EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, January 11, 2008

The Judge Believes Him: Judge Finds Matt Roloff Not Guilty After Bizarre HGN Ruling

Yesterday, "Little People, Big World" star Matt Roloff was acquitted in his DUII trial (Oregon's version of a DUI) after a bizarre turn of events.  According to Circuit Judge Donald R. Letourneau, who was hearing the case, jurors disobeyed his order to not look up anything about the case and instead looked up legal definitions for the terms "implied consent" and "beyond a reasonable doubt;" one juror also looked into the accuracy of the Horizontal Gaze Nystagmus (HGN) test

As I noted before, the HGN test is the field sobriety test where a police officer places a pen about 10 inches in front of the driver's eyes, tells the driver to follow the pen with his eyes, and moves it from side to side.  The officer then determines whether the driver was under the influence based upon six "clues" or "indications," such as whether the driver's pupils are unusually jerky.  Generally, a driver exhibiting at least four of the indications is deemed to be intoxicated; Pastori determined that Roloff exhibited all six. 

Speaking about the juror misconduct, Letourneau said, "In my mind, it was like somebody threw a stick of dynamite into the courtroom."  However, instead of Roloff's lawyer moving for a mistrial after these shenanigans, he asked for the jury to be removed and for the judge to render a verdict.  The judge thereafter found Roloff not guilty because the HGN test only has 77% accuracy, which was insufficient to find him guilty beyond a reasonable doubt.  This decision leads me to believe that Judge Letourneau was the only one in the courtroom who heeded his own advice about not doing research on the case.

I am aware of the study ostensibly relied upon by Judge Letourneau.  In 1983, the National Highway Traffic Safety Administration conducted a study which determined that the HGN test is 77% accurate in detecting whether an individual's BAC was .10 percent or higher.  However, under Oregon's DUII statute, a person is guilty of driving under the influence if he drives a vehicle and

     (a) has a .08 percent or higher BAC as shown by chemical analysis of the breath or blood of the person;

     (b) is under the influence of intoxicating liquor, a controlled substance or an inhalant; or

     (c) is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.

I'm not sure of Judge Letourneau's point because Oregon courts (like most courts) have never allowed HGN test results to prove a certain BAC level and thus DUII under subsection (a). State v. O'Key, 899 P.2d 663 (Or. 1995).  Instead, they use the HGN test to prove DUII under subsection (b), as evidence that the driver was under the influence of intoxicating liquor, a controlled substance or an inhalant.

Furthermore, even if the HGN test results were used in Oregon to prove a certain BAC level, that level is .08 percent, not the .10 percent used in the NHTSA study, almost certainly meaning that the HGN test would be more than 77% accurate.  Moreover, the 77% accuracy rate is only for people showing at least four of the HGN indications.  When a person, like Roloff, exhibits all six, studies show that the accuracy rate is much higher, with some claiming it is 99% accurate.  To me, then, the judge's decision was terribly misguided.

(It should be noted that Roloff was found guilty of refusing to take the breath test and not staying in his lane of travel and was fined $742 for the violations and charged $103 in court fees.  Furthermore, based upon his refusal to take the breath test and his prior DUII-related incident, Roloff's license was suspended for three years.).



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i love the Roloffs!!!

Posted by: | Jul 6, 2008 5:54:18 PM

I'm not exactly sure how it's misguided. Unless I'm mistaken, that study (the 99 percent accuracy one) was apparently not admitted into evidence and so the judge could not have taken it into consideration. Just as the jury cannot independently research what isn't admitted into evidence, neither can the judge when the judge is the sole trier in the case. Otherwise, why have rules of evidence in the first place? The judge would be able to take heresay and the like into consideration.

Posted by: Jake | May 12, 2010 12:49:27 PM

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