Vertical Gaze Nystagmus Not Accepted in Ohio
When an Ohio law enforcement officer gives you the 'pen test' they are looking for an involuntary jerking of the eyes often associated with ingestion of alcohol. NHTSA Student Manual at VIII-8. This test is called the Horizontal Gaze Nystagmus test (HGN). According to the National Highway Transportation Safety Administration, the HGN test is the most reliable of the standardized field sobriety tests. NHTSA Student Manual VII-2.
The officer is also trained to raise the pen above your line of sight to check your eyes vertically. NHTSA Student Manual at Section VIII. This test is called a vertical nystagmus test. Officers are trained that the presence of a vertical jerking can indicate that the subject has ingested a high dose of alcohol.
HOWEVER... Ohio has not accepted the reliability of the vertical nystagmus test. State v. Anez, 738 N.E.2d 491 (C.P. 2000); State v. Holt, 2002-Ohio-3345, 772 N.E.2d 203 (Mun. Ct. 2002); State v. Martin, 2005-Ohio-1732 (Ohio Ct. App. 4th Dist. Pickaway County 2005). This information can be used to defeat the testimony of the officer and/or to challenge his performance of the HGN test.
Ohio OVI Defense Attorney Charles M. Rowland II has received the same training as law enforcement on the administration and evaluation of the standardized field sobriety tests. Charles M. Rowland II also holds the honor of being the first attorney in the United States and the only attorney in Ohio to earn a Forensic Sobriety Assessment Certificate, which subsumes and goes beyond the NHTSA Student Manual to examine the science of DUI defense.