State v. Dilliner

(Filed July 26, 2002)

I concur with the Court’s judgment. I write separately to point out that despite intimations to the contrary in some opinions, including the Court’s opinion in the instant case, West Virginia law does not permit the admission of horizontal gaze nystagmus (“HGN”) evidence as substantive evidence of intoxication, without the reliability of the HGN evidence being shown.

This Court’s leading case on horizontal gaze nystagmus in connection with the proof of intoxication1 is State v. Barker, 179 W.Va. 194, 366 S.E.2d 642 (1988). The following language from Barker is explanatory…