During defendant’s DUI trial, the question of whether defendant was tested for resting nystagmus was raised because it wasn’t in the field notes. Then the state asked for and got a test for resting nystagmus of the defendant in front of the jury. That was a search, and the trial court’s handling of that issue before the jury was reversible. The motion for mistrial thus became moot. State v. McCrary, 2014 Ore. App. LEXIS 1487 (October 22, 2014):
Individuals have an interest in keeping “certain aspects of their physical * * * condition private.” Nagel, 320 Or at 31. A privacy interest exists in many conditions of the body, and, if an officer’s examination of a defendant reveals a physical and psychological condition that is not otherwise observable by the officer or to the public, then that examination may well constitute a search. Such is the case, for example, with one’s pulse or the content of one’s breath, blood, and urine. State v. Milligan, 304 Or 659, 664, 748 P2d 130 (1988) (blood extraction is a search); Weber, 184 Or App at 427 (urine test of student athletes is a search); State v. Stowers, 136 Or App 448, 453, 902 P2d 117 (1995) (“a person’s pulse is private” and taking pulse allows examination of “aspects of [a] defendant’s physical and psychological condition that were not otherwise observable”); State v. Osburn, 13 Or App 92, 94, 508 P2d 837 (1973) (blood-alcohol test is a search). From those examples, a common principle is apparent: Some examinations “may reveal a host of medical facts,” and none of that information, “to put it plainly, is the public’s business if the individual does not want it to be.” Weber, 184 Or App at 427.
We conclude that testing for a resting or natural nystagmus constitutes a search. The state’s request, here, would have required defendant to focus on a stimulus, held for a number of seconds at approximately one foot from her face, in order to reveal whether her eyes manifested an involuntary twitching or jerking movement. Without proper administration of the test, as Powell testified, “the test may not work properly, and you might not see the nystagmus even though it could be there.” Given the necessity of a test, however brief, to reveal the presence of a natural or resting nystagmus, the condition is not a physical characteristic that is plainly manifested to the public. The test would require defendant to engage in conduct, a focused gaze on a fixed point from her face, that would allow Powell “to detect certain aspects of defendant’s physical * * * condition that [was] not detectable through simple observation” from his station in a public courtroom. Nagel, 320 Or at 30.
Nystagmus is not an observation that is made or understood as a matter of common knowledge. State v. O’Key, 321 Or 285, 297, 899 P2d 663 (1995) (“relationship between the effects of alcohol on the central nervous system, the nystagmus phenomenon, and the HGN test is not within the realm of common knowledge of the average person”); see State v. Clark, 286 Or 33, 39-40, 593 P2d 123 (1979) (taking judicial notice of a list of commonly known “observable symptoms or ‘signs’ of alcohol intoxication,” which does not include nystagmus). Revealing the presence of nystagmus implicates the potential medical facts that an individual may well wish to keep private. As Powell testified, natural or resting nystagmus is present in a small percentage of individuals, and it is standard procedure to rule out an existing medical cause of nystagmus before administering a complete HGN test. The Supreme Court has observed that examples of causes of nystagmus not induced by alcohol “include caffeine, nicotine, eyestrain, motion sickness, epilepsy, streptococcus infections, measles, vertigo, muscular dystrophy, multiple sclerosis, influenza, hypertension, sunstroke, changes in atmospheric pressure, and arteriosclerosis.” O’Key, 321 Or at 312-13 (citing Comment, Can Your Eyes be Used Against You? The Use of Horizontal Gaze Nystagmus in the Courtroom, 84 J Crim L & Criminology, 203, 212 (1993)). Such information falls within a privacy interest protected by Article I, section 9. See, e.g., Weber, 184 Or App at 427 (urine can reveal “whether an individual is diabetic, epileptic, or–in the case of a woman–pregnant”). Insofar as this search was to be imposed upon defendant without a warrant or without an exception to the warrant requirement, the search would have been unconstitutional.
Having concluded that this test would constitute an unlawful search, we must also conclude that the court erred by advising the jury that defendant had no right to refuse to cooperate in the examination. The midtrial instruction was mistaken. State v. Powell, 74 Or App 334, 337, 703 P2d 257 (1985) (erroneous jury instruction is not harmless unless “there is substantial and convincing evidence of guilt and that the error committed was very unlikely to change the result of the trial”). Because those errors are not harmless, they are dispositive, and we do not need to address defendant’s argument that to tell the jury of her refusal violated her right against self-incrimination under Article I, section 12, of the Oregon Constitution. Nor do we need to address defendant’s motion for a mistrial.
