Manley v. State

• Decision Date: 29 October 1992
• Docket Number: No. A92A1560,A92A1560
• Citation: Manley v. State, 206 Ga.App. 281, 424 S.E.2d 818 (Ga. App. 1992)
• Parties: MANLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 818

424 S.E.2d 818

206 Ga.App. 281

MANLEY v. The STATE.

No. A92A1560.

Court of Appeals of Georgia.

Oct. 29, 1992.

Reconsideration Denied Nov. 17, 1992.

Certiorari Denied Feb. 12, 1993.

Moore & Davidson, W. Keith Davidson, Lawrenceville, for appellant.

Gerald N. Blaney, Jr., Sol., David M. Fuller, and Allison L. Thatcher, Asst. Sols., for appellee.

BEASLEY, Judge.

A jury convicted Manley 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 having a blood alcohol concentration of .12 grams of alcohol or more within three hours after being in actual physical control of a moving vehicle, former OCGA § 40-6-391(a)(4). Both charges stemmed from the same incident. The court merged the second count into the first and sentenced only on count one ("less safe"). Manley's motion for new trial was denied.

The sole challenge is that the trial court erred in allowing evidence of the Horizontal Gaze Nystagmus Test (HGN) to be presented to the jury "when the test did not reach a level of verifiable certainty and acceptance by the scientific community for the purposes used in this case." The HGN is a test manifesting an involuntary rapid and then slow jerk of the eye. It is one of the field sobriety tests used as an indicator of alcohol or other drug use. See Mendoza v. State, 196 Ga.App. 627, 628(1), 396 S.E.2d 576 (1990). It was administered to Manley along with several other field sobriety tests. Via a motion in limine and objections at trial, Manley sought to exclude all evidence pertaining to the HGN test on the ground that the test is not generally accepted by the scientific community as a reasonable means of determining sobriety or the lack thereof.

"In determining whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it 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 which recognizes it. Frye v. United States, 293 F 1013 (D.C.Cir.1923); Salisbury v. State, 221 Ga. 718, 146 S.E.2d 776 (1966). An evaluation of whether the principle has gained acceptance will often be transmitted to the trial court by members of the appropriate scientific community testifying as expert witnesses at trial.... [T]he Frye rule of 'counting heads' in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure in evidence.... [I]t is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, 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. [Cits.] The significant point is that the trial court makes this determination based on the evidence available to [it] rather than by simply calculating the consensus in the scientific community. Once 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." Harper v. State, 249 Ga. 519, 524(1), 292 S.E.2d 389 (1982).

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