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Editor: Will Hanlon & Charlie Lambert
Profession: Tampa Defense Attorneys

Category: DUI

CASE #001-674-XAM; 007-179-ELP; 007-182-ELP; 004-209-EPL; Judge Tom Barber; Date: December 12, 2006

FACTS: The defendant was pulled over for failure to maintain a single lane and no tag light. When the officer approached the vehicle she claimed she smelled an odor of alcohol on the defendant's breath, and his eyes were bloodshot and glassy. The officer also noticed three open beer bottles in the defendant's vehicle. Based on her observations she called a DUI unit to conduct the investigation. The defendant told police he had taken several medications for depression and other illnesses. During the investigation the DUI officer administered a number of field sobriety tests. However, the incident report was unclear as to how he performed on the tests. This problem was aggravated by the fact that the officer had no video of the defendant's performance. One of the tests often administered by a police officer in a DUI investigation is the Horizontal Gaze Nystagmus (HGN) test. The HGN test involves the officer simply moving a pen with a light on the end of it in front of your eye. The subject is required to keep their head still while the officer moves his pen across your field of vision. If your eye begins to shake when the pen is moved to a 45 degree angle then it is supposed to indicate impairment. It is important to realize that a nystagmus can be caused by a number of factors that do not involve alcohol (contacts, fatigue). Some people have a natural nystagmus. For some reason the officer in the defendant's case did not administer the HGN test. This seemed very strange since he indicated the defendant did not perform well on some other tests that require physical coordination. If the officer felt the defendant was too intoxicated to perform the physical tests (walk and turn, one-legged stand, ... etc.) then why didn't he administer a test that involves almost no physical performance on the part of the defendant?
The truth of the matter is that just about every DUI investigation includes an HGN test, and they fail almost everyone. For some reason the officer decided not to administer this test in our case.

DEFENSE: The police officer's report was very confusing and inconsistent with the facts. In addition, the State was unable to explain the inconsistencies without the DUI video.

RESULT: The defendant's DUI was dropped and his traffic infractions were dismissed.