State v. McCrary

An in-trial Horizontal Gaze Nystagmus test is an unlawful search without a warrant or exception to the warrant requirement because Nystagmus is not an observation made or commonly understood by the public.

Defendant appealed a judgment of conviction for driving under the influence of intoxicants (DUII) and reckless driving. The officer administered Defendant a horizontal gaze nystagmus (HGN) test (a field sobriety test). During that test he observed several possible indicators that Defendant was intoxicated. On appeal, Defendant challenged the trial court’s ruling that allowed an officer to perform an HGN test during trial. Furthermore, Defendant contended that the trial court erred when she refused the HGN test and the court instructed the jury that she did not have a right to refuse the test. The Court held that the trial court erred when it directed Defendant to complete an in-trial HGN test, because the test would constitute an unlawful search. The Court reasoned that Nystagmus is not an observation made or commonly understood by the public, therefore the test is a search without a warrant or an exception to the warrant requirement. Because the test was an unlawful search, the instruction was also error. Reversed and remanded.