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  1. #1
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    Penlights for HGN?

    I was just wondering if anyone uses those streamlight LED penlights for doing HGN on OWI stops? I thought it would be nice (because it gives them something to look at and I wouldnt have to fumble with a flashlight at night), but I dont want to use it and have negate the test.

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    In accordance with NHTSA light cannot be directly in their eyes while doing the test.

    I think you would just be giving a defense attorney openings to ruin your tests.

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    Thanks for the heads up. I wasnt sure if it was just blinking lights or if penlights counted

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    I was just asking some other officers at my dept about this. Most of the officers I know that do alot of DWI's use those pen lights....everyone seems to have a different color. I don't think any of them have had problems in court with that issue as long as they are facing away from traffic and the overhead lights are off. Also, if you zoom the camera in enough on the suspect to where his face/eyes are the only thing visible during the HGN test, they are not able to see what type stimulus you are using (IE: finger, pen, light, ect...).

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    Maybe things are done different down south but defense attorneys are very specific on the stimulus that we use. Using a finger is not a good one because the tip is the same color as the rest of your finger. White BIC pen with black tip is the best.

    I agree a pen light would be great but as an SFST Instructor it clearly states do not night shine light directly in the suspects eyes (up for interpertation). I personally would not do anything to risk the most accurate test being thrown out.

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    What exactly do you mean that the camera doesn't even see the stimulus?

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    i personally wouldnt use a pen light, what's wrong with a standard pen, get's the job done. also, why would you use your camera to record it? do you guys really do it that way, make sure the camera is focused on them during the tests? we do it off camera.

  8. #8
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    I'm an SFST Instructor and using a pen light is absolutely a no-no. As AceCop said, NHTSA standards are VERY clear, light should NOT be shined into the subjects eyes. I don't care if you boys in Texas haven't had a problem with using them yet. You're doing it wrong and could get it handed to you in court when a good defense attorney finds out.
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    Maybe I did not make clear, the light is NOT used to shine IN the subject's eyes. It is pointed upwards with the tip of the index finger partially covering the light. This illuminates the finger so the subject can see it better. Yes, you can use your flashlight in your off hand but if your not careful it can wash out the video. If you have a good camera and get close enough, the jury is able to see the nystagmus. I personally have never used this method but have seen others do it with good success.

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    Sorry but I call Bull on the camera seeing the Nystagmus. You would have to dedicate one officer to manually using a camera and keeping a drunk in one place is a challenge in itself.

    As far as the light pointing upwards it doesn't matter it is 12 to 15 inches from their face and it shines in their eyes.

    Just for info if you do use your camera better make sure that your SFST's are perfect because the video will be heavily scrutinized (stop watch etc..)

  11. #11
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    I used to use a red Streamlight LED penlight and had them focus on the light. I never had a problem with it, but looking back, it was a bad idea.

    If you're going to use a penlight, put your finger over the tip so your FINGER lights up and they're not looking right at the bulb. Apparently a good defense attorney can hire an expert doctor to testify an LED in the eyes is a bad thing.

    A lot of guys use a pen or pencil with eraser.

    PROS: The white tip of an eraser on a dark background at nice makes it an easy focus point for the drunk.
    CONS: It's something else in your hand.

    Now days I use my finger. In 5 years when I go to court on a DUI where somebody failed to appear for that long, I'll (hopefully) still have the stimulus I used to check his eyes! No, it doesn't contrast as well with the background, but as long as I confirm they can see the tip of my finger, I'm good to go.

    Also on using those penlights, you're not using that to illuminate their eyes to see the HGN and thereby eliminating the need for a flashlight. If you want to see the clues, you'll still need a flashlight.

    While we're talking about SFSTs, turn off your front lights and especially strobe lights. Makes it harder for everybody to see and I've been told once in a while strobe lights can give the appearance of HGN when it's not there. I had one experience with it, and I think it's true.

    Lastly, use your video camera. Yes, it can open up a can of worms, but if you're doing things RIGHT, the way you were trained by NHTSA, you shouldn't have a problem. If a picture is worth a thousand words, a video is worth a million.

    You can describe the clues all you want to a jury, but when they see a guy falling down on video they SEE him drunk and incapable of safely operating a vehicle; they don't have to paint the mental picture.

  12. #12
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    Yeah, I call MAJOR BS to an in-car video camera picking up HGN clues. And I know you're not talking about using the penlight to shine in their eyes. We're all clear on that. It is still a NO-NO to use it in the manner you described.
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  13. #13
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    Not written by me, but written well none-the-less;


    This is a common defense tactic but generally used by less experienced, educated attorneys to try and trip up officers in court. My answer is going to be long but I am also going to try and be thorough in your answer as to why you should be using the pen light as opposed to a finger, pen, pencil etc. The first is safety. By putting a pen/pencil in your hand and holding it in front of a suspect you have introduced an edged weapon into the equation. I have seen a photo of a CHP officer who used a pencil and a guy grabbed it and buried it in her face. It will be harder to do with a light. That said, you can still do it and the chances are you will get through your career just fine. The argument against using the light is based on the lack of knowledge (and the hope you bite in court) about the eye. So here is your introduction to the eye and it's workings. The eye's movements are controlled by 13 muscles that work together very well until alcohol is introduced. Once that alcohol is introduced the muscles cease working well together and we see Gaze Nystagmus. This is observable in dark, light or anything else. What some people want you to think is that by introducing a light that this will somehow cause nystagmus because it is being shined in the eyes. All the introduction of light does is cause the pupils to possibly constrict a bit. The pupil (1 muscle) has nothing to do with the movements of the eye and simply controls the amount of light that is allowed in. Just as LASIK surgery, contacts etc etc will not effect HGN, a pen light being held up will certainly not either. The biggest benefit of using the light is visibility. The light offers a nice contrast and a focal point for the suspect. Pens, pencils and fingers don't have such a good contrast and the suspect will have a tendency to drift, even just a little, off of the focal point and this could cause you to miss clues. Having a light, especially at night gives the suspect something concrete to focus on and makes the HGN test even more accurate as you are controlling where the eye is focused. NHTSA recommends the light and there is a reason we train with the light and that is because it is simply what works the best. If an attorney would ask me, I would simply tell him that I use the light as a focal point, it has no effect on the way the eye moves and in and of itself, cannot induce nystagmus. I would also bring up that I know this through my training and would encourage you to invite me up or give my information to the prosecutor and have them call me. Personally, I like the Streamlight Stylus pen light. It comes in a variety of colors (color also does not make a difference) and they are durable and last forever. They are between $15-$20.

  14. #14
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    Straight from the NHTSA website.

    http://www.nhtsa.dot.gov/people/inju...us/hgntxt.html

    The HGN test requires only an object for subjects to follow with their eyes, such as a pen or the tip of a penlight.42

    42 Research has shown that the characteristics of the stimulus used, including size, shape and brightness, have no affect on the HGN test results. Forkiotis, supra note 5, at 11.

    NHTSA standards about light being shined in the eye have nothing to do with this. A penlight merely makes the tip glow and shines upward, not into an eye. To say a penlight should not be used is to misunderstand the NHTSA.

  15. #15
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    NHTSA absolutely 100% DOES NOT say don't use a penlight. NTHSA actually says it doesn't matter what you use as a stimulus, as long as the person doing the exercises can see it well enough to follow it with their eyes. Heck your gun could be an effective stimulus (although probably not a smart one). You should not have any emergency lights facing the subject, and you should not shine lights directly in their eyes... however there's nothing wrong with having them facing your headlights/takedowns (the more light to see their eyes bouncing all over the place the better). Remember, when we're talking pen lights... we're talking about a pen with a very small bulb on the tip that makes it glow... not a pen with a flashlight on the end.

    Towncop, I see you're a SFST instructor. Are you just an instructor, or also a DRE? No offense, but you need to read the NHTSA standards again if you're saying a penlight as stimulus is an absolute no-no, then you need to re-read the NHTSA standards. Please don't take offense to me saying that... I misread stuff all the time.

    I do agree, however, that seeing nystagmus on camera in the field is impossible. Unless you do all exercises in a perfect environment where you can put the camera on your shoulder, it's just not going to happen.

    Want some advice on getting really good at reading nystagmus? Marry a woman who has natural nystagmus. Mine does... so I get to practice all day long.

    One thing that is important when it comes to DUI, specifically HGN and if you ever want to become a DRE, is to start a logging your FSEs. On mine I put the date, the name of the person, the number of clues for each exercise (For example, on HGN most of my arrest have 6, some say 6 plus VGN). I then list their BAC (or refused), rather or not they were arrested (if not obviously BAC says N/A, we don't have pre-arrest PBTs), and the circumstances of the encounter (pattern stop, traffic crash, whatever). Get a few hundred logs under your belt, and with the right prosecutor asking the right questions the court will allow you to testify to nystagmus.

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    99.9% of the time we have a 2nd officer running the camera which allows him to zoom in on the subjects face during the HGN. This allows the jury to see just how much the subject is swaying back and forth while standing. And yes, if you have a good camera that is focused, it is possible to see the eye bouncing back and forth on the camera.....that of course depends on how intoxicated the individual is, video quality, ect..... I have even heard of some officers at other departments preform the HGN for a 2nd time (after the decision to arrest is made) with the subject standing directly in front of the bumper of the car, facing the camera, just to show the jury the HGN.

    Not saying its right or wrong but, to me I think the more evidence the jury is able to see the better.

  17. #17
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    like mentioned above, if you video your tests, just hope if they go to court you did everything absolutely by the book. we do ours off camera for that reason.

  18. #18
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    Quote Originally Posted by StudChris View Post
    NHTSA absolutely 100% DOES NOT say don't use a penlight. NTHSA actually says it doesn't matter what you use as a stimulus, as long as the person doing the exercises can see it well enough to follow it with their eyes. Heck your gun could be an effective stimulus (although probably not a smart one). You should not have any emergency lights facing the subject, and you should not shine lights directly in their eyes... however there's nothing wrong with having them facing your headlights/takedowns (the more light to see their eyes bouncing all over the place the better). Remember, when we're talking pen lights... we're talking about a pen with a very small bulb on the tip that makes it glow... not a pen with a flashlight on the end.

    Towncop, I see you're a SFST instructor. Are you just an instructor, or also a DRE? No offense, but you need to read the NHTSA standards again if you're saying a penlight as stimulus is an absolute no-no, then you need to re-read the NHTSA standards. Please don't take offense to me saying that... I misread stuff all the time.

    I do agree, however, that seeing nystagmus on camera in the field is impossible. Unless you do all exercises in a perfect environment where you can put the camera on your shoulder, it's just not going to happen.

    Want some advice on getting really good at reading nystagmus? Marry a woman who has natural nystagmus. Mine does... so I get to practice all day long.

    One thing that is important when it comes to DUI, specifically HGN and if you ever want to become a DRE, is to start a logging your FSEs. On mine I put the date, the name of the person, the number of clues for each exercise (For example, on HGN most of my arrest have 6, some say 6 plus VGN). I then list their BAC (or refused), rather or not they were arrested (if not obviously BAC says N/A, we don't have pre-arrest PBTs), and the circumstances of the encounter (pattern stop, traffic crash, whatever). Get a few hundred logs under your belt, and with the right prosecutor asking the right questions the court will allow you to testify to nystagmus.
    I appreciate the way you singled me out here, thanks. Since you admitted that you misread stuff all the time, you should read this thread again as there are a couple other SFST Instructors that are commenting here. We are in 100% agreement, the SFST manuals state that you should NOT use a light as a stimulus when conducting the HGN. I don't know how easier it can be for ya guys. And being a DRE has nothing to do with it.

    You recommend logging your SFST's, well, guess what? This is now part of the refresher training on SFST's as NHTSA recommends doing this as well. All my officers are told to keep a running data sheet on the tests they perform as well as date/time/outcome and such.

    As far as the court to allow you to testify to nystagmus after a few hundred tests, from what I read that seems to be a Florida thing. Most states will allow it. Here in Indiana, the courts recognize it and allow an officer, basically trained in HGN to testify in regards to the results.

    You can keep your DRE voo-doo stuff. Who has time to perform all that crap between running radio calls? No offense to you StudChris, but how many OWI's have you gotten and how long have you been a police officer? I've been an SFST Instructor for 8 years now and have more than 500 drunks under my belt. That may not sound like much, but when you consider the population of this area and little less than half of my career had been on dayshift, it's not too shabby.
    Last edited by towncop; 05-14-2008 at 03:20 PM.
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  19. #19
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    Quote Originally Posted by towncop View Post
    I appreciate the way you singled me out here, thanks. Since you admitted that you misread stuff all the time, you should read this thread again as there are a couple other SFST Instructors that are commenting here. We are in 100% agreement, the SFST manuals state that you should NOT use a light as a stimulus when conducting the HGN. I don't know how easier it can be for ya guys. And being a DRE has nothing to do with it.
    "The HGN test requires only an object for subjects to follow with their eyes, such as a pen or the tip of a penlight.42"

    That is a quote straight from the NHTSA.. so how can we still be in agreement that the manual says not to use a penlight?

    As far as the rest of the questions, not as long as you, and not as many DUIs as you... but the original question isn't how long has StudChris been a cop, or how many DUIs does StudChris have... it's can you use a penlight.

  20. #20
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    who cares if you can or can't, why not just use a regular pen. I don't get the big deal with using a stupid little pen light.

  21. #21
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    Quote Originally Posted by AceCop View Post
    In accordance with NHTSA light cannot be directly in their eyes while doing the test.

    I think you would just be giving a defense attorney openings to ruin your tests.
    Just completed the IDAP course at LAPD academy (Impaired Driver Apprehension Program) its 40 hr Ca. POST cert'd and the prelim for DRE school ( will attend in June'08) -instructors said the SAME thing; the light can cause reactions that are adverse to the actual testing( fixation). since LAPD helped DEVELOP the standardized DWI(DUI) system which is used around the nation and even in many foreign nations,as well as the DRE program- i'd say that prohibiting the use of a pen light during the test is probably something they've had a "problem" with in court before....
    Last edited by DOAcop38; 05-14-2008 at 05:25 PM.

  22. #22
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    Quote Originally Posted by MT Guy View Post
    who cares if you can or can't, why not just use a regular pen. I don't get the big deal with using a stupid little pen light.
    As an SFST Instructor, I do. I don't want officers out there performing bogus HGN tests and looking like idiots when on the stand. I'd hate to have to testify against the officer in saying that he performed the tests incorrectly and against teaching standards.
    Why are there so many babies on O.com? Creole, you and your buddy JPSO Recruit help me out on this one....

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  23. #23
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    Oh by the way, I don't use penlights because I just don't like them... I just use the same silver pen I use for work. But you never have to worry about testifying against an officer and saying he is doing something wrong because he used a penlight... considering NHTSA points out penlights as something you can use.

  24. #24
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    LOL.....ok. I'm done arguing with ya bud. As I said, been an SFST Instructor for over 8 years now, go to numerous DUI seminars, and other SFST Instructors are telling you the same thing......I don't understand what part you are missing. We get the updated material from NHTSA themselves!! Good grief.

    And I'll give you this.....you can use the tip of a penlight.......only if you don't turn it on!!
    Last edited by towncop; 05-14-2008 at 11:39 PM.
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  25. #25
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    towncop, i have a question for you to make sure that what i use as my stimulus is ok. i hate using a pen due to it being a potential weapon and with me concentrating on his eyes its tough to see his hands. i have a small popsicle stick that i carry with me all the time. on the end there is a red dot that i tell the subject to focus on as i look at his eyes. is this a good idea, or do i need to scrap that idea and just use the pen? i used to use my finger but i kept getting tired.

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