HGN test in Georgia

2023The court continued: In the context of a traffic violation such as Driving Under the Influence, the State will have met its burden of proof as to the defendant’s criminal intent, if you should find beyond a reasonable doubt that the defendant intended to operate her vehicle at a time when (a) she was under the influence of alcohol to the extent that she was less safe to do so than she would have been if sober, or (b) that she had a blood or breath alcohol concentration of .08 grams or more[.] 13 See Hawkins v. State, 223 Ga. App. 34, 38 (1) ( 476 SE2d 803 ) (1996) (“Clearly HGN testing, althou

2023The court continued: In the context of a traffic violation such as Driving Under the Influence, the State will have met its burden of proof as to the defendant’s criminal intent, if you should find beyond a reasonable doubt that the defendant intended to operate her vehicle at a time when (a) she was under the influence of alcohol to the extent that she was less safe to do so than she would have been if sober, or (b) that she had a blood or breath alcohol concentration of .08 grams or more[.] 13 See Hawkins v. State, 223 Ga. App. 34, 38 (1) ( 476 SE2d 803 ) (1996) (“Clearly HGN testing, althou

2019See Parker v. State , 307 Ga. App. 61 , 64 (2), 704 S.E.2d 438 (2010). ("[u]nder law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment").

2019See Parker v. State , 307 Ga. App. 61 , 64 (2), 704 S.E.2d 438 (2010). ("[u]nder law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment").

2018Id. at 876 (1) (a), 611 S.E.2d 139 (Citations, punctuation, and footnote omitted.) And, applying those concepts to the context of an HGN test, the Court specifically noted that the test has two components, and that [a]lthough a trial court may judicially notice that the standardized HGN test generally has been established with verifiable certainty, the State, as the party offering the evidence, must still satisfy the second component of the foundation, that is, that the tester "substantially performed the scientific procedures in an acceptable manner." [Cit.] *357 Id. at 879 (1) (b) (ii), 611

2018Id. at 876 (1) (a), 611 S.E.2d 139 (Citations, punctuation, and footnote omitted.) And, applying those concepts to the context of an HGN test, the Court specifically noted that the test has two components, and that [a]lthough a trial court may judicially notice that the standardized HGN test generally has been established with verifiable certainty, the State, as the party offering the evidence, must still satisfy the second component of the foundation, that is, that the tester "substantially performed the scientific procedures in an acceptable manner." [Cit.] *357 Id. at 879 (1) (b) (ii), 611

2025In its order denying Newman’s motion to suppress, the trial court noted that “[t]he HGN test is generally accepted to have, ‘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[,]’” citing Spencer v. State, 302 Ga. 133, 136 ( 805 SE2d 886 ) (2017).

2025In its order denying Newman’s motion to suppress, the trial court noted that “[t]he HGN test is generally accepted to have, ‘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[,]’” citing Spencer v. State, 302 Ga. 133, 136 ( 805 SE2d 886 ) (2017).

2025Newman also argues that the trial court erred in finding that law enforcement had reasonable probable cause to detain him, that officers did not unlawfully prolong the traffic stop, that Newman consented to the blood test, and in applying the Harper v. State, 249 Ga. 519 ( 292 SE2d 389 ) (1982), standard to Newman’s OCGA § 24-7-702 challenge regarding an officer’s administration of the HGN test rather than Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 ( 113 SCt 2786 , 125 LE2d 469) (1993).

2025Newman also argues that the trial court erred in finding that law enforcement had reasonable probable cause to detain him, that officers did not unlawfully prolong the traffic stop, that Newman consented to the blood test, and in applying the Harper v. State, 249 Ga. 519 ( 292 SE2d 389 ) (1982), standard to Newman’s OCGA § 24-7-702 challenge regarding an officer’s administration of the HGN test rather than Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 ( 113 SCt 2786 , 125 LE2d 469) (1993).

2025See Garrison, 319 Ga. at 724 (3) n. 22 (we review a trial court’s evidentiary rulings for abuse of discretion); see also Sultan v. State, 289 Ga. App. 405, 408 (1) ( 657 SE2d 311 ) (2008) (trial court erred by failing to exclude HGN test, under Harper analysis, when officer failed to qualify defendant “as a suitable subject of an HGN test”). (b) The State also argues that the trial court erred by excluding the walk and turn and one-leg stand tests on Daubert grounds.

2025See Garrison, 319 Ga. at 724 (3) n. 22 (we review a trial court’s evidentiary rulings for abuse of discretion); see also Sultan v. State, 289 Ga. App. 405, 408 (1) ( 657 SE2d 311 ) (2008) (trial court erred by failing to exclude HGN test, under Harper analysis, when officer failed to qualify defendant “as a suitable subject of an HGN test”). (b) The State also argues that the trial court erred by excluding the walk and turn and one-leg stand tests on Daubert grounds.

2011Kirkland 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).

2011Kirkland 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).

2008While the officer testified that he was not sure of the number of clues needed to “pass” or “fail” the HGN test, his testimony that Preston exhibited four clues is uncontroverted. 12 Sieveking v. State, 220 Ga. App. 218, 219 (1) ( 469 SE2d 235 ) (1996) (citations omitted). 13 Autry v. State, 277 Ga. App. 305, 308 ( 626 SE2d 528 ) (2006); see also Stadnisky v. State, 285 Ga. App. 33, 37 (2) ( 645 SE2d 545 ) (2007) (“The validity of the seizure depends not on the officer’s actual state of mind but on an objective assessment of his actions in light of all the facts and circumstances confronting h

2008While the officer testified that he was not sure of the number of clues needed to “pass” or “fail” the HGN test, his testimony that Preston exhibited four clues is uncontroverted. 12 Sieveking v. State, 220 Ga. App. 218, 219 (1) ( 469 SE2d 235 ) (1996) (citations omitted). 13 Autry v. State, 277 Ga. App. 305, 308 ( 626 SE2d 528 ) (2006); see also Stadnisky v. State, 285 Ga. App. 33, 37 (2) ( 645 SE2d 545 ) (2007) (“The validity of the seizure depends not on the officer’s actual state of mind but on an objective assessment of his actions in light of all the facts and circumstances confronting h

2023As in Spencer v. State, “the evidence presented by the State in this case was insufficient 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.”22 22 See Spencer v. State, 302 Ga. 133, 138-139 ( 805 SE2d 886 ) (2017). 13 And, although Ghant was not charged with DUI per se, Farley’s testimony regarding her blood alcohol content was relevant to the DUI less safe charge.23 However, we need not determine if tri

2023As in Spencer v. State, “the evidence presented by the State in this case was insufficient 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.”22 22 See Spencer v. State, 302 Ga. 133, 138-139 ( 805 SE2d 886 ) (2017). 13 And, although Ghant was not charged with DUI per se, Farley’s testimony regarding her blood alcohol content was relevant to the DUI less safe charge.23 However, we need not determine if tri

2015See Harkleroad v. State, 317 Ga. App. 509, 512 (1) (c) ( 732 SE2d 278 ) (2012) (defendant’s speeding, bloodshot eyes, odor of alcohol and failing the HGN test gave officer probable cause to arrest defendant for DUI); see also Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) ( 478 SE2d 460 ) (1996) (“the results of the field sobriety tests constitute [ ] admissible evidence of probable cause to support [an] arrest”); compare Bostic v. State, 332 Ga. App. 604, 605 ( 774 SE2d 175 ) (2015) (driver’s admission that he had consumed one beer, his watery eyes, and a positive alco-sensor test, together

2015See Harkleroad v. State, 317 Ga. App. 509, 512 (1) (c) ( 732 SE2d 278 ) (2012) (defendant’s speeding, bloodshot eyes, odor of alcohol and failing the HGN test gave officer probable cause to arrest defendant for DUI); see also Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) ( 478 SE2d 460 ) (1996) (“the results of the field sobriety tests constitute [ ] admissible evidence of probable cause to support [an] arrest”); compare Bostic v. State, 332 Ga. App. 604, 605 ( 774 SE2d 175 ) (2015) (driver’s admission that he had consumed one beer, his watery eyes, and a positive alco-sensor test, together

2006Pierce’s contentions that the Intoxilyzer 5000 results and testimony about the HGN test were inadmissible were rejected by this court in State v. Pierce, supra, 266 Ga. App. at 234-238 (1)-(2), and his new argument for rejecting the HGN testimony, based upon State v. Tousley, 271 Ga. App. 874 ( 611 SE2d 139 ) (2005), also does not change that result. [Although the “law of the case” rule has been statutorily abolished, “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the

2006Pierce’s contentions that the Intoxilyzer 5000 results and testimony about the HGN test were inadmissible were rejected by this court in State v. Pierce, supra, 266 Ga. App. at 234-238 (1)-(2), and his new argument for rejecting the HGN testimony, based upon State v. Tousley, 271 Ga. App. 874 ( 611 SE2d 139 ) (2005), also does not change that result. [Although the “law of the case” rule has been statutorily abolished, “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the

2023When deciding whether an HGN test was administered properly under law enforcement guidelines, Georgia “courts have considered whether the arresting officer was trained sufficiently to give the test, experienced in administering the test, administered the test according to the standardized techniques and scored or 14 interpreted the test properly.” Duncan, 305 Ga. App. at 272 (1).

2023When deciding whether an HGN test was administered properly under law enforcement guidelines, Georgia “courts have considered whether the arresting officer was trained sufficiently to give the test, experienced in administering the test, administered the test according to the standardized techniques and scored or 14 interpreted the test properly.” Duncan, 305 Ga. App. at 272 (1).

2005State v. Pastorini, 222 Ga. App. at 319 ; Hawkins v. State, 223 Ga. App. at 38 (1). 8 In ruling on whether an HGN test was administered properly under law enforcement guidelines, our courts have considered whether the arresting officer was sufficiently trained to give the test, whether the officer was experienced in administering the test, whether the *880 officer administered the test according to the standardized techniques, and whether the officer scored or interpreted the test properly.

2005State v. Pastorini, 222 Ga. App. at 319 ; Hawkins v. State, 223 Ga. App. at 38 (1). 8 In ruling on whether an HGN test was administered properly under law enforcement guidelines, our courts have considered whether the arresting officer was sufficiently trained to give the test, whether the officer was experienced in administering the test, whether the *880 officer administered the test according to the standardized techniques, and whether the officer scored or interpreted the test properly.

2012See Hann v. State, 292 Ga. App. 719, 721 (2) ( 665 SE2d 731 ) (2008) (as trier of fact, atrial court did not clearly err when it credited officer’s version of events leading up to administration of HGN test and thus when it denied defendant’s motion to suppress the results of the test).

2012Given our rejection of Harkleroad’s arguments that the results of the tests performed on her should have been suppressed, there is no merit to her claim that the 12 See Hann v. State, 292 Ga. App. 719, 721 (2) ( 665 SE2d 731 ) (2008) (as triert of fact, a trial court did not clearly err when it credited officer’s version of events leading up to administration of HGN test and thus when it denied defendant’s motion to suppress the results of the test). 13 See Steinberg v. State, 286 Ga. App. 417, 420 (2) ( 650 SE2d 268 ) (2007) (officer’s training, defendant’s admission to ingesting alcohol, his

2010See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 8 The HGN test “is based upon the principle that horizontal gaze nystagmus, an involuntary movement of the eyes, can be caused by the ingestion of alcohol.” (Citation omitted.) Waits v. State, 232 Ga. App. 357, 360 (3) ( 501 SE2d 870 ) (1998). 9 At trial, the State played the DVD from Corporal Segrest’s patrol car, which depicted the traffic stop. 10 The label on the bottle indicated that the 90-pill prescription was filled on July 8, 2008, approximately 34 days prior to Duncan’s arrest. 11 (Citation and punctuation omitt

2010See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 8 The HGN test “is based upon the principle that horizontal gaze nystagmus, an involuntary movement of the eyes, can be caused by the ingestion of alcohol.” (Citation omitted.) Waits v. State, 232 Ga. App. 357, 360 (3) ( 501 SE2d 870 ) (1998). 9 At trial, the State played the DVD from Corporal Segrest’s patrol car, which depicted the traffic stop. 10 The label on the bottle indicated that the 90-pill prescription was filled on July 8, 2008, approximately 34 days prior to Duncan’s arrest. 11 (Citation and punctuation omitt

2005To the extent this misstatement was incorporated into our later opinions, including State v. Pierce, 266 Ga. App. at 238 (2), Lancaster v. State, 240 Ga. App. 359, 362-363 (3) ( 522 SE2d 30 ) (1999), and Tuttle v. State, 232 Ga. App. 530, 533 (3) ( 502 SE2d 355 ) (1998), we take this opportunity to limit those opinions as well. 9 See Compton v. State, 120 SW3d 375, 378-379 (A) (1) (Tex. App. 2003) (although the standardized techniques for the maximum deviation component of the HGN test mandates that *881 the stimulus he held stationary for a minimum of four seconds, the time taken to appropria

2005To the extent this misstatement was incorporated into our later opinions, including State v. Pierce, 266 Ga. App. at 238 (2), Lancaster v. State, 240 Ga. App. 359, 362-363 (3) ( 522 SE2d 30 ) (1999), and Tuttle v. State, 232 Ga. App. 530, 533 (3) ( 502 SE2d 355 ) (1998), we take this opportunity to limit those opinions as well. 9 See Compton v. State, 120 SW3d 375, 378-379 (A) (1) (Tex. App. 2003) (although the standardized techniques for the maximum deviation component of the HGN test mandates that *881 the stimulus he held stationary for a minimum of four seconds, the time taken to appropria

2019See Parker v. State , 307 Ga. App. 61 , 64 (2), 704 S.E.2d 438 (2010). ("[u]nder law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment").

2019See Parker v. State , 307 Ga. App. 61 , 64 (2), 704 S.E.2d 438 (2010). ("[u]nder law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment").

2018Accordingly, the ... admission of [the] testimony regarding [a] 0.25 BAC was not harmless." (footnotes omitted) ); see also Webb v. State , 277 Ga. App. 355 , 357 (1), 626 S.E.2d 545 (2006) (holding that numerical evidence of blood-alcohol content was relevant to proving that defendant was driving under the influence to the extent that she was a less-safe driver). 20 See Spencer , 302 Ga. at 138 -39 , 805 S.E.2d 886 (finding that the State presented insufficient evidence to establish scientific reliability and validity of correlation between the number of clues on an HGN test and numeric blood

2018Accordingly, the ... admission of [the] testimony regarding [a] 0.25 BAC was not harmless." (footnotes omitted) ); see also Webb v. State , 277 Ga. App. 355 , 357 (1), 626 S.E.2d 545 (2006) (holding that numerical evidence of blood-alcohol content was relevant to proving that defendant was driving under the influence to the extent that she was a less-safe driver). 20 See Spencer , 302 Ga. at 138 -39 , 805 S.E.2d 886 (finding that the State presented insufficient evidence to establish scientific reliability and validity of correlation between the number of clues on an HGN test and numeric blood

2024See, e.g., Walsh v. State, 303 Ga. 276, 283-284 (811 SE2d 353) (2018) (HGN test and procedures reached scientific state of verifiable certainty under Harper such that trial court could take judicial notice of their reliability).

2024See, e.g., Walsh v. State, 303 Ga. 276, 283-284 ( 811 SE2d 353 ) (2018) (HGN test and procedures reached scientific state of verifiable certainty under Harper such that trial court could take judicial notice of their reliability).

1996Sieveking concedes the officer could testify at trial about the results of the HGN test and that those results “show a symptom in *219 dicative of, although not determinative of, the presence of alcohol.” Manley v. State, 206 Ga. App. 281, 282 ( 424 SE2d 818 ) (1992).

1996Sieveking concedes the officer could testify at trial about the results of the HGN test and that those results “show a symptom in *219 dicative of, although not determinative of, the presence of alcohol.” Manley v. State, 206 Ga. App. 281, 282 ( 424 SE2d 818 ) (1992).

2025As a gatekeeper, the trial court was charged with considering White’s “qualifications to testify as to the HGN test as well as the relevance and reliability of the proffered testimony based on the Daubert standard[.]” Garrison, 319 Ga. at 727 (3) (c) (i); accord Newman, 375 Ga. App. at 456-457 (4).

2025As a gatekeeper, the trial court was charged with considering White’s “qualifications to testify as to the HGN test as well as the relevance and reliability of the proffered testimony based on the Daubert standard[.]” Garrison, 319 Ga. at 727 (3) (c) (i); accord Newman, 375 Ga. App. at 456-457 (4).

2024See also Culler, 351 Ga. App. at 27 (2) (a) (vacating and remanding for trial court to consider further questions regarding administration of the HGN test); Martinez v. State, 347 Ga. App. 675, 685 (C) (ii) ( 820 SE2d 507 ) (2018).

2024See also Culler, 351 Ga. App. at 27 (2) (a) (vacating and remanding for trial court to consider further questions regarding administration of the HGN test); Martinez v. State, 347 Ga. App. 675, 685 (C) (ii) ( 820 SE2d 507 ) (2018).

2018See Monroe v. State , 272 Ga. 201 , 204 (n. 4), 528 S.E.2d 504 (2000) ; Caldwell v. State , 260 Ga. 278 , 285 (1) (b), 393 S.E.2d 436 (1990).

2018See Monroe v. State , 272 Ga. 201 , 204 (n. 4), 528 S.E.2d 504 (2000) ; Caldwell v. State , 260 Ga. 278 , 285 (1) (b), 393 S.E.2d 436 (1990).

2018See Fielding v. State , 278 Ga. 309 , 311 (3), 602 S.E.2d 597 (2004) ("If, after qualifying a witness as an expert but without a formal tender, counsel proceeds to ask for expert opinion evidence, the trial court has tacitly or impliedly accepted the witness as an expert.") (Emphasis supplied.) Although the trial court made a statement from the bench regarding the officer's credibility, the court did not address the officer's ability to testify to his conclusion that Walsh's glasses did not impact the results of the test.

2018See Fielding v. State , 278 Ga. 309 , 311 (3), 602 S.E.2d 597 (2004) ("If, after qualifying a witness as an expert but without a formal tender, counsel proceeds to ask for expert opinion evidence, the trial court has tacitly or impliedly accepted the witness as an expert.") (Emphasis supplied.) Although the trial court made a statement from the bench regarding the officer's credibility, the court did not address the officer's ability to testify to his conclusion that Walsh's glasses did not impact the results of the test.

2017See generally Stewart v. State, 280 Ga. App. 366, 368-369 (2) ( 634 SE2d 141 ) (2006); State v. Pastorini, 222 Ga. App. 316, 318-319 (2) ( 474 SE2d 122 ) (1996). 3 In the case before us, the only witnesses at the hearing on the motions in limine were the police officers, and only the city police officer testified with respect to “the Romberg balance [sic].” He testified that the subject is instructed to shut his eyes, tilt his head backwards, and estimate the passage of 30 seconds.

2017See generally Stewart v. State, 280 Ga. App. 366, 368-369 (2) ( 634 SE2d 141 ) (2006); State v. Pastorini, 222 Ga. App. 316, 318-319 (2) ( 474 SE2d 122 ) (1996). 3 In the case before us, the only witnesses at the hearing on the motions in limine were the police officers, and only the city police officer testified with respect to “the Romberg balance [sic].” He testified that the subject is instructed to shut his eyes, tilt his head backwards, and estimate the passage of 30 seconds.