Kirkland v. State, 559 S.E.2d 161 (Ga. Ct. App. 2002). · Go Syfert
Kirkland v. State, 559 S.E.2d 161 (Ga. Ct. App. 2002). Cases Citing This Book View Copy Cite
31 citation events (31 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Yuel (sd, 2013-11-26)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Yuel (2×)
S.D. · 2013 · confidence medium
See Hughes v. State, 943 So.2d 176, 192 (Fla.Dist.Ct.App.2006) (permitting officer to rely on the Tharpe’s Equation after performing the HGN test in estimating the defendant’s BAC); Kirkland v. State, 253 Ga.App. 414 , 559 S.E.2d 161, 163 (2002) (allowing an officer to testify to his opinion about a correlation between HGN test results and BAC).
cited Cited as authority (rule) Holowiak v. State
Ga. Ct. App. · 2011 · confidence medium
Kirkland v. State, 253 Ga. App. 414, 416 ( 559 SE2d 161 ) (2002) (officer’s testimony that HGN test correlated with Intoxilyzer results was relevant and admissible).
discussed Cited as authority (rule) Duncan v. State
Ga. Ct. App. · 2010 · confidence medium
See Tousley, 271 Ga. App. at 878 (1) (b) (i); State v. Pierce, 266 Ga. App. 233, 237 (2) ( 596 SE2d 725 ) (2004); Kirkland v. State, 253 Ga. App. 414, 416 ( 559 SE2d 161 ) (2002). 26 (Punctuation omitted.) Evans v. State, 300 Ga. App. 180, 181 ( 684 SE2d 311 ) (2009).
discussed Cited as authority (rule) Bravo v. State (2×)
Ga. Ct. App. · 2010 · confidence medium
App. Ct. 1988). 14 (Emphasis supplied.) Hawkins v. State, 223 Ga. App. 34, 38 (1) ( 476 SE2d 803 ) (1996). 15 See, e.g., Kirkland v. State, 253 Ga. App. 414, 416 ( 559 SE2d 161 ) (2002) (trial court did not err in admitting the arresting officer’s opinion testimony that six of six clues on defendant’s HGN test indicated a BAC of 0.10 grams or greater). 16 We reiterate that the Harper decision requires recognition of a procedure or technique “in a substantial number of courts” before a trial court “may judicially notice, without receiving evidence, that the procedure has been establis…
discussed Cited as authority (rule) Webb v. State
Ga. Ct. App. · 2006 · confidence medium
(Citations omitted.) Kirkland v. State, 253 Ga. App. 414, 416 ( 559 SE2d 161 ) (2002) (concluding that trial court did not err in admitting officer’s opinion testimony that six of six clues on defendant’s HGN test indicated blood alcohol content of 0.10 grams or greater).
discussed Cited as authority (rule) Bowling v. State
Ga. Ct. App. · 2005 · confidence medium
Moran III, Larry A. Baldwin II, Assistant Solicitors-General, for appellee. 1 See Buckalew v. State, 249 Ga. App. 134 ( 547 SE2d 355 ) (2001); OCGA § 52-7-12 (a) (1). 2 Garrett v. State, 230 Ga. App. 97 (1) ( 495 SE2d 579 ) (1998). 3 Id. 4 See OCGA§ 52-7-8. 5 See generally Baird v. State, 260 Ga. App. 661, 663 (1) ( 580 SE2d 650 ) (2003) (involving OCGA § 40-6-391 (a) (1), the statute for motor vehicles which is nearly identical in substance to OCGA §52-7-12 (a)(1)). 6 See generally Heath v. State, 229 Ga. App. 69, 70-71 ( 493 SE2d 225 ) (1997). 7 See Kirkland v. State, 253 Ga. App. 414, 4…
discussed Cited as authority (rule) Worthman v. State
Ga. Ct. App. · 2004 · confidence medium
Germain v. State, 255 Ga. App. 864, 865 (3) ( 567 SE2d 107 ) (2002). 5 Parker v. State, 259 Ga. App. 236 ( 576 SE2d 610 ) (2003); Jones v. State, 200 Ga. App. 666 (2) ( 409 SE2d 251 ) (1991); see also Walsh v. State, 220 Ga. App. 514 -515 (2) ( 469 SE2d 526 ) (1996). 6 261 Ga. App. 633 ( 583 SE2d 489 ) (2003). 7 (Citations and punctuation omitted.) McConnell v. Akins, 262 Ga. App. 892, 893 (3) ( 586 SE2d 688 ) (2003). 8 (Citation and punctuation omitted.) Smith v. State, 270 Ga. 240, 246 (8) ( 510 SE2d 1 ) (1998). 9 See McDaniel v. State, 263 Ga. App. 625, 629 (2) ( 588 SE2d 812 ) (2003); Kirk…
discussed Cited "see" Scott v. the State (2×)
Ga. Ct. App. · 2015 · signal: see · confidence high
See Kirkland v. State, 253 Ga. App. 414 ( 559 SE2d 161 ) (2002).
discussed Cited "see, e.g." State v. Tousley (2×)
Ga. Ct. App. · 2005 · signal: see also · confidence medium
See also Kirkland v. State, 253 Ga. App. 414, 416 ( 559 SE2d 161 ) (2002) (HGN testing is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community); Hawkins v. State, 223 Ga. App. 34, 38 (1) ( 476 SE2d 803 ) (1996) (accord).
Retrieving the full opinion text from the archive…
Kirkland
v.
the State
A01A1906.
Court of Appeals of Georgia.
Jan 24, 2002.
559 S.E.2d 161
2002 Ga. App. LEXIS 92
W. Keith Davidson, for appellant., Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors-General, for appellee.
Mikell, Blackburn, Pope.
Cited by 15 opinions  |  Published
Mikell, Judge.

Stephen Lee Kirkland was convicted of driving under the influence of alcohol (“DUI”) by having an alcohol concentration of 0.10 grams or more, OCGA § 40-6-391 (a) (5), and of exceeding the maximum posted speed limit, OCGA § 40-6-181. He was acquitted of DUI to the extent that he was a less safe driver, OCGA § 40-6-391 (a) (1). He was sentenced to twelve months on probation with the first thirty days to be served in work release, eighty hours of community service, and two fines in the total amount of $1,200. The trial court denied his motion for new trial, and this appeal followed. Kirkland’s sole enumerated error is that the court erred in permitting a police officer to testify as to his opinion of what the six clues of the horizontal gaze nystagmus (“HGN”) test indicate about a person’s level of intoxication. We affirm the conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that on May 14, 1999, at approximately 4:39 a.m., Officer Jack W. Moody of the Gwinnett County Police Department stopped the car Kirkland was driving for speeding. Kirkland produced his driver’s license, but he told the officer that the car was not his and that he could not find an insurance card. Officer Moody testified that Kirkland’s eyes appeared bloodshot and glazed, and that his breath smelled of alcohol. Officer Moody directed Kirkland to per[*415] form field sobriety evaluations. First, the officer asked Kirkland to recite the alphabet, and Kirkland complied. Next, Officer Moody administered the HGN test. The officer testified that Kirkland exhibited all six clues indicating that he was intoxicated. He further testified that based on his training and vast experience in DUI investigation, it was his opinion that generally when a person exhibits all six clues, that person’s blood alcohol concentration would likely be 0.10 grams or greater.

Officer Moody asked Kirkland to perform the walk and turn and the one-leg stand evaluations, but Kirkland complained of a knee problem. Consequently, Officer Moody did not require Kirkland to perform those evaluations but attempted to administer an aleosensor test. Kirkland refused to supply a breath sample. Officer Moody testified that based on his observation of Kirkland, the odor of alcohol from Kirkland’s breath, and Kirkland’s performance on the field sobriety evaluations, he believed that the defendant was a less safe driver due to his level of intoxication. The officer arrested Kirkland for DUI and immediately read him the Georgia Implied Consent Notice. Kirkland then consented to a breath test.

Officer Moody took Kirkland to the Gwinnett County jail. He administered a breath test using the Intoxilyzer 5000. The first breath sample, taken at 5:22 a.m., indicated a blood alcohol concentration of 0.124 grams, and a second sample at 5:25 a.m. showed a concentration of 0.127 grams. The jury convicted Kirkland of DUI with an alcohol concentration of 0.10 grams or more and of speeding. On appeal, Kirkland argues that the court erred in allowing Officer Moody to testify regarding his opinion of the level of intoxication the HGN test indicates. We disagree.

The trial transcript shows that the state asked Officer Moody the following question:

Now I’m asking you based on everything — your training, your on-the-job evaluations of folks who have consumed alcohol, DUI detection and what you’ve observed on people, their physical manifestations with the eyes and so forth, the horizontal gaze nystagmus — what’s your opinion as to the correlation of that and what you find out as a result of the Intox 5000 test?

Following a defense objection which was overruled, the court clarified the question as follows:

He’s asking do you have an opinion based on what you observed in the HGN and what you read on the Intoximeter[,] do you have an opinion as to how they correlate with one another. You said you had one. So now tell us what that is.

[*416] Officer Moody gave the following testimony:

In general if you do the HGN evaluation and I denote six out of the six possible clues that I’m looking for, that does in my opinion correlate to a — to the numerical value that’s placed on that person’s alcohol — blood-alcohol content. . . . That, in general, when you see six out of six clues, the blood-alcohol content will be above a point one oh [0.10 grams] or greater.

The court then instructed the jury: “And, members of the jury, that’s his opinion. You are to decide the ultimate question.”

Contrary to Kirkland’s argument, we conclude that the trial court did not err in allowing the above testimony. “[T]he HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996). Admissible evidence involving the HGN test is not limited to test results showing the mere presence of alcohol. Sieveking v. State, 220 Ga. App. 218, 219 (1) (469 SE2d 235) (1996).

Field sobriety tests are not designed to detect the mere presence of alcohol in a person’s system, but to produce information on the question whether alcohol is present at an impairing level such that the driver is less safe within the meaning of OCGA § 40-6-391 (a) (1). [Cits.] Mere presence of alcohol is not the issue; the quantity is needed because the issue is effect.

Id. See also Werner v. State, 246 Ga. App. 677, 679 (1) (538 SE2d 168) (2000).

Furthermore, we have held that police officers may give opinion testimony regarding the state of sobriety of a DUI suspect. Wrigley v. State, 248 Ga. App. 387, 392 (4) (546 SE2d 794) (2001). “And to the extent that such evidence represented expert testimony, it was within the trial court’s discretion to determine whether Officer [Moody] possessed the requisite learning and experience to testify as an expert.” Id. See also Werner, supra at 680 (3). The evidence showed that Officer Moody was specially trained in the area of DUI detection, had conducted over 1,000 field sobriety evaluations, and had conducted approximately 700 breath tests using the Intoxilyzer 5000. We find no error. See Wrigley, supra.

Additionally, the results of Kirkland’s breath tests showing a blood alcohol concentration of at least 0.124 grams were admitted into evidence and provided independent support for the jury’s deter[*417] mination that Kirkland was guilty of DUI by having an alcohol concentration of 0.10 grams or more, in violation of OCGA § 40-6-391 (a) (5). Accordingly, we affirm the conviction.

Decided January 24, 2002. W. Keith Davidson, for appellant. Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors-General, for appellee.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.