Dawn Denise Tousley stands accused in the State Court of Gwinnett County of driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (1); driving under the influence of alcohol while having an alcohol concentration of0.08ormore, OCGA§ 40-6-391 (a) (5); and failure to maintain lane, OCGA §§ 40-6-1; 40-6-48. After a hearing, the trial court granted Tousley’s motion to exclude evidence regarding her performance on the horizontal gaze nystagmus (HGN) test, finding that the arresting officer failed to administer the test properly. The trial court concluded that, without the HGN test results, the arresting officer lacked probable cause to arrest Tousley for DUI and accordingly granted her motion to suppress the results of a breath test administered after the arrest. The State appeals pursuant to OCGA § 5-7-1 (a) (4). For the following reasons, we reverse the trial court’s ruling to the extent it excluded the HGN test results, vacate the order suppressing the breathalyzer test results, and remand.
Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them.
Monas v. State,
Viewed in the light most favorable to the trial court’s findings, the record shows the following facts. At approximately 11:50 p.m. on February 21, 2003, an officer observed the wheels of the vehicle Tousley was driving cross the lane divider. The officer activated his lights, which also activated the patrol car’s videocamera. The officer then observed Tousley’s wheels cross the lane divider a second time and saw her flash her high beams at the car in front of her, which the officer interpreted as a signal that Tousley wanted to travel faster than that car. In response to the officer’s signal, Tousley pulled over in a parking lot.
When the officer approached Tousley’s car, he noticed a strong odor of alcohol coming from Tousley’s breath. Tousley complied with the officer’s request for her license and proof of insurance. Initially, Tousley denied she had been drinking but later admitted she had had two beers. According to the officer’s observations, Tousley’s face was not flushed; her eyes were not bloodshot, although they were “watery”; her speech was not “slurred, thick, or mumbled”; she walked normally; did not fumble with her license; and her behavior and demeanor were otherwise “normal.” The officer administered the HGN test to Tousley and determined that Tousley gave all of the six clues for intoxication. The officer then conducted the alco-sensor test, which was positive for the presence of alcohol.
Based on Tousley’s failure to maintain her lane while driving, evidence that she had consumed alcohol (the odor, the positive alco-sensor, and her admission), and the results of the HGN test, the officer concluded Tousley was intoxicated to the extent it was less safe for her to drive. The officer placed Tousley under arrest for DUI; Tousley later consented to a breathalyzer.
At the hearing on Tousley’s evidentiary motion, the officer testified about his training in administering the standardized HGN test, including the standardized field sobriety course and several advanced DUI seminars. The officer also testified about his experience administering and scoring HGN tests approximately 200 times. The officer described the three components of the standardized HGN test: lack of smooth pursuit, distinct nystagmus at maximum deviation, and angle of onset of nystagmus prior to 45 degrees. Each component of the standardized HGN test can yield one clue for each eye, for a total possible score of six clues. The officer testified that, according to Georgia’s DUI manual, if an officer does not perform an HGN test in the prescribed way then the validity of the results will be compromised. The officer conceded that in Tousley’s case he did not perform the HGN test exactly as he had been trained to do in that he failed to ask Tousley if she wore contacts or eyeglasses. The officer testified that during the “maximum deviation” component of the HGN test an officer must hold the stimulus at the maximum point for at least four seconds because “some people [’s eyes] may bounce before four seconds and that would give [the officer] an incorrect clue.” After reviewing the videotape, the officer testified that he believed he did hold the stimulus at the maximum deviation for a minimum of four seconds, in accordance with law enforcement guidelines.
From its review of the videotape, however, the trial court found that the officer made “two passes within the whole sequence of passes that were in a range of three to four seconds where the pen was held out____[There was] perhaps one where the pen was held out for a total of four seconds in a stationary position.” The trial court concluded that the officer was not “keeping [the stimulus] out long enough” and, based on this, “the HGN test could not be used.” Considering only Tousley’s driving and the evidence of the presence of alcohol (the odor on her breath and the results of the alco-sensor), the trial court concluded that the officer lacked probable cause to arrest Tousley for DUI. The trial court accordingly granted Tousley’s motion to suppress the breathalyzer results.
1. The State contends that as a matter of law any errors in the administration of an HGN test go only to the weight of the results, and not to their admissibility, and that
(a)
The foundation for the admission of evidence based on a scientific principle or technique.
We note initially that in Georgia testimony regarding a detainee’s performance on an HGN test is considered a special kind of evidence, specifically, evidence based on a scientific principle or technique.
State v. Pastorini,
A seminal case in the application of the first component of the foundation for the admission of evidence based on a scientific principle or technique was
Harper v. State,
With regard to the importance of the second component of the foundation, the requirement that the person performing the test “substantially performed the scientific procedures in an acceptable manner,” 3 one treatise explains:
If the basic science and techniques used by the expert are reliable, the fact that the expert’s conclusions are weak or subject to a certain margin of error usually goes to weight, not admissibility. But if the expert substantially departed from principles and procedures that are the basis for the evidence’s usual reliability, the evidence should be declined. For example, although the basic principles and procedures for DNA typing have reached a scientific stage of verifiable certainty, this presumes that the expert uses the accepted principles and procedures in the manner that produces the technique’s reliability. If the expert significantly departsfrom these principles or procedures, he is doing something other than established, approved DNA typing.
(Punctuation and footnotes omitted.) Paul S. Milich, Ga. Rules of Evidence, § 15.9, p. 311 (2nd ed.). Like DNA test results, HGN test results are evidence based on a scientific principle or technique and, consequently, are subject to this two-part foundation. 4
(b) Application of the foundation for the admission of evidence based on a scientific principle or technique to HGN tests.
(i) With regard to the first component of this foundation for the scientific procedure at issue here, we have held that “the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community” meeting the
Harper v. State
standard
5
and “is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” (Citation omitted.)
State v. Pierce,
(ii) Although 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.”
7
As we have held, “field sobriety tests must be administered properly under law enforcement guidelines.”
Hawkins v. State,
In this case, the trial court excluded the HGN test results after finding the officer failed to administer the test in accordance with the applicable guidelines. Although the trial court’s specific findings are not entirely clear from the appealed order or from the hearing transcript, the record suggests the trial court found fault with the officer’s administration of the “maximum deviation” component of the HGN test, which can, and in this case did, account for two out of the six possible clues of intoxication under law enforcement guidelines for the HGN test. The record does not show that the trial court found any error with regard to the remaining two components of the HGN test, which can, and in this case did, account for four out of the six clues. Under law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment.
Sieveking v. State,
(c) Because the State’s enumeration of errors raises the issue of arguments which go to the weight, rather than the admissibility, of HGN test results, we note that after evidence regarding HGN test results is properly admitted, a defendant may attempt to persuade the factfinder not to assign the results much weight, as by attacking the reliability of HGN testing generally or the reliability of the particular results in his or her case. “Admissibility of evidence is to be decided by the judge. The weight to be given evidence, once admitted, is for the [factfinder].” (Citation and punctuation omitted.)
Ross v. State,
To attack the reliability of HGN testing generally, a defendant may offer evidence to show that in practice HGN testing is prone to human error. As we have observed,
[c]learly HGN testing, although far from a complex procedure, may be subject to human error in its administration or interpretation; however, such potential for error does not impact on the validity of the HGN test [generally]; no procedures are infallible. An accused may always introduce evidence of the possibility of error.
(Citations and punctuation omitted.)
Hawkins v. State,
2. The State contends the trial court erred when it granted Tousley’s motion to suppress the breath test results. After excluding the HGN test results, the trial court in this case found the remaining evidence of impairment, that is, Tousley’s driving, the odor of alcohol on her breath, and the positive alco-sensor, did not amount to probable cause to arrest.
The test of probable cause requires merely a probability — less than a certainty butmore than a mere suspicion or possibility. Sufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.
(Citation omitted.)
Malone v. State,
Judgment vacated and case remanded.
Notes
Such evidence is sometimes called “novel scientific evidence,”
Caldwell v. State,
In the context of evidentiary foundations,
the most important procedural rule is that the proponent of an item of evidence must ordinarily lay the foundation before formally offering the item into evidence____Whenever [e] vidence law makes proof of a fact or event a condition to the admission of an item of evidence, that fact or event is part of the foundation for the evidence’s admission.
Edward J. Imwinkelried et al., Criminal Evidentiary Foundations, Chapter 1 (B) (1), pp. 1-2 (1997).
Johnson v. State,
For the foundation required for HGN test results in other states, see
State v. City of Mesa,
Harper v. State,
Johnson v. State,
Id.
In
Hawkins v. State,
we recognized “that field sobriety tests must be administered properly under law enforcement guidelines” and that “a challenge to the method by which an admissible test is administered would be the subject of a timely motion or objection at trial and a subsequent analysis thereon by the trial court on a case by case basis.”
See
Compton v. State,
See Division 1 (b) (ii), supra.