Kirkland v. State, A01A1906.
| Decision Date | 24 January 2002 |
| Docket Number | No. A01A1906.,A01A1906. |
| Citation | 559 S.E.2d 161,253 Ga. App. 414 |
| Parties | KIRKLAND v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
W. Keith Davidson, Snellville, for appellant.
Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Asst. Solicitors-General, for appellee.
Stephen Lee Kirkland was convicted of driving under the influence of alcohol ("DUI") by having an alcohol concentration of 0.10 grams or more, OCGA § 40-6-391(a)(5), and of exceeding the maximum posted speed limit, OCGA § 40-6-181. He was acquitted of DUI to the extent that he was a less safe driver, OCGA § 40-6-391(a)(1). He was sentenced to twelve months on probation with the first thirty days to be served in work release, eighty hours of community service, and two fines in the total amount of $1,200. The trial court denied his motion for new trial, and this appeal followed. Kirkland's sole enumerated error is that the court erred in permitting a police officer to testify as to his opinion of what the six clues of the horizontal gaze nystagmus ("HGN") test indicate about a person's level of intoxication. We affirm the conviction.
Viewed in the light most favorable to the jury's verdict, the record shows that on May 14, 1999, at approximately 4:39 a.m., Officer Jack W. Moody of the Gwinnett County Police Department stopped the car Kirkland was driving for speeding. Kirkland produced his driver's license, but he told the officer that the car was not his and that he could not find an insurance card. Officer Moody testified that Kirkland's eyes appeared bloodshot and glazed, and that his breath smelled of alcohol. Officer Moody directed Kirkland to perform field sobriety evaluations. First, the officer asked Kirkland to recite the alphabet, and Kirkland complied. Next, Officer Moody administered the HGN test. The officer testified that Kirkland exhibited all six clues indicating that he was intoxicated. He further testified that based on his training and vast experience in DUI investigation, it was his opinion that generally when a person exhibits all six clues, that person's blood alcohol concentration would likely be 0.10 grams or greater.
Officer Moody asked Kirkland to perform the walk and turn and the one-leg stand evaluations, but Kirkland complained of a knee problem. Consequently, Officer Moody did not require Kirkland to perform those evaluations but attempted to administer an alco-sensor test. Kirkland refused to supply a breath sample. Officer Moody testified that based on his observation of Kirkland, the odor of alcohol from Kirkland's breath, and Kirkland's performance on the field sobriety evaluations, he believed that the defendant was a less safe driver due to his level of intoxication. The officer arrested Kirkland for DUI and immediately read him the Georgia Implied Consent Notice. Kirkland then consented to a breath test.
Officer Moody took Kirkland to the Gwinnett County jail. He administered a breath test using the Intoxilyzer 5000. The first breath sample, taken at 5:22 a.m., indicated a blood alcohol concentration of 0.124 grams, and a second sample at 5:25 a.m. showed a concentration of 0.127 grams. The jury convicted Kirkland of DUI with an alcohol concentration of 0.10 grams or more and of speeding. On appeal, Kirkland argues that the court erred in allowing Officer Moody to testify regarding his opinion of the level of intoxication the HGN test indicates. We disagree.
The trial transcript shows that the state asked Officer Moody the following question:
Now I'm asking you based on everything—your training, your on-the-job evaluations of folks who have consumed alcohol, DUI detection and what you've observed on people, their physical manifestations with the eyes and so forth, the horizontal gaze nystagmus—what's your opinion as to the correlation of that and what you find out as a result of the Intox 5000 test?
Following a defense objection which was overruled, the court clarified the question as follows:
He's asking do you have an opinion based on what you observed in the HGN and what you read on the Intoximeter[,] do you have an opinion as to how they correlate with one another. You said you had one. So now tell us what that is.
Officer Moody gave the...
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