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Ohio Man Avoids DUI by Exclusion of "Horizontal Gaze" Test

/a> A Cincinnati man with prior DUI convictions found not guilty on a new charge when a "horizontal gaze" test was excluded from evidence.

A Cincinnati, Ohio man facing a felony charge of Driving Under the Influence (DUI) avoided jail time, steep fines, forfeiture of his driver license and his vehicle with the help of National Trial Lawyers Top 100 attorney Robert Healey of the law firm Suhre & Associates in Dayton.

According to Healey, an officer pulled over the suspect in January 2013 for going left of center in a passing zone, but pulling back too late after the passing zone ended.  The suspect stopped his vehicle in a private drive on a very steep hill.  The officer said he could smell a faint odor of alcohol.  When asked for his license, the suspect pulled out a gold credit card from his wallet instead.  He then gave the officer his driver license.

The suspect, who had five previous convictions on DUI charges, refused a Breathalyzer test.  The officer did not require the suspect to perform field sobriety tests such as walking and turning, and standing on one leg because of the steep grade.  He then performed a horizontal gaze nystagmus (HGN) test on the suspect.  Healey says, “The officer observed a lack of smooth pursuit and ‘slight’ nystagmus at maximum deviation.  The National Highway Traffic Safety Administration (NHTSA) manual on standardized field sobriety testing says that all people will exhibit slight nystagmus at maximum deviation.  The clue is observed when the nystagmus is observed for more than four seconds.”

The officer then searched the vehicle and found a cup containing brown liquid and ice.  Healey says the officer “determined it was an alcoholic drink, but poured out the contents.”  The officer then arrested the suspect and charged him with 4th degree felony DUI and refusing a breath test.  Healey says both charges could have added up to an additional five years in prison if the suspect had been convicted.

According to Healey, “The DUI in this case carried 120 days up to one year with an optional 6 months to 30 months in prison.  The fine ranged from $1,350 to $10,500.  (The suspect's) license could have been suspended for 3 years to life.  His vehicle could have been subject to forfeiture to the state upon conviction.”

Healey filed a motion in limine to exclude the HGN test, which he says was granted in part.  He adds, “The officer was allowed to testify about the test he did and the observations he made.  He was not allowed to testify about any statistical probabilities about what the defendant’s actual breath result might have been or whether it was over the legal limit.”

The case went to trial in October 2013 before Warren County Judge Robert W. Peeler.  After a one-day jury trial, the suspect was found not guilty on all counts.

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