Motion for Court to Take Judicial Notice of Nystagmus Causes Other Than Alcohol
Johnathan Ball
CAUSE NO. _______________
THE STATE OF TEXAS	§	IN COUNTY COURT
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V.	§	AT LAW NO. ___
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______________________	§	__________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:
	Defendant moves this Court to Take Judicial Notice of Nystagmus Causes Other than Alcohol and in support therefore would show unto the Court as follows:
I.
	It is beyond dispute that nystagmus can be brought on by a myriad of causes other than alcohol. Defendant is requesting the Court take judicial notice of this fact and instruct the jury accordingly.
II.
	In United States v. Horn, 185 F.Supp.2d 530, a federal district court provide a detailed history of HGN and nystagmus, and the current scientific state of the Standardized Field Sobriety Tests. In a 49-page opinion the Court detailed the history of the field sobriety tests as well as the accuracy of those tests. It should be noted that the Horn Court specifically included a detailed analysis of Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994), and a Court’s ability to take judicial notice of facts which are not readily disputable, and the veracity of which can be easily determined. The Horn Court held that there also are many other causes of nystagmus that are unrelated to alcohol consumption. Id. at 555. The Horn Court held :
The fact that there are many other causes of nystagmus in the human eye also is the type of adjudicative fact that may be judicially noticed under Rule 201. Thus, the defendant in a DWI/DUI case may ask the court to judicially notice this fact, once the government has proved the causal connection between alcohol ingestion and exaggerated nystagmus. Alternatively, the defendant may seek to prove the non-alcohol related causes of nystagmus by other means, such as the testimony of an expert witness, cross examination of any such witness called by the government or through a properly admitted learned treatise.” See Id. at 556.
	It was further stated in the Horn opinion: “The court recognized the following causes or possible causes of nystagmus: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff’s syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers, pain medication, and anti-convulsant medicine; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use.” See Id. at 556.
III.
	Without the Court taking judicial notice and instructing the jury regarding the myriad of causes of nystagmus other than alcohol, the jury will be left with an incorrect impression; that the sole cause of nystagmus is alcohol consumption.1 The jury needs to be adequately instructed by the Court that it may considered nystagmus as circumstantial evidence of alcohol intoxication, but not as conclusive proof of intoxication. Instructing the jury and placing nystagmus evidence into its proper scope will allow the State to elicit testimony from the officer regarding his/her observations, while preventing such testimony from being unduly prejudicial.
IV.
	In further support of this Motion Defendant specifically invokes Texas Rule of Evidence 102. The Court taking judicial notice of nystagmus and instructing the jury regarding other cause of nystagmus will facilitate the implementation of Texas Rule of Evidence 102 and its purpose of securing fairness in administration, elimination of unjustifiable expense and delay, promotion of growth and development the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
	Defendant invokes Texas Rule of Evidence 403 and would object to the Court refusing to instruct the jury in accordance with this Motion. Allowing the jury to hear evidence of nystagmus as evidence of intoxication without proper instruction will be so unduly prejudicial to the Defendant as to rob him of a fair trial based on the truth as well as accurate scientific evidence.
V.
	The Defendant requests the Court instruct the jury as follows:
	The Court takes judicial notice of, and you are instructed that, nystagmus can be caused by numerous sources including alcohol, excessive caffeine consumption, excessive nicotine consumption, the flu, high blood pressure, aspirin, acute head trauma, diet and changes in atmospheric pressure. You are the sole judges regarding the weight to give the officer’s testimony relating to nystagmus.”
	The Defendant requests the Court give the jury this instruction contemporaneous to the officer’s testimony relating to nystagmus.
	WHEREFORE, PREMISES CONSIDERED, defendant prays that this Court to Take Judicial Notice of Nystagmus Cause Other than Alcohol and instruct the jury as requested.

Respectfully submitted,
Johnathan Ball
Attorney at Law
605 E. Violet, Suite 3
McAllen, Texas 78504
Tel:(956) 501-6565
Fax:(956) 682-1211

	/S/	
JOHNATHAN BALL
STATE BAR NO. 24045443
ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE
	I hereby certify that a true and correct copy of the foregoing document has been delivered to the ___________ District Attorney’s Office, ________________, ____________, Texas ________, by hand delivery, on _______ 8___ 201__.

	/S/	
JOHNATHAN BALL

CAUSE NO. _______________
THE STATE OF TEXAS	§	IN COUNTY COURT
	§
V.	§	AT LAW NO. ___
	§
______________________	§	__________ COUNTY, TEXAS

ORDER
	On this the ______ day of ____________________, 201__, came on to be considered defendant’s Motion for Court to Take Judicial Notice of Nystagmus Cause Other than Alcohol and said Motion is hereby:

(GRANTED)	(DENIED)

_________________________________
PRESIDING JUDGE

	1. Defense counsel has tried numerous DWI cases in Hidalgo County and has asked every officer if nystagmus can be caused by something other than alcohol. To date, not a single officer has stated that he is aware of any cause of nystagmus other than alcohol.