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Q. Tell me, sergeant, are you licensed anywhere in this country to diagnose eye disfunction?
A. Of course not.

Q. To determine physiological causes of nystagmus?
A. No.

Q. Well; how many times have you qualified as an expert in court on the physiology of the eye?
A. On the physiology of the eye, I have not.

Q. How many times on the physiological effects of alcohol on eye musculature?
A. Never.

Q. Sergeant, did you receive training in nystagmus at the highway patrol academy?
A. I did.

Q. How many hours?
A. As I recall, it was six hours of demonstration and instruction.

Q. How many hours do all recruits or officers get?
A. Six hours.

Q. So, you got the same training as any other police officer?
A. Correct.

Q. Then you did not receive any special training in nystagmus, other than what everyone routinely gets?
A. No.

Q. Who were your teachers?
A. My teachers?

Q. Yes. Who instructed you on nystagmus?
A. The training officer. I don't recall his name.

Q. Another highway patrolman, like yourself?
A. Yes.

Q. Then, the only training you received on nystagmus was from another police officer?
A. That's correct.

Q. You'd received no training from qualified physicians?
A. No.

Q. Sergeant, what does cause nystagmus?
A. What do you mean?

Q. Nystagmus—jerking of the eyes...What causes it?
A. What causes it?

Q. Yes. Could you please explain the physiology of normal nystagmus.
A. I'm not sure I can.

Q. Well, can you explain the chemical effects of alcohol on that physiological process?
A. Alcohol makes the jerking start earlier.

Q. Yes, but why?
A. I don't know.

Q. Are you familiar with other causes for early nystagmus—that is, other than alcohol?
A. I've read something about it.

Q. Are you familiar with the effects of a streptococcus infection on nystagmus?
A. No, I'm not.

Q. The effects of hypertension on nystagmus?
A. No.

Q. The effects of motion sickness, such as in a car?
A. No.

Q. The effects of caffeine?
A. No.

Q. Nicotine?
A. No.

Q. Aspirin?
A. No, counselor, I'm not.

Q. Antihistamines? Depressants? Anticonvulsants?
A. As I said, no.

Q. Flu? Epilepsy? Inner ear problems?
A. No.

Q. Isn't it true, Sergeant, that these and dozens of other conditions can cause early onset of nystagmus?
A. I couldn't say.

Q. You only know about one possible cause, right? Alcohol?
A. Alcohol causes nystagmus,yes.

Q. By the way, Sergeant, was my client suffering from any of these conditions—flu, epilepsy, car sickness?
A. I really couldn't say.

Q. Had he taken any aspirin in the hours before you gave him your version of the nystagmus test?
A. I couldn't say.

Q. Had he smoked a cigarette?
A. As I've said, I don't really know.

Q. Drunk any coffee?
A. Counselor,I have no way of knowing.

Q. Sergeant, did you even bother to ask him?
A. Obviously not.

Q. Are you familiar with "circadian rhythm"?
A. Circadian rhythm?

Q. Yes.
A. No,I'm not.

Q. You are not familiar with the fact that our bodies have a "biological clock" that governs our physiological functions? A subconscious 24 hour clock that tells our bodies what to do, when it's time to sleep, that sort of thing?
A. Oh, yes, I've heard of that.

Q. Then you're aware that from midnight to 5:00 A.M., this circadian rhythm decreases the angle of nystagmus onset by one degree?
A. I was not aware of that, no.

Q. This would increase your reading of a person's level of intoxication, wouldn't it?
A. By a small amount, I suppose.

Q. You would think his blood-alcohol level was higher than it actually was, right?
A. By a small amount.

Q. Yet, you were not aware of this phenomenon?
A. Not as it related to nystagmus.

Q. Sergeant, do you consider yourself an expert on nystagmus?
A. I believe I am.

Q. Do you understand how it works?
A. You mean the physiology?

Q. Yes.
A. I can't say I do.

Q. Do you understand the dozens of potential causes of early nystagmus—besides alcohol?
A. I've already said I was not familiar with these.

Q. What is nystagmus, Sergeant?
A. What is it?

Q. Yes. Why does the eye react the way it does? What conditions or substances can cause it?
A. I couldn't say.

Q. Nevertheless, you consider yourself an expert?
A. I am qualified, yes.

Q. Sergeant, assume in a given case that you've got an angle of onset before 45 degrees.
A. Okay.

Q. What does that tell you?
A. The subject is probably under the influence of alcohol.

Q. Where does the 45 degrees figure come from?
A. I don't know.

Q. Please feel free to refer to the manual at any time, Sergeant, but aren't there two reasons?
A. That sounds familiar.

Q. Isn't the first reason that 45 degrees is close to the angle of onset for a person with a .10 percent blood-alcohol concentration?
A. Again, that sounds familiar.

Q. And what is the second reason for using the nystagmus field sobriety test to determine intoxication?
A. I don't recall.

Q. (Reading from manual) "...and because it is easy to estimate." Is that correct, Sergeant?
A. That's what it says.

Q. You mean, nystagmus is used to test for intoxication because it's only close—to how an average person's eyes will react?
A. Apparently.

Q. And because it's easy for the police?
A. Apparently.

Q. Sergeant, does the report indicate a third reason for using nystagmus?
A. A third reason?

Q. Does it say the test should be used because it's accurate?
A. Apparently not.

Q. Sergeant, do you consider nystagmus an accurate test of intoxication?
A. I think it's fairly accurate, yes.

Q. But the state of Kansas has not approved it as a blood-alcohol test,have they?
A. A blood-alcohol test? No.

Q. You've read an article concerning a study of the accuracy of nystagmus, reported in 25 Journal of the Forensic Society 476 (1985)?
A. I believe that's one of the things you mailed me.

Q. The study was conducted by a law enforcement agency—the Santa Clara County Criminalistics Laboratory, in California?
A. I believe so.

Q. They analyzed 129 actual cases where nystagmus was given—and compared them with actual BACs, right?
A. I believe so.

Q. What were the results of that study?
A. I believe there was some discrepancy.

Q. The officers consistently erred in estimating BAC, correct?
A. There was some error.

Q. What was the conclusion reached by these researchers, Sergeant?
A. They felt there were potential problems with nystagmus.

Q. In fact, didn't they conclude that nystagmus cannot be used to predict accurately the blood-alcohol level of a suspect?
A. Something like that, yes.

Q. You've read ''Psychophysical Tests for DUI Arrest'' by Tharp, a study commissioned by NHTSA?
A. Again, counselor, I believe you mailed it to me.

Q. Well, didn't that study conclude that some individuals with no alcohol in their systems demonstrated early onset of nystagmus?
A. I believe so.

Q. In other words, the nystagmus test showed perfectly sober people to be intoxicated?
A. Apparently it can happen in isolated instances.
Administration of Test

(Note: Have the officer demonstrate exactly how he administered the nystagmus test to the client in field.)

Q. In the demonstration you just gave, I notice that you didn't ask my client if he was wearing contact lenses?
A. It must have slipped my mind.

Q. In the NHTSA report, didn't it say that contacts can limit lateral eye movement, causing nystagmus?
A. That's correct.

Q. What type of template did you use in measuring the angle of onset?
A. I didn't use a template. No one in the highway patrol uses one.

Q. You did not use a template? Well, what kind of device did you use to measure the angle of onset?
A. None.

Q. None? You simply guessed what the angle was?
A. I didn't guess, counselor, I estimated. It was an estimate based upon extensive training and practice.

Q. You used protractors to check your accuracy during this training, didn't you?
A. Yes.

Q. But you didn't use one that night with my client?
A. As I said, I don't ever use one, nor does anyone else on the patrol.

Q. Sergeant, if we performed a little test right here in the courtroom, do you think you could detect the difference between 38 and 39 degrees?
A. I...maybe not.

Q. 42 and 44 degrees?
A. Maybe, I'm not sure.

Q. The accuracy of this test depends entirely on your ability to...estimate?
A. Of course.

Q. Well, when was the last time you had your accuracy checked?
A. Checked?

Q. Yes. How often do you get your ability to estimate angles checked for accuracy?
A. I'm not aware of any such procedure.

Q. Directing your attention to the NHTSA manual again, Sergeant...
A. Yes?

Q. Don't these federal reliability standards recommend monthly checks with a template to maintain accuracy in estimating the angle of onset?
A. I don't recall reading that.

Q. Would you like a moment to review the report?
A. No, I'm sure it's in there.

Q. Do you agree with the recommendation of monthly checks for accuracy?
A. I really don't think it's necessary.

Q. Are you saying you disagree with the national experts? Or are you saying that your accuracy doesn't need periodic checks?
A. I...just don't think it's necessary.

Q. You would agree that the accuracy of guessing the angle is critical to the validity of the test results?
A. Estimating, counselor, not guessing. And, yes, I would agree. The results depend on the estimate of the angle.

Q. As the computer people say, "Garbage in, garbage out," right?
A. Yes.

Q. Incidentally, Sergeant, do we have any evidence of the angle in this case?
A. Evidence?

Q. Yes. Besides your testimony: Do we have any corroboration of what the angle was?
A. Corroboration...

Q. Is there a videotape? Another witness?
A. No, of course not.

Q. I see. Then this nystagmus test depends entirely on your accuracy...
A. Yes.

Q. ...and, of course, on your honesty?
(Have him demonstrate again.)
Q. I notice that you're holding the pen level with the eyes? And about six inches away?
A. That's contrary to the procedure recommended by NHTSA, isn't it?
A. It's how I was trained.

Q. (Reading) "The first movement in each direction should be slow...The second movement should be somewhat faster." Uh-huh.
Q. How many degrees per second do you move the pen during the test, Sergeant?
A. Degrees per second? I don't do it that way.

Q. Isn't it a fact that the federal guidelines recommend 10 degrees per second on the first movement and 20 degrees per second on the second one?
A. Well, that's not how we do it.

Q. You disagree with these national standards?
A. I do it the way everyone else on the patrol does it.

Q. So you believe your own system is more accurate?
A. It's accurate, sure.

Q. Sergeant, at what angle did you first detect jerking in my client's eyes?
A. It was before 45 degrees. 41 degrees, as I recall.

Q. What did you do then?
A. What did I do? I estimated the angle and determined that he failed the test.

Q. (Reading) "When he first detects a slight jerking, he should stop moving the stimulus to make sure that the jerking continues..." That's from the NHTSA manual, Sergeant. I didn't notice you do that in your demonstration.
A. When the jerking starts, that's the end of the test.

Q. (Reading) "If the nystagmus stops, then the officer has not found the point of onset and he should continue his examination..." Do you recall these instructions from the NHTSA manual?
A. Not really.

Q. According to the manual, initial jerking of the eyes may be a false sign of nystagmus, right?
A. Maybe.

Q. According to the manual, you're supposed to stop movement when jerking starts and watch to see if the jerking continues.
A. If that's what it says.

Q. If you don't stop and wait, if you just end the test, you may get a false point of onset, right?
A. Maybe.

Q. And a false result—maybe showing a sober person to be intoxicated?
A. If you get a false result.

Q. You're trained to look for three signs of intoxication in the nystagmus test—angle of onset, smooth pursuit and distinctive jerking, at maximum deviation?
A. Correct.

Q. And, in fact, the NHTSA manual recommends using all three criteria in the test, right?
A. Correct.

Q. So when you conducted the test, you moved the pen to the lateral extremes of my client's eye range?
A. I did.

Q. Did you note how much white of his eyes was showing at the extremes?
A. Whites of his eyes? That has nothing to do with distinctive jerking at the extremes.

Q. So you did not take note of the whites of his eyes in this test of yours?
A. Of course not.

Q. (Reading) "Since some individuals cannot deviate their eyes more than 45 degrees, some white of the eye must show to ascertain that nystagmus is not occurring at the most extreme deviation for that individual."
A. That's not how we were trained.

Q. In other words, the jerking you saw in my client's eyes could have been because he was at his extreme deviation at 45 degrees—not because he was intoxicated?
A. I doubt that, counselor.

Q. Well, we don't know, do we? Because you did not check. What was the amplitude of nystagmus at the maximum lateral deviation?
A. The what?

Q. The degree of eye jerking at the furthest movement of the eye, Sergeant.
A. Maximum deviation, yes, there was distinctive jerking at the maximum deviation.

Q. But what was the amplitude?
A. I didn't really notice.

Q. Did you consider "smooth pursuit" as a factor in the nystagmus test?
A. I did.

Q. And did you consider this an accurate indication of intoxication?
A. I did.

Q. As accurate as onset?
A. Yes.

Q. You place a lot of weight on it?
A. I suppose so, yes.

Q. Then, again, you disagree with NHTSA? (Reading) "Smooth pursuit eye the least reliable of the three signs."
A. My understanding was that all three were equally reliable.

Q. Sergeant, what was my client's score on your nystagmus test?
A. Score?

Q. Yes, what was his total score on the test?
A. There's no score, counselor. You either pass or fail. He failed.

Q. (Feigning surprise) Then your test is entirely subjective?
A. It is based upon my observations.

Q. YOU decide whether he passed or failed?
A. Of course.

Q. Why do you choose not to use an impartial, objective scoring system?
A. You can't score a nystagmus test, counselor. Either the jerking indicates intoxication or it doesn't.

Q. Are you aware that NHTSA recommends an objective scoring system?
A. I am not.

(Have him review the report.)

Q. Have you now reviewed NHTSA's scoring sheet?
A. I have.

Q. Apparently, using the objective system, four of six possible points indicates failure, right?
A. Apparently.

Q. Do you still think it's not possible to use an objective method for deciding whether a person passes or fails the test?
A. I suppose it's possible, but it's not how we were trained.

Q. Sergeant, you've read the NHTSA law enforcement booklet, Guide for Detecting Drunk Drivers at Night?
A. I think that was in the stuff you mailed me.

Q. Isn't it true that NHTSA studies indicate that even if nystagmus is administered exactly as recommended, the test has only a 77 per cent reliability factor?
A. That's what it says.

Q. So, even if the test is done as recommended, you will be right only three out of four times?
A. Apparently.

Q. Even if you gave the test as recommended, one-fourth of those who "fail" will be...innocent?
A. Apparently.

Q. And you admit that you did not give the test as recommended?
A. I gave it the way I was taught.

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