Bravo v. The State

• Decision Date: 28 May 2010
• Docket Number: No. A10A0363.,A10A0363.
• Citation: 696 S.E.2d 79,304 Ga.App. 243
• Parties: BRAVOv.The STATE.
• Court: Georgia Court of Appeals

304 Ga.App. 243

696 S.E.2d 79

BRAVOv.The STATE.

No. A10A0363.

Court of Appeals of Georgia.

May 28, 2010.

John F. Nebl, Eatonton, for appellant.

Robert Stokely, Solicitor-General, Natalie Ashman, Assistant Solicitor-General, for appellee.

DOYLE, Judge.

A Coweta County jury found William James Bravo guilty of driving under the influence of alcohol to the extent that it was less safe to drive (“DUI less safe”) ¹ and failure to maintain lane.² He appeals, arguing that (1) the trial court erred by denying his motion in limine to exclude the arresting officer's testimony regarding his estimate of Bravo's blood alcohol concentration (“BAC”) based on a horizontal gaze nystagmus (“HGN”) evaluation, and (2) trial counsel was ineffective by failing to advise him of his right to testify at trial or to remain silent. We reverse, for reasons that follow.

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. When we review a trial court's decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court's findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court's findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.³

The evidence shows that on January 19, 2008, Coweta County Sheriff's Deputy James Nash observed the vehicle Bravo was driving weave across the roadway, crossing the centerline and the right fog line multiple times. Nash initiated a traffic stop. Bravo exited his vehicle, and the deputy advised him three times to get back in the car before Bravo complied. As he stood beside Bravo's car, Nash noted a strong odor of alcohol coming from inside the vehicle. Nash asked Bravo how much he had to drink, but Bravo did not respond, instead insisting that he was “just going home.”

Bravo complied with Nash's request to exit the vehicle, but he had to use the driver's door and the car to support himself as he did so. The deputy smelled a “very strong” odor of an alcoholic beverage coming from Bravo's breath, and he noted that Bravo's eyes were glassy and bloodshot, his clothing was in disarray, and he was unsteady on his feet. An alco-sensor test detected the presence of alcohol on Bravo's breath. Nash performed an HGN test, which consisted of passing an object in front of Bravo's eyes horizontally and determining, based on an observation of the jerking movements, or nystagmus, of each eye, whether there was impairment. Bravo exhibited all six clues for intoxication on the HGN test. Based on the HGN test and a vertical nystagmus test, Nash concluded that Bravo was under the influence of alcohol to an elevated extent. Although Bravo initially agreed to perform the straight line walk test, he then indicated that he could not do so nor could he perform the one-leg stand test because he had undergone knee surgery in the past. Nash then placed Bravo under arrest and read to him the implied consent warning for individuals over 21. Bravo refused to take a state-administered test of his BAC.

Bravo was charged with DUI less safe and failure to maintain lane. Before trial, he filed a motion in limine seeking to exclude any testimony from Nash regarding his opinion of Bravo's numeric BAC derived from the HGN test on the grounds that it was not based upon scientific evidence and was contrary to Nash's training. The trial court heard argument of counsel immediately before trial, but deferred ruling on the motion. During direct examination of Nash, the State tendered him as an expert in “DUI and alcohol detection,” without objection from Bravo. Following a portion of Nash's testimony, the trial court denied Bravo's motion in limine. The trial court then gave the jury the pattern charge on expert testimony, at which time defense counsel objected to qualifying Nash as an expert in determining a precise numeric BAC based on HGN testing. Nash then testified that while performing the sixth clue of the HGN field test on Bravo, he estimated that Bravo's BAC was 0.25 grams based on a mathematical calculation that included Bravo's angle of onset of nystagmus. Nash further testified that based on his training, experience, and observations, he believed that Bravo was under the influence of alcohol to the extent he was a less safe driver.

Bravo did not testify, but he presented testimony from an employee of a restaurant who served him the night of his arrest. The employee testified that she served Bravo one shot and two beers over a two and a half hour period; when he left the restaurant, Bravo's speech was not slurred, his eyes were not glassy or bloodshot, he was not stumbling or staggering, and he gave her no indication that he was going to be an unsafe driver when he left the restaurant. Bravo also submitted the testimony of Larry Mitchell, a friend and former agent for the Federal Bureau of Investigation, who testified that Bravo spoke very slowly with a southern dialect. Mitchell also testified that Bravo had “blown out knees” that caused him to “wobble ... side-to-side” when he walked and that Bravo had to hold onto something in order to stand up.

After initially indicating that it was unable to reach a unanimous verdict, the jury continued deliberating and found Bravo guilty on both counts. This appeal follows the trial court's denial of Bravo's motion for new trial.

1. Bravo argues that the trial court erred by denying his motion in limine to exclude Nash's opinion of his specific numeric BAC based on the HGN test he administered to Bravo. We agree.

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. The foundation for evidence based on a scientific principle or technique requires two findings regarding the evidence's reliability: such evidence is admissible upon a showing by the party offering the evidence that (1) the general scientific principles and techniques involved ... are valid and capable of producing reliable results, and (2) the person performing the test substantially performed the scientific procedures in an acceptable manner.⁴

The trial judge should

decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or ... whether the procedure rests upon the laws of nature. The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions.⁵

However, “[o]nce 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.” ⁶

Here, the trial court denied Bravo's motion in limine to exclude Nash's opinion regarding his specific BAC after reviewing case law, relying specifically on Webb v. State.⁷ In Webb, the defendant appealed the denial of her motion in limine to exclude the arresting officer's testimony of her numeric BAC, which the officer based on an HGN test, arguing that the evidence was irrelevant because she was charged with DUI less safe, not DUI per se.⁸ This Court affirmed, holding that “the evidence of Webb's blood alcohol level was probative of the ‘less safe’ DUI charge.” ⁹ The opinion is very clear, however, that Webb's objection to the evidence at issue was based on relevancy,¹⁰ as opposed to the argument in the instant case, which is whether Nash's method of estimating a specific numeric BAC based on an HGN test can “be verified with such certainty that it is competent evidence in a court of law.” ¹¹ Indeed, as the trial court noted, the Webb decision specifically stated that

[w]e do not wish to imply that a trial court must always admit numerical evidence of a defendant's blood alcohol content adduced by an HGN test.... The HGN test is a 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. It may be an open question, however, whether the HGN test has reached a state of verifiable certainty in the scientific community as a basis for determining the numerical level of a driver's blood alcohol level.¹²

Thus Webb does not stand for the proposition that the method of using an HGN test to establish a person's specific numeric BAC is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community. And the State has not cited to any other case, in Georgia or otherwise, that does so.¹³ Certainly, it is well settled in Georgia “that the 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.” ¹⁴ And we have previously concluded that field sobriety tests, including the HGN, are admissible to show that a detainee's BAC exceeds a particular impairing level.¹⁵ But the technique of using an HGN test to determine whether an individual is impaired by alcohol is not the same as the method that Nash employed here, which is to identify a specific numeric BAC (in this...