On January 30, 2015, the Kansas Supreme Court issued an opinion in Wichita vs. Molitor. Mr. Molitor was pulled over for suspicion of driving under the influence (“DUI”). He failed the horizontal gaze nystagmus (“HGN”) test but passed the walk-and-turn test and one-leg stand test. The officer requested a preliminary breath test (“PBT”), which Mr. Molitor took and failed. He was arrested and ultimately convicted of DUI. The Court of Appeals ruled that the result of the HGN test, which is normally inadmissible in court, was admissible for the limited purpose of considering whether the officer had reasonable suspicion to request a PBT. The Kansas Supreme Court reversed the Court of Appeals and threw out the HGN test evidence.
Since 1992, results of HGN tests have been inadmissible in DUI cases unless the prosecution could meet heightened scientific standards for admittance. Because those standards are extremely difficult to meet, HGN tests are almost never admitted. However, it is common for police to use the test as part of its probable cause analysis for arrest. After today’s Molitor decision, police can’t rely on it.
The opinion cites extensive evidence showing that the HGN test is not scientifically reliable for determining a person’s blood alcohol content. This ruling is important because it takes away the Court’s ability to consider HGN test results when deciding if reasonable suspicion existed to request a PBT. In some cases, an officer might only conduct the HGN and then request a PBT. After today’s decision, HGN tests should not be allowed to be relied upon in drivers’ license hearings or motion hearings.
The Kansas Supreme Court said it best: “at this point in the State of Kansas, the HGN test has no more credibility than a ouija board or a magic 8-ball.”