Pursuant to Georgia law, a trial judge may decide whether a procedure in question has reached a stage of scientific certainty. The trial court makes this determination based on evidence presented to it during trial, or based on exhibits, treatises, or cases from other jurisdictions. The trial court ultimately decides based on the evidence available to him rather than by calculating the consensus in the scientific community. This issue came up before the Georgia Supreme Court this fall in the context of a DUI appeal. It could play a role in Illinois DUI proceedings at some time as well.
Following a jury trial, a Georgia woman was convicted of DUI and possession of an open container. She appealed the DUI. The appeals court affirmed, and the Georgia Supreme Court granted certiorari to consider whether the intermediate court erred in holding that the trial court properly admitted the police officer’s testimony correlating her horizontal gaze nystagmus (HGN) test results with her blood alcohol content (BAC). The Georgia Supreme Court reversed her conviction because the testimony lacked a sufficient foundation.
The defendant was pulled over for a broken headlight, and the officer observed that her speech was slurred and she smelled of alcohol. Moreover, she was wearing a wristband from a bar, and there was a plastic cup in the center console that seemingly contained alcohol. The officer administered an HGN test, which revealed four out of six cues suggesting impairment.
At trial, the officer was asked on direct about the HGN test. He testified that based on his training and experience, four of six cues suggests a BAC equal to or greater than .08. Defense counsel objected, which the trial court overruled following a discussion.
The prosecutor continued his questioning, asking the officer whether there was a correlation between HGN test results and a suspect’s BAC. The officer repeated that generally, four out of six cues suggests an alcohol concentration equal to or greater than .08.
The defendant was convicted. On appeal, she argued that the trial court erred in allowing the aforementioned testimony. The appeals court affirmed.
The appeals court agreed that an officer identifying a specific BAC based on the HGN test should be excluded, but it reasoned that since the officer did not identify a specific BAC for the defendant, but simply testified that finding four out of six clues typically exceeds a BAC of .08, the trial court could allow the testimony.
The Georgia Supreme Court held the appeals court erroneously failed to address its former holding that using an HGN test to identify a specific BAC has not been recognized as reaching the required scientific stage of certainty.
The appeals court also failed to examine the reasoning of the many jurisdictions that have rejected the use of the HGN test for the purpose used below. Nor did it address its former holding requiring the recognition of a procedure in a substantial number of courts before a trial court may judicially notice, without receiving evidence, that the procedure has been scientifically established.
The Georgia Supreme Court found no distinction between testimony that a driver’s BAC is “estimated” at 0.25 grams and the testimony presented that the results of the defendant’s HGN test generally indicate a BAC “equal to or greater than .08.” In effect, these “linguistic gymnastics” allow the prosecution to present to the jury a BAC that is conclusive without satisfying the required evidentiary standard.
The state high court concluded that the evidence presented by the prosecution was insufficient to establish the scientific validity. The court therefore abused its discretion in admitting this evidence. The judgment was reversed.
If there was problematic testimony introduced in your DUI case in Illinois, you should speak with an experienced DUI lawyer as soon as practicable. Harvatin Law Offices, PC zealously represents DUI defendants throughout the state of Illinois. To learn more, and to set up a free initial consultation, contact the office online or call 217.525.0520.
More Blog Posts:
Illinois Supreme Court Reverses Grant of DUI Defendant’s Suppression Motion, Illinois DUI Lawyer Blog, February 1, 2018
Washington Supreme Court Holds Random Urine Testing of DUI Probationer is Constitutionally Sound, Illinois DUI Lawyer Blog, November 2, 2017.
State Appeals Court Upholds Polo Mogul’s DUI Manslaughter Conviction, Illinois DUI Lawyer Blog, October 2, 2017.