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Lawyers who defend DUI charges often post information on field sobriety tests as a marketing hook for potential clients searching online for legal advice. One of the most popular tests discussed is the horizontal gaze, or “nystagmus” test

This test tracks involuntary eye movement by asking a driver to follow a pen or similar object, moving only the eyes and not the head, as the object is slowly moved by an officer. If the driver’s eyes tremble or jerk, she fails the nystagmus test.

It may be tough to defend a client’s failure of the nystagmus test during a roadside performance. But a new appellate decision from outside Virginia maybe worth filing away in case a client is ever asked to perform the test during trial.

A DUI defendant cannot be compelled to perform a nystagmus test during trial, according to an Oct. 22 decision by the Oregon Court of Appeals, the state’s intermediate appellate court.

The arresting officer’s field notes failed to show that he had performed his standard “resting” nystagmus test with defendant Christine McCrary, prior to checking her with the moving object. No problem, according to the prosecutor. Just have the officer check McCrary, right then and there, to see if her eyes moved involuntarily when focused on a stationary object.

McCrary’s lawyer objected and said the state needed a warrant. The trial judge told the jury McCrary had no right to refuse to take the test, and denied her motion for a mistrial.

The appeals court reversed, saying the test constituted a search.

“Given the necessity of a test, however brief, to reveal the presence of a natural or resting nystagmus, the condition is not a physical characteristic that is plainly manifested to the public,” the court said in Oregon v. McCrary. Revealing the presence or absence of nystagmus implicates potential medical facts that “an individual may well wish to keep private,” the court said.

Telling the jury the defendant could not refuse the test required reversal, even though the state said it already had provided evidence of a per se violation of the law with defendant’s blood alcohol content of 0.12.

The defendant had attempted to impeach the reliability of the Intoxilyzer machine used to test McCrary, and it was impossible to tell on which of two prosecution theories the jury relied to convict her, the three-judge panel said.

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