Before the early 1970s, officers used several different field sobriety tests to determine possible intoxication. But none of these tests were standardized. Officers used their own set of instructions and clues, making it very difficult to determine how reliable these tests were.

In 1975, the Southern California Research Institute, with funding from the National Highway Traffic Safety Administration (NHTSA), decided to come up with tests that all officers throughout the United States would administer and interpret the same way. They came up with the three standardized tests that officers use today. Then, they conducted several other studies to determine how accurate each one is.

The first standardized field sobriety test that officers rely on during a DUI investigation is the HGN, or the Horizontal Gaze Nystagmus test. Nystagmus refers to the involuntary jerking of the eyeballs. The jerking becomes more pronounced when someone is intoxicated by alcohol or certain drugs. This is why it is used to determine if probable cause exists for a DUI arrest.

Common Causes

Three drug categories can cause nystagmus to occur: Depressants, inhalants, and dissociative anesthetics. It’s important to know what can cause this condition so you can match up what the officer thinks is present with what the toxicology shows.

For example, if you have a case with marijuana, it doesn’t fall into one of those three drug categories known to cause nystagmus. So if the officer sees the standard six out of six clues, it won’t match up to the facts of your case. Either it’s a false positive or the officer is claiming to see something that was not there.

How the Officer Conducts the Test

The Horizontal Nystagmus Test (HGN) is a standardized field sobriety test where the officer instructs the suspect to follow (with his eyes) a stimulus to the left and to the right.

The first step the officer should take before conducting the test is to medically qualify your client and verbally instruct them on how to take the test.

Then, they should position the stimulus between 12-15 inches from the driver’s face and slightly above eye level.

The position of the stimulus is the first thing you want to make note of. Because if it is held too closely, too high, too far, or too low, it increases the false positive rate. Making it very important to distinguish the position correctly when reviewing the video.

Next, the officer will conduct a series of passes with the stimulus. During this phase of the test, it’s important for you to count the seconds for each pass.

Equal Tracking

The first series of passes is called the equal tracking section – – where the officer is checking to make sure your client’s eyes move together at the same speed and with a full range of motion.

The officer will always start with the defendant’s left eye. It should take approximately two seconds out and approximately two seconds back to the center, then repeat approximately two seconds out, and approximately two seconds back to the center.

So if you add all those times up it should take approximately eight seconds total.

There should be a distinct pause between the equal tracking section and the next section, which is a smooth pursuit of the stimulus.

Smooth Pursuit

For the smooth pursuit portion of the test, the stimulus is moved from the center position to the far left and back to the center position twice for each eye, moving at a speed that takes at least two seconds from the center position to the side position.

If a lack of smooth pursuit is detected, a “clue” is scored for the eye in which the officer observed a lack of smooth pursuit. The acceptable tolerance for this test is anywhere between 12-20 seconds.

Maximum Deviation

The next series of passes is designed to determine whether the person has distinct nystagmus at maximum deviation. Maximum deviation is the point at which the eye has moved fully to one side and cannot move any further.

The officer should move the stimulus from the center position to the person’s far left at a rate taking at least two seconds, hold for at least four seconds, and then move back to the center position at the same two-second rate.

It’s important to count those seconds to make sure the minimum of four seconds is met.

You also want to make sure they do not last too long because that can induce fatigue nystagmus.

Onset Angle of Nystagmus

The final phase of the HGN test is a set of passes used to determine whether the onset of nystagmus occurs prior to the eye’s movement to a 45-degree deviation.

The officer should move the stimulus very slowly at a rate that would take at least four seconds to move the stimulus to the person’s shoulder or at a rate of no more than 10 degrees per second. What matters to the officer at this point is whether or not your client’s eyes start to jerk.

If they do start to jerk, the officer is required to stop and hold the stimulus steady to confirm two things:

• Is the jerking continuing?
• Did the jerking occur before the 45-degree angle?

There should be no doubt that the stimulus is stopped and being held in that position.

Testing Conditions

One final thing to pay attention to during the HGN test is whether or not optokinetic nystagmus could be present. This is the jerking of the eyes caused by full-field visual motion. Situations, where there is a lot of traffic or distractions, might cause the person to lose focus on the stimulus and look beyond it.

Roadside Testing Terminology

• Field Sobriety Test (FST): Refers to any test the officer administers on the side of the road.
• Standardized Field Sobriety Test (SFST): Refers to three specific tests that have been researched for accuracy and follow a specific protocol to determine whether or not a person should be arrested. These tests are the HGN, the Walk-and-Turn, and the One-Leg Stand.
• False Positive: When a test incorrectly indicates a condition is present. For example, when the field sobriety tests indicate that a person was above the specified BAC, but a breath or blood test shows that they were actually below the specified BAC.
• Nystagmus: The medical term used to describe the involuntary jerking of the eyeballs.
• Resting Nystagmus: The jerking of the eyes when looking straight ahead at a stimulus.
• Lack of Smooth Pursuit: When the eyes jerk or “bounce” as they follow a smoothly moving stimulus.
• Nystagmus at Maximum Deviation: When the eyes begin jerking after four seconds while looking all of the ways to the side.
• Fatigue Nystagmus: Also known as endpoint nystagmus, it’s caused by holding the eye at maximum deviation for 30 seconds or longer. It has nothing to do with being tired.
• Vertical Gaze Nystagmus (VGN): An up and down jerking of the eyes occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs.
• Optokinetic Nystagmus: the jerk nystagmus induced by full-field visual motion.

The repercussions for a hit and run in Cobb County can be significant. Often, this misdemeanor traffic violation requires you to appear in court for an arraignment.

Usually, municipal court judges adjudicate arraignments for misdemeanor traffic offenses that occur within city limits. But, sometimes, Cobb County State Court has jurisdiction. This courthouse can preside over non-felony criminal cases, including hit and run traffic violations.

You can usually verify the location of your arraignment by reviewing your citation. This document also provides the date and time of your court date. It’s important to mark this on your calendar so the court doesn’t place you in failure to appear status with a bench warrant for your arrest.

Hit and Run Penalties

It’s best to speak with an experienced Cobb County traffic attorney before you arrive at your arraignment. The laws around this offense can be tricky – and you’re facing serious consequences with a conviction.

While you aren’t required to hire a lawyer, a hit-and-run violation carries a wide range of penalties based on the type of code the officer used for the citation. These codes can be confusing even for law enforcement and mistakes are made when it comes to charging the appropriate offense.

But before you panic about the citation, you should first evaluate the various hit and run code sections to determine if the officer charged you correctly.

Hit and Run O.C.G.A. 40-6-270

The most severe hit and run violation fall under O.C.G.A. 40-6-270, which applies when a driver strikes another moving vehicle. In this setting, the law expects drivers to pull over and exchange information with the other driver. The law also requires a driver to render assistance and contact emergency medical services and local law enforcement if someone is injured.

Drivers who fail to complete these steps could be charged with O.C.G.A. 40-6-270. Possible penalties include:

• a misdemeanor conviction,
• an automatic license suspension,
• a fine ranging from $300 to $1000,
• and jail or a probation sentence of 12 months.

Hit and Run Code O.C.G.A. 40-6-271

Striking an unoccupied vehicle is also classified as a hit and run if you fail to notify the owner or leave your contact information. This offense falls under code O.C.G.A. 40-6-271.

While less severe than O.C.G.A. 40-6-270, this violation still carries heavy penalties that might include:

• a misdemeanor charge
• a fine ranging up to $1000,
• and jail or a probation sentence up to 12 months.

Georgia Defense for a Hit and Run Violation

The best way to prepare for your arraignment is to speak with a traffic attorney who understands the codes and potential risks. Give yourself the best opportunity for a favorable outcome by scheduling a free consult with EHG Law.

If this is the first time you have been arrested for a DUI, it is important to have an understanding of the common terminology that the courts, lawyers, and judges routinely use when discussing DUI cases.

Here is a list of the top 35 terms + phrases you will want to be familiar with if you have recently been arrested for DUI in Georgia.

1205 Form – the officer submits this form to the Department of Driver Services in order to initiate an ALS suspension. Normally the officer will give the driver a copy of this form at the time of the arrest.

30-day Letter – legal notice sent to the Department of Driver Services challenging the ALS suspension. It must be sent within 30 days of a DUI arrest along with a $150 filing fee. Without this notice, DDS may automatically suspend a Georgia license after receiving a 1205 form from the officer who made the DUI arrest.

Alcosensor / PBT – handheld device officers use on the side of the road to get a general idea of a driver’s blood alcohol content. This is different than the Intoxilyzer 9000 breath test machine. In Georgia, the numerical results of the handheld device are not admissible in court.

ALS Suspension – also known more formally as the Administrative License Suspension. It can happen BEFORE a person has been found guilty of DUI. Also called a “pre-conviction” suspension. The suspension is typically longer in refusal cases.

ALS Hearing – court proceeding available to drivers who request a hearing to challenge a pre-conviction suspension.

Arraignment – the first (of many) court dates in a criminal case. At this court date, the driver is told what the exact charges are and she has an opportunity to plead not guilty.

Bench Trial – a trial where the judge makes all the decisions about what and who to believe, as well as determining the final verdict.

Chromatogram – The test result of a blood sample in DUI cases. Find out how long it normally takes to get DUI blood test results back from the GBI.

Chromatograph – The machine that performs chromatography on the blood sample.

DDS – Department of Driver Services has jurisdiction over all Georgia licenses. Download their app to track updates to your license.

Double Refusal – usually refers to a case where the driver refused both roadside field sobriety testing AND a breath, blood, or urine test.

FSTs – Field Sobriety Tests are also called roadside evaluations. The most commonly used are the HGN (eye test), the walk-and-turn, and the one-leg-stand. These tests have been standardized by NHTSA.

HGN – the first of three standardized field sobriety tests where the officer is looking for evidence of nystagmus (involuntary jerking) in the driver’s eyes which can be an indicator of impairment. Find out more about what the officer is looking for on this test!

Ignition Interlock Device – Also known as the “IID”, a device that is installed in your car to monitor your blood alcohol content while the vehicle is on. This option can be a great alternative to a twelve-month (refusal) license suspension as long as you can afford the installation and monitoring fees and don’t mind that your passengers see the device. However, there is a strict deadline for the IID so you want to be sure you know exactly how to apply for it with DDS.ga.gov. Find out more about which drivers are eligible for the IID.

Implied Consent – this is a warning read by the officer immediately after a DUI arrest, and it acts as a formal request for a voluntary blood, breath, or urine test. This is different from a Miranda warning.

Intoxilyzer 9000 – breath testing machine that all Georgia law enforcement agencies use when testing a DUI suspect’s breath.

Jury Trial – 6 jurors in a DUI trial determine which witnesses and facts to believe when making a decision of guilty or not guilty.

Less Safe – the legal standard that applies to all DUI cases, regardless of whether the test result was over or under the legal limit.

• DUI in Georgia = a Less Safe Driver
• “A driver or operator of a motor vehicle is under the influence of alcohol when the person is affected by alcohol to the extent that it is less safe for the person to drive than it would be if the person were not affected by alcohol. A driver who is less safe is less efficient, less skillful, less coherent, less able, less qualified, and less proficient.”

License Suspension – there are two types of DUI license suspensions to keep in mind. One is an ALS suspension – also known as a pre-conviction suspension. The second type is one imposed at the time of a DUI conviction – which can be many months or even years after the arrest. In Georgia, a first-lifetime conviction of DUI comes with an automatic 120-day suspension.

Miranda – a warning that is almost never read in a DUI arrest, unless the officer is seeking additional statements from the driver after the arrest. Many people incorrectly assume that Miranda is read after every arrest, but that is not true in Georgia for many traffic offenses.

Nolo – also thought of as a “no contest” plea. A nolo plea can be very helpful in many traffic cases, however it is not helpful in the DUI context.

Nystagmus – the involuntary jerking of the eyes that can be caused by the consumption of a CNS depressant like alcohol.

One Leg Stand – the third of three standardized field sobriety tests. It evaluates a driver’s ability to stand on one leg for 30 seconds without sway, hopping, putting their foot down, or raising their arms. Find out more about what the officer is scoring for on this test!

Plea of Not Guilty – the standard response of a driver charged with DUI at an arraignment or first court date, even if she laters decide to change her plea.

Probable Cause – legal standard of evidence that is required to support an arrest as opposed to what is required to initiate a traffic stop. In Georgia, the officer must have knowledge or reasonably trustworthy information that someone was in control of a moving vehicle, while under the influence to a degree that renders her incapable of driving safely.

Proof Beyond a Reasonable Doubt – standard of proof required to convict someone of DUI at trial.

• A reasonable doubt is defined by the courts as “a doubt of a fair-minded, impartial juror honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but it is a doubt for which a reason can be given arising from a consideration of the evidence or lack of evidence, a conflict in the evidence, or any combination of these.”

Reasonable Articulable Suspicion – the amount of evidence required to initiate a traffic stop is much lower than the probable cause required for an arrest.

• A particularized and objective basis for suspecting that a citizen is involved in criminal activity. This suspicion need not meet the higher standard of probable cause, but it must only be more than mere caprice or a hunch.

Refusal – where a driver does not submit to a voluntary breath, blood, or urine test. Find out more about why the officer labeled your case a refusal!

Standardized Field Sobriety Test (SFST) – Refers to three specific tests that have been researched for accuracy and follow a specific protocol to determine whether or not a person should be arrested. While all tests done on the side of the road are considered “field sobriety tests” only these specific ones are standardized – HGN, the Walk-and-Turn, and the One-Leg Stand.

Tolerance – occurs when a person no longer responds to a drug in the way they did at first. So it takes a higher dose of the substance to achieve the same effect as when the person first used it.

Vertical Gaze Nystagmus (VGN) – An up and down jerking of the eyes that occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs.

Walk and Turn – the second of three standardized field sobriety tests which examines a driver’s ability to follow a layered set of instructions while walking 9 steps out and back on a straight line. Find out more about what the officer is looking for during this test!

Warrant for Blood – The officer can always petition a judge to get an electronic warrant that will authorize them to take your blood, without your consent. Most jurisdictions have made it easier for officers to apply for and get these warrants during a DUI arrest. So even where a driver refuses, the officer can still get a blood sample by force.

Applying for a new job or thinking about a transfer?

Many of our clients worry about what will happen to their new job if the DUI comes back on the background check.

Unfortunately, you will not always know what will show on your background check, but we have found that there are good ways to avoid a pending DUI arrest from preventing you from getting the job you want.

Let’s start with the basic premise that one DUI arrest should not prevent you from pursuing the career of your dreams.

Let’s say it again because chances are that you have convinced yourself that being arrested for a DUI is the end of your life and career as you know it.

Most careers will not be derailed by a DUI arrest.

This includes all types of professions including lawyers, doctors, judges, nurses, CEOs, accountants, academics, researchers, and jobs requiring a security clearance.

So what are some examples of jobs that are most likely to be directly impacted by a DUI arrest?

• Police officers
• Anyone who drives a company car
• CDL Drivers
• Elected Officials and/or people who work for elected officials
• Pilots

So before you decide that your career is over, first determine whether your current or future job involves driving a company vehicle or requires a commercial driver’s license?

If the answer is no, then you are probably in good shape.

Won’t companies reject job applicants when they learn about a recent arrest?

If you are interviewing for a new job you may feel that an arrest will reflect poorly on you as an applicant.

This is a fair concern because there is a stigma associated with a DUI arrest and as a result, many people are loath to disclose a recent arrest on a job application.

But keeping an arrest secret by omission or by making a false statement can create a much larger problem than simply disclosing.

Most companies will run your background check after asking you to disclose arrests, or criminal charges, or convictions, or all three.

Once the background check comes back, the employer compares the applicant’s answers with the background check result. If they discover an arrest that the applicant did not disclose, the application may be terminated.

What is heartbreaking about this scenario is that it is the failure to disclose, or the “lie” on the application, as opposed to the arrest itself that becomes the problem. In many of these cases, the applicant would have gotten the job had she properly answered the background check questionnaire.

How can you find out what will be on your background check?

It is easy to check your own criminal history at a local police department in Georgia. In most precincts, you can walk in, fill out a form and leave with a copy of your criminal history.

However, it is more difficult to get that kind of direct access to the Government’s information if you are an employer. Since employers can’t go to the government for that information, they tend to rely on private background check companies for those records.

What we have observed over the years is that these background check companies often get it wrong. They regularly both overreport and underreport offenses.

This means that you can never be certain about exactly what will show up on your report.

How does a DUI show on a background check?

If you have only been arrested, but are still waiting for a final court date, the only record should be of your arrest. This will normally include the county you were arrested in and what the charges were. It would be unusual for a background check to reveal any other specific details about why you were arrested beyond the charges.

Will a DUI arrest in Georgia show on my driving record?

Although your driving record won’t reflect an arrest, it may indicate a DUI suspension. You should be able to check your driving record at dds.ga.gov by downloading their app.

Otherwise, your driving record in Georgia will not reflect a DUI unless there is a plea of guilty or conviction at trial.

Can you remove a DUI from your background check?

It depends. Unless the information on the background check is verifiably false, it can be tricky to correct these records with a private company.

We often find errors with the government’s records as well and if the government has gotten it wrong, there are steps you can take to have them corrected.

What is the best way to talk about your DUI arrest to an employer?

At EHG Law Firm we are experts at helping our clients navigate these waters. We coach our clients on how to:

• Plan for uncomfortable interview questions about a recent arrest with a potential employer
• Fill out employee background check questionaries
• Develop a plan to talk to current employers about the new arrest where disclosure is required

We make it a regular part of our practice to prepare clients so they feel confident about how to talk about a very private and uncomfortable moment in a way that dispels stigma and reassures employers that a DUI arrest should not a barrier to entry.