AGN Roadside Sobriety Test,
DUI, and Childhood Nystagmus: A Charge with no Foundation, Test with Flawed
Scientific Bases, and Trial that Never Should have Occurred
Louis F.
DellÕOsso, Ph.D.*
* Professor Emeritus
OMLAB
Editorial #071021
Written: 7/2/21; Placed on Web Page: 7/10/21; Last Modified: 7/10/21
Downloaded
from:
OMLAB.ORG
Send questions, comments, and suggestions to: lfd@case.edu
I recently had the opportunity to provide expert-witness testimony in a case where the defendant, who had childhood nystagmus, was charged with Driving Under the Influence (DUI) based solely on a contraindicated and poorly administered Alcohol Gaze Nystagmus (AGN) Roadside Sobriety Test. Ever since I was first made aware of the AGN test in ~1989, I have looked forward to the possibility that I might be stopped while driving and, because of my Infantile Nystagmus Syndrome (INS), charged with DUI. Unfortunately/fortunately (?) that never happened. However, the present case afforded me the opportunity to expose the fatal flaws in a test that has been labeled Òfraudulent scienceÓ (1). The defendant was stopped without probable cause, given an AGN test despite informing the officer that she had a Òlazy eye,Ó and based on her Fusion Maldevelopment Nystagmus Syndrome (FMNS) alone, was charged with DUI.
This editorial is aimed at those of us whose research or medical care is devoted to improving the visual function of patients with nystagmus thereby enabling them to better perform tasks in their personal and professional lives. One of those tasks, achievable with proper therapy, is driving an automobile. However, the very existence of a so-called ÒsobrietyÓ test that could be used to falsely convict them of DUI because they have nystagmus is something they should be informed of; additionally, they should be advised to refuse to take such a test. Hopefully, the contents of this editorial will provide physicians with information they can pass onto their patients to help them avoid the serious consequences of an undeserved DUI conviction.
The Bases of the AGN Test
There are several
assumptions about the eye movements of normal individuals that are the bases of
the AGN test (2).
1.
Normals do not develop
nystagmus (physiological Òend-pointÓ nystagmus) at lateral gaze angles less
than 45¡.
2.
A police
officer (with no medical training) is able by observation alone, to
differentiate nystagmus secondary to alcohol ingestion from the many other
types of nystagmus (acquired and present from infancy). The AGN test is not
supposed to be given to drivers with known nystagmus.
False Assumptions about Normals Underlying the AGN Test
1.
Eye-movement
studies have demonstrated that many normals develop
physiological Òend-pointÓ nystagmus at lateral gaze angles far less than 45¡.
One study contained a subject whose nystagmus occurred at 20¡ of lateral gaze (3). In another, several subjects developed
nystagmus at 10¡, 20¡, and 30¡ (4). If this latter study is representative of
the general population, 12% would have nystagmus at 10¡, 20% at 20¡, and 30% at
30¡.
2.
As the
present case illustrates, the AGN test has been given to drivers with life-long
nystagmus and a history of strabismus (Òlazy eyeÓ). Officers with no training
in the differential diagnosis of the many types of nystagmus are presumed to be
able to eliminate drivers with nystagmus other than AGN. That presumption is
without basis and contradicted by the fact that most physicians cannot do so
despite 4 years of medical school. Our research using eye-movement data
revealed that many cases of complex nystagmus couldnÕt be reliably diagnosed by
clinical observation alone, even by more highly trained physicians or nystagmus
researchers (including this author).
False-Positive Results for Drivers
with Nystagmus
The AGN test will
yield false-positive results (i.e., presumption and charge of DUI) not only for
drivers with INS, FMNS, and Spasmus Nutans Syndrome (SNS), but also could do so
for some normal drivers with physiological end-point nystagmus at small lateral
gaze angles or are taking some prescription drugs, have had coffee or even
aspirin. This lack of specificity alone should be sufficient to disqualify its
use in determining such a serious charge.
Specific Court Case
The defendant in this case was a female with childhood nystagmus who also happened to be a police lieutenant; a guilty DUI verdict would have seriously affected her livelihood. As the supplemental transcript shows, the arresting officer did not have probable cause to stop the defendant, administered the AGN test despite being told that the defendant had a Òlazy eyeÓ since childhood, did not administer the test properly, and claimed the test was positive despite the fact that he did not have a clear view of her eye movements due to the defendantÕs myogenic ptosis of the eye lids. The officer claimed the defendantÕs car crossed the midline many times but a careful examination of the officerÕs video recording showed that during the whole drive along a winding country road the driverÕs side rear wheel never touched or crossed the midline. The only times it did was at intersections when she made left turns. The physics of a four-wheeled vehicle with directionally fixed rear wheels and controllable front wheels dictates that the track of the rear wheels will always be within (i.e., along a shorter radius) that of the front wheels by an amount determined by the length of the vehicle and the sharpness of the turn. By the tortured reasoning of this officer, most drivers of cars and all drivers of trucks who made left turns could reasonably be stopped for possible DUI interrogation. Clearly, he did not have probable cause to stop the defendantÕs car. When informed of the Òlazy eyeÓ condition, he should have suspected the possible accompaniment of nystagmus (50% of INS patients and 100% of FMNS patients have strabismus). He did not question the defendant about possible nystagmus. The AGN test should be performed with the target held above eye level to facilitate a clear view of the subjectÕs eyes. In this case, because of her Òdroopy eye lidsÓ it should have been held even higher than normal. Instead, the video clearly shows that the target was held below the subjectÕs nose, thereby preventing a clear view of her eyes. Yet, the officer claimed the test was positive, just as he falsely claimed her car repeatedly crossed the midline while driving.
Prior to trial, the defendant eye movements were examined clinically and using eye-movement recordings by Dr. Richard Hertle and me. We positively identified her nystagmus as that of FMNS and so stated in our reports. That should have precluded the use of the AGN test and disqualified its putative findings as evidence of high blood alcohol level. In short, this case should never have been brought to trial; why the prosecutor chose to do so is an unanswered question. Fortunately, the jury understood the fatal shortcomings of the AGN test in this case and ruled, ÒNOT GUILTY;Ó hopefully, this will be used as a precedent in future DUI cases.
Discussion
The history of the
AGN roadside sobriety test is fraught with scientific error and lack of
expertise in eye movements by its authors. It was written under contract and
was not subjected to peer review in any of the many journals specializing in
eye movement and/or nystagmus. It is non-specific for alcohol and requires
medical evaluation of a driverÕs nystagmus by an untrained officer, possibly
under extreme conditions (i.e., darkness, roadside, inclement weather, etc.) (5). Such a test should never be the determining
factor in a charge of DUI, as it was in this case despite specific instructions
in the HGN test manual that it be used only in conjunction with other tests.
Given the many flaws listed above, I contend that it has no place in
determining DUI, even in conjunction with other tests.
The past several
decades have seen a rise in the number of successfully treated patients with
childhood nystagmus. Thanks to improved therapies, ~60% have been able to pass
the vision test for a driving license (6). The physicians who helped make this
dramatic improvement in the personal and professional lives of those patients
should also inform them of the potential dangers that the use of the AGN test
exposes them to (e.g., a false DUI charge or conviction, the time and stress
involved in defending themselves against such a charge, and the large expenses
that defense may entail). In addition to informing their patients of this
danger, physicians should provide them with a signed note delineating the type
of nystagmus the patient has; that note should be kept with the driver at all
times when driving; some physicians may already do this (e.g., David Granet, personal communication). This preventative measure
will provide a reasonable officer with the facts that should deter him from
administering the AGN test to drivers with nystagmus. In cases where it does
not, the patient should refuse to take that test since the presumed
false-positive outcome could then be used against them, possibly violating
their rights under the Fifth Amendment of the US Constitution. Our research and
treatments have enhanced the lives of these patients; we owe it to them to
provide the tools to prevent undeserved legal, economic, and psychological
damage that would accompany a false DUI charge.
Supplemental Material
Transcript
of L.F. DellÕOssoÕs Court Testimony
Downloadable from: http://www.omlab.org/editorial/editorial.html
References
1. Booker
JL. The Horizontal Gaze Nystagmus test: fraudulent science in the American
courts. Science & Justice 2004; 44:133-139.
2. Good GW, Augsburger
AR. Use of horizontal gaze nystagmus as a part of roadside sobriety testing. Am J Optom Physiol
Optics 1986; 63:467-471.
3. Abel LA et al.
Endpoint nystagmus. Invest Ophthalmol Vis Sci 1978; 17:539-544.
4. Whyte CA, Petrock AM, Rosenberg M. Occurrence of physiologic
gaze-evoked nystagmus at small angles of gaze. Invest Ophthalmol
Vis Sci 2010; 51:2476-2478.
5. Dell'Osso LF.
Nystagmus, saccadic intrusions/oscillations and oscillopsia, In:
Lessell S, Van Dalen J T W, eds
Current Neuro-Ophthalmology, Vol. 2. Chicago: Year
Book Medical Publishers, 1990; 147-182.
6. Hertle
RW et al. Clinical and Electrophysiological Outcomes After Eye Muscle Surgery
in 81 Adults With Infantile Nystagmus Syndrome. J Pediatr
Ophthalmol Strab 2021;
58:1-12.
Citation
Although
the information contained in this paper and its downloading are free, please
acknowledge its source by citing the paper as follows:
DellÕOsso, L.F.: AGN Roadside Sobriety Test, DUI, and Childhood
Nystagmus: A Charge with no Foundation, Test with Flawed Scientific Bases, and
Trial that Never Should have Occurred. OMLAB Editorial #071021, 1-4,
2021. http://www.omlab.org/Editorial/editorial.html