DUI Cases in South Carolina: the HGN Field Sobriety Test

Case Law Developments in DUI Cases in South Carolina

By M. J. Goodwin

 

On April 23, 2014, the Court of Appeals handed down its decision in State v. Gordon, which can be found here:  http://www.sccourts.org/opinions/HTMLFiles/COA/5226.pdf

 

In Gordon, the defense alleged that the State failed to record the field sobriety tests, specifically the HGN test, because the defendant’s head is allegedly not visible in the recording.  The Court agreed that the defendant’s head must be visible in the recording.

 

In a footnote, the Court described the HGN field sobriety test as follows:”Nystagmus is described as an involuntary jerking of the eyeball, a condition that may be aggravated by the effect of chemical depressants on the central nervous system.” State v. Sullivan, 310 S.C. 311, 315 n.2, 426 S.E.2d 766, 769 n.2 (1993). “The HGN test consists of the driver being asked to cover one eye and focus the other on an object held at the driver’s eye level by the officer. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeballs to detect involuntary jerking.” Id

 

The Court found that:  The current version of the statute states: “The video recording at the incident site must . . . include any field sobriety tests administered . . . .” § 56-5­2953(A)(1)(a)(ii). Because of the purpose of the videotaping to create direct evidence of the arrest, if the actual tests cannot be seen on the recording, the requirement is pointless. Accordingly, the circuit court correctly found the head must be shown during the HGN test in order for that sobriety test to be recorded, and we affirm that finding.

 

The case was remanded to the magistrate to determine whether or not the defendant’s head is recorded and whether or not the video creates the required direct evidence.  Reading between the lines of the opinion, it is my suspicion that this case will not have the required evidence and will be dismissed.  It is highly unlikely that this Defendant could have accomplished this result without the assistance of experienced defense counsel.

 

M. J. Goodwin began her career as an Assistant Solicitor in the 10th Judicial Circuit.  Since 1991, she has handled many DUI cases, as both a prosecutor and a defense attorney.

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