What does the eye test in Oregon tell police officers?
When can a police officer check to see if a driver is driving under the influence in Oregon?
There are certain tests that Oregon police officers conduct on individuals as it relates to concerns about a person driving under the influence of alcohol. You have constitutional protections about intrusions from the government. A police officer first must have a legal basis to pull you over for driving drunk. This can be for noticing you unsafely swerving in the road or for responding to a call to law enforcement about concerns about your driving. The stop can also be if you violated any kind of traffic rules or if the license plates are expired or if there is a warrant out for the owner of the vehicle.
Once the police officer has stopped the vehicle and it was not due to the initial concern of swerving, the police officer must have additional evidence to further investigate for a DUI. If a police officer can smell alcohol on your breath, it can allow a police officer to further investigate. The investigation is to determine whether or not the alcohol has impaired that person’s driving ability, or in other words, to see if you have committed a crime of driving while impaired above Oregon’s alcohol limit. The tests the officer conducts are known as field sobriety tests.
What does the eye test in Oregon tell police officers?
One test that police officers conduct to see if you are impaired is called the horizontal gaze nystagmus eye test. (HGN) test. This is also commonly known as the “DUI eye test” or the “follow the pen test” or “police eye chart.” Nystagmus is a greek work meaning nodding, drowsiness, sleepy or dozy. The medical term is the rhythmic, involuntary, rapid, oscillatory movement of the eyes. What the test does is determine how smooth a person's eyes can track an object. Or in other words, the test is to see if you have “drunk eyes” or “sober eyes.”
If a person has an involuntary jerking eye that could be further evidence that a person is impaired. If a police officer improperly performs the nystagmus eye test, that could be used as a defense to show the police officer did not have sufficient evidence to show that person was impaired with alcohol while driving a vehicle.
How do Oregon police officers conduct the eye test?
What the officer does first or should do first is have the individual remove glasses or hard contact lenses if they are being worn. The police officer should also first check to see if the pupil size of each eye is equal. The officer is also supposed to check the resting nystagmus and see if the eyes are equally tracking.
What does an officer use to conduct the eye test?
After that, a police officer is supposed to use a “stimulus” for the individual to follow with his or her eyes. A stimulus is usually a pencil or penlight. There could be issues with the test if the officer uses his finger. The officer should instruct the person what he will be doing with the test and should not continue unless they know the person understands the instructions. The stimulus is supposed to be 12 and 15 inches away from the person’s nose, slightly above eye-level. The officer is supposed to do at least 14 passes with the stimulus.
First phase of the nystagmus eye test
The officer first checks the right eye and left eye. The officer is supposed to start at the center of the face and move the stimulus either right or left depending on the eye. These first “passes” are to test equal tracking and equal pupil size for both eyes.
Second phase on lack of smooth pursuit
The second part of the test is to determine whether or not the person has a “lack of smooth pursuit” of the stimulus with his or her eyes. This is to see how smooth both eyes track with a stimulus. The officer again puts the stimulus in the center position of the face of the individual and moves the stimulus to the far left and back to the center position twice for each eye. Each pass should take at least two seconds. If there is no smooth pursuit, that is a clue for an officer as part of the test.
Third phase checking the eye at maximum deviation
The third part of the test is to see if there is nystagmus at “maximum deviation” of the eye. This is where the eye is moved to where it is looking as far to the side opposite the nose as possible. When the eye is at this point, it is known as the, “maximum deviation” or the farthest the eye can move to that side. Once the eye is there, the officer with the stimulus, must observe some kind of involuntary movement of the eye. It must be distinct from typical involuntary movement from a person not impaired with alcohol.
Third phase, nystagmus prior to 45 degree movement
On the fourth pass, the officer is supposed to check to see if there is a nystagmus in the eye before the eye deviates from the center to 45 degrees. The angle and timing of the test are also important and should take at least 8 seconds and should be a slow rate of moving the stimulus toward the person’s shoulder. If an officer thinks he sees a nystagmus while the eye is moving, he is supposed to stop moving the stimulus to confirm.
What happens if the test is done incorrectly?
If a test does not contain all four phases and all 14 passes and is less than 82 seconds would most likely lead to an improperly administered test. The test in total should take at least 90 seconds. It could also be improperly administered if the stimulus was moved too slowly or for other various reasons. Overall, if a person shows nystagmus in the eye, the claim is that there is likely a blood alcohol level of at least .10. If the test is done incorrectly, it can be evidence to show the officer did not have evidence to further the investigation and or arrest the individual for impairment.
What if I refuse to take a field sobriety test?
This is no requirement for a person to take a field sobriety test such as the eye test. The tests are to help the officer build a case against you. However, an officer could still arrest you if he thinks there is enough evidence to think you are impaired and take you to the police station for further tests such as a breathalyzer test. If you refuse to take a breath test in Oregon your license can be suspended for at least one year. You also have the right to have an attorney present before taking a breath test. Your license won’t be suspended though for a refusal to take the eye test.
If you or a loved one have been charged with a DUI in Oregon give me a call at 503-372-6244 or click here to get your free consultation. If you aren’t in my area, I’ll refer you to a DUI lawyer who is closer to you.
*Nothing herein constitutes legal advice. You should obtain independent legal counsel regarding your specific factual situation.
