A nystagmus test is a field sobriety test that police officers use when they pull a driver over whom they suspect has been drinking and driving. It tests the nystagmus of an individual’s horizontal gaze. Nystagmus is the involuntary jerking of one’s eyeballs which becomes more intense when intoxicated.
How Is a Nystagmus Test Conducted?
To properly perform a nystagmus test, a police officer will hold a small object (usually a pen or something close to that size) approximately 15 inches away from your nose and eyes. Then the officer will move the tiny object from side to side and horizontally and ask you to follow the movement of the small object with only your eyes.
If you cannot keep your head still while taking the test, this indicates intoxication. The officer is searching for jerking or bouncing eye movements while you follow the object (looking for nystagmus). If nystagmus sets in before your eyes can reach a 45-degree angle, then you fail the test.
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What Happens if you Fail a Nystagmus Test?
If the police officer finds nystagmus or jerking eye movements while performing the test, that means you have failed. This gives the officer probable cause to detain and arrest you for a DUI. However, It is important to know that this test, along with other field sobriety exercises, are routinely unreliable.
This is because there many other reasons why someone could fail a nystagmus test. This includes:
- You already suffer from a natural nystagmus
- You have the flu or a sinus infection causing a nystagmus
- You were recently involved in activities causing eye strain
- Environmental conditions like extreme cold or pouring rain
- The officer improperly managed the test by moving the object too fast, too close to your face, or by not giving you enough time
Since there are so many ways to fail a nystagmus test, it would be smart to refuse to take the test in the first place. This is well within your legal rights, even though most people believe that they must do whatever the police officer orders them to do. You are allowed to fight against the abridgment of your constitutional rights in the courtroom if you have failed a nystagmus test for any of the reasons listed above – especially if an officer improperly managed the nystagmus exercise.
What Are Some Other Field Sobriety Tests?
Along with the Horizontal Gaze Nystagmus Test (HGN), there are two other standardized field sobriety tests in the state of California. These include the Walk-and-Turn test (WAT) and the One-Leg Stand Test (OLS). The WAT test consists of the driver taking nine heel-to-toe steps forward, pivoting, and then taking nine heel-to-toe steps back.
The most common ways people have failed this test include being unable to keep their balance, stepping off the line, failing to touch heel-to-toe, taking too many steps, taking too few steps, and turning incorrectly. The OLS test consists of the driver raising their foot roughly six inches above the ground, holding still, and counting down from thirty to one.
The most common ways people have failed this test include swaying, using their arms to keep balance, hopping in place, putting their foot down, or falling over. This is because these are clues that the police officer is on the lookout for to help with determining impairment.
There are a few other field sobriety exercises that are not standardized yet some police officers may still use them. Non-standardized tests mean that the National Highway Transportation Safety Administration (NHTSA) does not validate them as being reliable. Some of these non-standardized tests include:
- The Hand Pat Test
- The Finger-To-Nose Test
- The Rhomberg Balance Test
- The Finger Count Test
As with the other, standardized tests, some of the tell-tale signs of intoxication for these non-standardized tests include not following instructions properly, being unable to keep balance, and exuding any physical altercations due to alcohol consumption.
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Can You Refuse the Nystagmus Test?
You are within your full legal right to refuse to take the nystagmus test or any other field sobriety test. The police officer who pulled you over may make it seem like you are obligated to take the test. It is imperative to know that there are no penalties for refusing the test, and if the officer does force you to take the test or punishes you for refusing, then you may have a defense against any charges.
The officer may coax you into taking the test by saying phrases like “If you are not drunk, then you have nothing to hide” or “ If you do not take the test, then I am just going to arrest you now.” Do not let them trick you into gathering more evidence against you.
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Should I Still Take the Nystagmus Test if I Have Not Been Drinking?
The short answer is NO. This is due to the fact that you can still fail the nystagmus test and other field sobriety tests even if you are not drunk. You would not want to get arrested when you are completely sober all because you failed a nystagmus test due to poor weather conditions or the officer improperly performing the test.
Just politely decline when the police officer asks to perform the test. No explanation is needed because you are enacting your constitutional rights. They should not give you any trouble when doing so and if they do, then that can be brought up in court later down the line.
What Should I Do if I Have Been Arrested for DUI?
There is no need to panic if you have failed a nystagmus test and/or other field sobriety exercises and the police officer thought they had enough probable cause to arrest you for DUI. Your best plan of action moving forward is to hire a DUI defense attorney in order to build you a strong case to get the charges dropped and/or have some of the penalties erased. Simmrin Law Group has some of the finest defense lawyers in the entire state of California.
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