Spencer v. State

• Decision Date: 02 October 2017
• Docket Number: S16G1751.
• Parties: SPENCER v. The STATE.
• Court: Georgia Supreme Court

302 Ga. 133

805 S.E.2d 886

SPENCER

v.The STATE.

S16G1751.

Supreme Court of Georgia.

Decided: October 2, 2017

Thomas James Thomas, Thomas Webb & Willis, 750 Hammond Drive, Building 5, Atlanta, Georgia 30328, for Appellant.

John Andrew Pipkin, III, Solicitor-General, William Barney Kennedy, III, Assistant Solicitor-General, Meredith Chafin Florio, Assistant Solicitor, HENRY COUNTY SOLICITOR GENERAL'S OFFICE, State Court of Henry County, One Judicial Center, Suite 350, 44 John Frank Ward Boulevard, McDonough, Georgia 30253, for Appellee.

Boggs, Justice.

After a jury trial, appellant Mellecia Spencer was convicted of one count of driving under the influence of alcohol (less safe) and one count of possession of an open container. She appealed the judgment of conviction and sentence only as to the conviction for DUI. The Court of Appeals affirmed her conviction in Spencer v. State, 337 Ga. App. 360, 787 S.E.2d 320 (2016) ( Spencer I ). We granted this petition for certiorari to consider whether the Court of Appeals erred in holding that the trial court properly admitted a police officer's testimony correlating the results of a horizontal gaze nystagmus ("HGN") test with a numeric blood alcohol content or "BAC". Because this testimony was admitted without a sufficient foundation having been laid under Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982), we reverse the judgment of conviction and sentence with respect to the DUI.

The underlying facts are laid out in detail in Spencer I. In brief, Spencer was stopped for a nonworking headlight, and the investigating officer noted her slurred speech, an odor of alcoholic beverage, a wristband from a bar, and a plastic cup in the center console that appeared to contain an alcoholic drink. The officer administered the HGN test to Spencer, who exhibited 4 out of 6 "clues" indicating impairment.

At trial, the officer was questioned by the solicitor regarding the HGN test:

Q: Just based on your training and experience, have you noticed a correlation between four out of six clues on the HGN test that you perform in the field and a blood alcohol or breath alcohol content that would be in a person's system?

A: Based on my training and my experience, four out of six clues generally indicates a blood alcohol level equal to or greater than a .08.

Spencer objected to this testimony and, after a lengthy colloquy, the trial court overruled the objection. The solicitor questioned the officer again¹ :

Q: Is there a correlation between what you saw on the HGN test and, in general, a person's alcohol content level on their system?

A: Based off my training and my experience, generally there is.

Q: And what is that correlation?

A: Generally, the four out of six clues indicates an alcohol concentration equal to or greater than a .08.

A jury found Spencer guilty, the trial court denied her motion for new trial, and she appealed, contending inter alia that the trial court erred in allowing this testimony. The Court of Appeals affirmed her conviction, holding:

[I]t is true that an arresting officer's testimony identifying a specific numeric blood alcohol content based solely on a defendant's HGN results should be excluded. But the officer here did not give such testimony. Rather, he testified that in performing the test he looks for up to six clues in a subject's eyes, that observing four or more clues indicates impairment due to alcohol, and that four out of six clues generally indicates a blood alcohol level equal to or greater than .08.

(Citations and punctuation omitted.) Spencer I, 337 Ga. App. at 360–361 (1), 787 S.E.2d 320. The court held that, because the officer did not identify a specific blood alcohol level for Spencer, but merely testified that a finding of four out of six clues generally exceeds the impairing level of .08, the trial court did not err in allowing the testimony. Id. at 361 (1), 787 S.E.2d 320. We granted certiorari to consider whether the Court of Appeals erred in so holding.

Our decision in Harper, supra, guides a trial court's determination of whether a scientific principle or technique is competent evidence in a criminal case:

It 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. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.

(Citations and footnote omitted.) 249 Ga. at 525–526 (1), 292 S.E.2d 389. And "[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." Id. at 526 (1), 292 S.E.2d 389.²

It is generally accepted that the HGN test "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." Hawkins v. State, 223 Ga. App. 34, 38 (1), 476 S.E.2d 803 (1996). And here, the Court of Appeals relied upon its prior holding in Parker v. State, 307 Ga. App. 61, 64 (2), 704 S.E.2d 438 (2010), that "a score of four out of six clues on an HGN test constitutes evidence of impairment ." (Emphasis supplied). Spencer I at 361 (1), 787 S.E.2d 320. But whether the HGN test may properly be used as evidence that a driver is impaired by alcohol is not the same question as whether the HGN test has been established as an indicator of either a specific number or a numeric range of blood alcohol content.

In Bravo v. State, 304 Ga. App. 243, 696 S.E.2d 79 (2010), our Court of Appeals addressed this distinction, noting that its earlier decision in Webb v. State, 277 Ga. App. 355, 626 S.E.2d 545 (2006), had correctly framed the question:

[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.

(Citations, punctuation, and footnote omitted; emphasis in original.) Bravo, supra, 304 Ga. App. at 247 (1), 696 S.E.2d 79. After noting that numerous jurisdictions have concluded that HGN tests are "not admissible to quantify a specific BAC," id. at 247 n.13, 696 S.E.2d 79, the Court of Appeals concluded that the trial court erred in admitting a police officer's testimony that he "estimated Bravo's BAC was 0.25 grams based on a mathematical calculation," because the evidence "[fell] short of establishing that the method at issue has reached a scientific stage of verifiable certainty." Id. at 249 (1), 696 S.E.2d 79.

Additionally, Bravo cites the Court of Appeals' decision in Kirkland v. State, 253 Ga. App. 414, 559 S.E.2d 161 (2002), for the proposition that "field sobriety tests, including the HGN, are admissible to show that a detainee's BAC exceeds a particular impairing level." (Citation and footnote omitted.) Bravo, supra, 304 Ga. App. at 248 (1), 696 S.E.2d 79. Spencer I likewise relies upon this statement. 337 Ga. App. at 361 (1), 787 S.E.2d 320. Kirkland, however, was convicted under OCGA § 40–6–391 (a) (5), DUI per se, rather than OCGA § 40–6–391 (a) (1), DUI less safe. Kirkland consented to a breath test, and the two samples taken showed a BAC of 0.124 grams and 0.127 grams. Id. at 415, 559 S.E.2d 161. And the officer was asked, "[D]o 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." (Punctuation omitted.) Id. Ultimately, the Court of Appeals relied upon the breath test to affirm the conviction, observing that the breath test results "provide independent support for the jury's determination that Kirkland was guilty of DUI by having an alcohol concentration of 0.10 grams or more, in violation of OCGA § 40–6–391 (a) (5)." Id. at 416–417, 559 S.E.2d 161. Because of these unusual facts, this decision provides no support for avoiding the application of Harper. To the extent that Kirkland could be relied upon to permit an estimate of blood alcohol content based on HGN alone, without sufficient evidence to establish the scientific validity or reliability of any correlation as required by our holding in this case, it is disapproved.

Here, the Court of Appeals erroneously relied upon Kirkland and Parker, supra, without addressing its holding in Bravo that the use of an HGN test to identify a specific numeric BAC has not "been recognized in court as reaching the requisite scientific stage of verifiable certainty," id. at 248 (1), 696 S.E.2d 79, that "the State failed to establish the scientific validity and reliability of the procedure at issue," and that the admission of the officer's testimony was therefore an abuse of discretion. Id. at 249 (1), 696 S.E.2d 79. It did not examine the reasoning of the many jurisdictions that have rejected the use of the HGN test for this purpose. Nor did it address the caution in Bravo that, "the Harper decision requires recognition of a procedure or technique in a substantial number of courts before a trial court may judicially notice, without receiving evidence, that the...