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Inappropriate Field Sobriety Test (HGN) Vacates DUI Conviction in Kansas

Posted by Kevin Trombold DUI Defense Attorney | Feb 12, 2015 | 0 Comments


Very often, the interpretation of a law in one state has no relevance in other states. But in one recent DUI case in Kansas, a Supreme Court decision appears to have significant ramifications for future field sobriety testing here in Washington.

Six years ago, William Molitor was pulled over in Wichita, Kansas and asked to perform three field sobriety tests. He passed two of them but failed the horizontal gaze nystagmus test, which some law enforcement agencies believe is the most reliable field sobriety test in determining impairment. The HGN test involves a police officer shining a light into a suspect's eyes and looking for jerky or uncontrollable eyeball movements.

Based on the HGN test results, the policeman in Wichita then asked Molitor to take a breath test; and the driver blew a .09, which is over the legal limit in Kansas. Molitor was eventually convicted of DUI, but his lawyer appealed the verdict. And last month, the state Supreme Court ruled that the officer should not have compelled Molitor to submit to a breath test because HGN test results are not admissible in court in that state. As a result, Molitor's DUI conviction was overturned.

This decision is relevant to Washington because both states tend to view HGN test results in the same light. But different than Kansas Washington law discusses  the results of an HGN test meet what is known as the Frye standard for scientific evidence admissibility, but only when paired with what is termed a DRE or Drug Recognition Expert evaluation.  This twelve step protocol is generally not conducted by most officers as they haven't had sufficient training.The Frye standard states that for scientific evidence (like that obtained from an HGN test) to be used as evidence in a trial, it must have "already gained general acceptance in the particular [scientific] field in which it belongs."

Of course, if you don't have a qualified DUI defense attorney handling your case, it's quite possible that prosecutors may be able to slip this evidence into the court record without you or your defense team noticing. So be sure you hire a lawyer who knows state law when it comes to the HGN field sobriety test.

About the Author

Kevin Trombold DUI Defense Attorney

Highly rated by former clients, who praise his warm, knowledgeable courtside manner and his fierce determination to reduce or eliminate charges. An accomplished speaker, author, and leader in DUI defense statewide Kevin is well respected by judges, prosecutors, and other attorneys across the State of Washington for his expertise, integrity, and knowledge in the complicated forensic science area of impaired driving allegations.


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