Georgia Supreme Court Determines How HGN Test Can Be Used In Trial

The Georgia Supreme Court hands down opinions throughout the year pertaining to a variety of different issues including driving under the influence. The reasons that a defendant may choose to contest his or her DUI conviction will vary and depend on the facts and circumstances of the case. Defendant Mellecia Spencer was convicted of one count of DUI less safe and chose to appeal her case on the grounds that the trial court improperly “admitted a police officer's testimony correlating the results of a horizontal gaze nystagmus (“HGN”) test with a numeric blood alcohol content or 'BAC.'”

Spencer had been stopped due to a headlight that was not working. When the investigating officer pulled her over the officer noted that she had “slurred speech, an odor of alcoholic beverage, a wristband from a bar, and a plastic cup in the center console that appeared to contain an alcohol drink.” When the "officer administered the HGN test to Spencer, who exhibited 4 out of 6 'clues' indicating impairment." At Spencer's trial, the officer testified, in response to questioning, that four out of six clues on an HGN test indicated that a person's BAC was at or greater than 0.08. Though Spencer objected, the officer's testimony was allowed into evidence and she was subsequently found guilty. Spencer appealed the case, but her motion for a new trial was denied by the trial court and “[t]he Court of Appeals affirmed her conviction” as well. However, she again appealed the case to the Georgia Supreme Court.

The Supreme Court stated that its holding in a prior case, Harper v. State, governed the case. In that case, the court stated, “It is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty.” This determination can be made “from evidence presented to it at trial by the parties,” such as expert testimony, cases, and treatises. The court stated “[t]he significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.” In addition, the court stated that “once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.”

One such test that has been generally accepted is the HGN test. But this test is “admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” It has not been established that the HGN test “is an indicator of either a specific number or a numeric range of blood alcohol content.” The court determined that the state failed to meet the Harper standard. The court stated that the evidence presented at trial was not sufficient enough to “establish the scientific validity or reliability of any correlation between a particular number of clues on an HGN test and a numeric blood alcohol content, whether a specific percentage or ‘equal to or greater than' a specific percentage.'”

The court then stated that the trial court “abused its discretion in admitting this evidence” and that the error was not harmless.” The court reversed Spencer's DUI less safe conviction.