Hawkins v. State, A96A2126

Citation476 S.E.2d 803,223 Ga.App. 34
Decision Date01 October 1996
Docket NumberNo. A96A2126,A96A2126
PartiesHAWKINS v. The STATE.
CourtUnited States Court of Appeals (Georgia)

Spruell & Dubuc, Billy L. Spruell, Atlanta, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, Walter C. Howard, Assistant Solicitors, for appellee.

ELDRIDGE, Judge.

Hawkins appeals from a jury's verdict and his subsequent sentence on charges of driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391(a)(1), and failure to maintain a lane, OCGA § 40-6-48; appellant was acquitted of an additional charge of driving with an unlawful alcohol concentration, OCGA § 40-6-391(a)(4).

Viewed in favor of the verdict, on Thursday, March 16, 1995, appellant, a resident of Florida, attended a business dinner reception in downtown Atlanta at which he drank alcohol before, during, and after dinner. At about 9:15 p.m., appellant got into a late model Crown Victoria and attempted to drive to the Wyndham Hotel on Peachtree Street where appellant was staying. Appellant ended up driving westbound on I-285 near the Peachtree Industrial exit, with his car weaving from one side of the lane to the other. Appellant lost control of the car, crossed over the left traffic lane, and hit the median barricade; the Crown Victoria careened off of the cement barricade and ricocheted back into the traffic lanes, finally coming to a rest backwards in the center lane, having completed a 180 degree turn. A wrecker driver, who fortuitously happened to be behind appellant, stopped and towed the Crown Victoria to the safety lane on the right-hand side of the roadway; appellant had exited the vehicle before the towing and thereafter asked the driver to forego contacting the police on the driver's dispatch radio. However, the wrecker driver, who noticed that appellant's eyes were glassy and that he smelled strongly of alcohol, contacted the police.

Upon arrival, the police officer noted that appellant was swaying on his feet and that he smelled of alcohol. Appellant was asked to submit to a series of field sobriety tests and was told that participation in the tests was voluntary; appellant agreed to the evaluations. The officer then asked the appellant to recite the "ABCs," as well as perform the "walk and turn" and the "leg lift" evaluations. In addition, the officer conducted a horizontal gaze nystagmus examination which consisted of passing a pen in front of the appellant's eyes and determining from an observation of the movements of each eye whether there was impairment. Appellant was not able to satisfactorily perform any of the field sobriety evaluations, including the nystagmus test which showed impairment. Thereafter, appellant was arrested, the implied consent warnings were given, and appellant agreed to a breath test; of the two samples blown into the intoximeter, the first registered a .172 and the second a .183. Held:

1. Appellant challenges the admissibility of field sobriety tests in general, and the horizontal gaze nystagmus (HGN) test in particular. Appellant claims that field sobriety tests have not been generally accepted in the scientific community as accurate indicators of impairment, and thus, the lack of expert foundational testimony in the case sub judice made the admission of the tests reversible error. Further, citing this Court's decision in Manley v. State, 206 Ga.App. 281, 424 S.E.2d 818 (1992), as well as the line of cases that followed the Manley rationale, appellant asks this Court to "come to grips" with the admissibility of field sobriety tests; appellant asserts that our decisions have failed to clearly address the foundational requirements for the admissibility of these tests, especially in instances such as the case sub judice, where a trial court does not first receive expert testimony as a foundation for admission pursuant to the standards enunciated in Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982). See Sieveking v. State, 220 Ga.App. 218, 469 S.E.2d 235 (1996); Lorio v. State, 216 Ga.App. 255, 454 S.E.2d 164 (1995); Hassell v. State, 212 Ga.App. 432, 442 S.E.2d 261 (1994); Manley, supra at 282, 424 S.E.2d 818; Foster v. State, 204 Ga.App. 632, 420 S.E.2d 78 (1992).

Under this same enumeration of error, appellant also contends that evidence of field sobriety tests should not be admissible until a foundation is laid regarding the proper administration of the tests and cites Harper, supra, as standing for this principle; moreover, appellant contends that even if a proper foundation is laid pursuant to the standards of Harper, field sobriety tests are still inadmissible as being irrelevant, since the tests do not aid a trier of fact in a quantitative determination of the extent of a driver's impairment in relation to the ability to drive safely.

A review of the progression of case law cited by appellant has persuaded this Court to make clear our position regarding the foundational requirements for the admissibility of field sobriety tests in general, and the HGN test in particular.

As this Court has repeatedly stated, in determining whether a given scientific principle or technique is competent evidence in a court of law, trial courts have frequently looked to see whether the technique has gained general acceptance in the scientific community; however, recognizing that problems exist in determining admissibility on this basis, including the frequent presence of a wide variation in "expert" opinion, simply "counting heads" in the scientific community has been disproved as a method for determining admissibility. Caldwell v. State, 260 Ga. 278, 285, 393 S.E.2d 436 (1990); Harper, supra; Jordan v. Ga. Power Co., 219 Ga.App. 690, 693, 466 S.E.2d 601 (1995); Manley, supra at 281, 424 S.E.2d 818; Mitchell v. State, 200 Ga.App. 146, 149, 407 S.E.2d 115 (1991). Instead, the determination of the admissibility of a new scientific process lies with the trial court which decides whether the procedure or technique in question has reached a stage of verifiable certainty or "rests upon the laws of nature." Harper, supra at 526, 292 S.E.2d 389. This determination may be based on an evaluation of expert testimony and/or an evaluation of exhibits, treatises, or opinion from other jurisdictions. Id. The significant point is that a determination as to whether a new technology or procedure should be admissible is based on all of the evidence available to the trial court, of which only one factor is the procedure's general acceptance in the scientific community.

Further, "[o]nce a [technology or] 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." (Emphasis supplied.) Id.; Rolader v. State, 202 Ga.App. 134, 142, 413 S.E.2d 752 (1991). In other words, once a procedure has been utilized for a significant period of time, and expert testimony has been received thereon in case after case, the trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace. See Agnor Ga. Evidence, Matters of Common Knowledge, § 16-2, pp. 475-476. Keeping these principles in mind, we turn to the merits of appellant's contentions as they relate to the facts of the case sub judice.

With regard to the "ABCs," "walk and turn," and "leg lift" field sobriety tests given appellant, the word, "tests" is a misnomer; these are physical dexterity exercises that common sense, common experience, and the "laws of nature" show are performed less well after drinking alcohol. The screening of these gross motor skills is hardly the type of "scientific principle or technique" to which Harper referred, and this Court will not hold these physical manifestations of impairment, which could be as obvious to the layperson as to the expert, to such a standard of admissibility. Harper, supra at 524, 292 S.E.2d 389; State v. Pastorini, 222 Ga.App. 316, 474 S.E.2d 122 (1996); Crawford v. City of Forest Park, 215 Ga.App. 234, 450 S.E.2d 237 (1994); accord Mendoza v. State, 196 Ga.App. 627, 630, 396 S.E.2d 576 (1990) (Deen, P. J., concurring specially). Appellant's contentions regarding the subjective nature of the evaluation of these tests would be fodder for cross-examination, but would not impact on the validity of the tests, themselves, in detecting impairment. Pastorini, supra. Thus, the trial court in the case sub judice did not err in allowing the officer to testify regarding these field sobriety tests without first requiring expert testimony as a foundation for admission.

The HGN test about which appellant complains herein is based on the well-known and medically accepted principle that nystagmus can be caused by the ingestion of alcohol: "Jerk nystagmus ... is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates...." The Merck Manual of Diagnosis and Therapy, p. 1980 (14th ed.1982). For over 20 years, the relationship between nystagmus and alcohol has been recognized by highway safety agencies as a tool to detect those illegally driving under the influence of alcohol. Burns & Moskowitz, Psychophysical Tests for DWI Arrest, U.S. Department of Transportation, Rep. No. DOT-HS-802-424 (1977). Further, the National Highway Traffic Safety Administration (NHTSA) has endorsed the HGN test as the most sensitive in determining alcohol impairment. Schweitz & Snyder, Field Evaluation of a Behavioral Test Battery for DWI, U.S. Department of Transportation, Rep. No. DOT-HS-806-475 (1983); see also Turkula, Drug and Alcohol Testing, § 6.06, pp. 6-12 to 6-14. HGN testing has been used by...

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