(1) the HGN test is not a reliable indicator of impairment due to alcohol and, therefore, does not meet the Frye standard; (2) even if the HGN test does meet the Frye standard, admissibility of test results should be limited to showing probable cause for arrest; (3) if HGN test results are admissible at trial, the court must strictly enforce standards for performance of the test; (4) police officers who testify regarding HGN test results are testifying as expert witnesses and should not be considered qualified unless they have received extensive training; (5) the trial court’s findings of fact in the Frye hearing were erroneous; and (6) the HGN test results should not have been admitted at her trial because the officer did not properly administer the test.The most important conclusion reached by the court was that HGN test results are not proof of actual impairment, and instead can be used only for the possibility of impairment. Other significant conclusions reached by the court were that:
- The HGN test cannot be used to establish an alcohol concentration or to suggest a concentration greater than 0.08%
- The HGN test now requires strict compliance with NHTSA (in other words, police officers can no longer claim “I don’t know what NHTSA is, but I did it according to my training”….)
- The trial court must assess each matter on a case by case basis and can rule that the admission of HGN test is inadmissible on grounds of undue prejudice
- Police officers must be properly trained under NHTSA protocol
- The HGN test is not properly performed while a subject is seated, as explained by the State's expert.
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