argued that the video recording failed to satisfy the statute because his head was not visible during the HGN portion of the field sobriety tests.

Law – Statute Requires Video Recording in DUI Cases:

S.C. Code Ann. § 56-5-2953(A) (Supp. 2011) :
(A) A person who violates Secti on 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and breath test site video recorded.
(1)(a) The video recording at the incident site must:
(i) not begin later than the activation of the officer’s blue lights;
(ii) include any field sobriety tests administered; and
(iii) include the arrest of a person for violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the
person being advised of his Miranda rights.

Analysis – Application of Law and Facts:

The Court found that the HGN field sobriety test must be recorded and that the defendant’s “head must be visible on the video [recording].”
In Gordon, the Court made the following findings:
  1.  The HGN Field Sobriety Test was visible on the recording.
  2.  His face was depicted on the video
  3.  The Trooper’s flashlight and arm are visible during the administration of the HGN test.
  4.  The Trooper’s instructions were audible.
  5.  Per se dismissal is not appropriate.
  6.  If the quality of the video recording is so poor that “its admission is more prejudicial than probative,”  the remedy is not dismissal, but suppression.  This includes the exclusion of testimony regarding the HGN test.
  7.  The recording of a HGN field sobriety test has minimal probative value because the eyes rarely recorded by the camera in the patrol car.
 Note: The probative value of a HGN test would be significantly increased if the eyes were recorded.

Arrested for DUI in South Carolina? The Jeffcoat Firm is here to help.

If you or a loved one has been arrested for driving under the influence, you should immediately seek the advice of an experienced South Carolina criminal defense attorney to review your case.  Contact our firm 24 hours a day, 7 days a week to schedule a free and confidential DUI case review.  (803) 808-9600.

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