State v. Tousley

• Decision Date: 03 March 2005
• Docket Number: No. A04A1880.,A04A1880.
• Citation: 271 Ga. App. 874,611 S.E.2d 139
• Parties: The STATE v. TOUSLEY.
• Court: Georgia Court of Appeals

Page 139

611 S.E.2d 139

271 Ga. App. 874

The STATE v. TOUSLEY.

No. A04A1880.

Court of Appeals of Georgia.

March 3, 2005.

COPYRIGHT MATERIAL OMITTED

Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Gary S. Vey, Kristal A. Holmes, Asst. Solicitors-General, for Appellant.

Mickey G. Roberts, Duluth, for Appellee.

ELLINGTON, Judge.

Dawn Denise Tousley stands accused in the State Court of Gwinnett County of driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391(a)(1); driving under the influence of alcohol while having an alcohol concentration of 0.08 or more, OCGA § 40-6-391(a)(5); and failure to maintain lane, OCGA §§ 40-6-1; 40-6-48. After a hearing, the trial court granted Tousley's motion to exclude evidence regarding her performance on the horizontal gaze nystagmus (HGN) test, finding that the arresting officer failed to administer the test properly. The trial court concluded that, without the HGN test results, the arresting officer lacked probable cause to arrest Tousley for DUI and accordingly granted her motion to suppress the results of a breath test administered after the arrest. The State appeals pursuant to OCGA § 5-7-1(a)(4). For the following reasons, we reverse the trial court's ruling to the extent it excluded the HGN test results, vacate the order suppressing the breathalyzer test results, and remand.

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. Monas v. State, 270 Ga.App. 50, 52(2), 606 S.E.2d 80 (2004). 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. Id. 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." (Citation omitted.) Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994). "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." (Citation omitted.) Morrow v. State, 272 Ga. 691, 693(1), 532 S.E.2d 78 (2000).

Viewed in the light most favorable to the trial court's findings, the record shows the following facts. At approximately 11:50 p.m. on February 21, 2003, an officer observed the wheels of the vehicle Tousley was driving cross the lane divider. The officer activated his lights, which also activated the patrol car's video camera. The officer then observed Tousley's wheels cross the lane divider a second time and saw her flash her high beams at the car in front of her, which the officer interpreted as a signal that Tousley wanted to travel faster than that car. In response to the officer's signal, Tousley pulled over in a parking lot.

When the officer approached Tousley's car, he noticed a strong odor of alcohol coming from Tousley's breath. Tousley complied with the officer's request for her license and proof of insurance. Initially, Tousley denied she had been drinking but later admitted she had had two beers. According to the officer's observations, Tousley's face was not flushed; her eyes were not bloodshot, although they were "watery"; her speech was not "slurred, thick, or mumbled"; she walked normally; she did not fumble with her license; and her behavior and demeanor were otherwise "normal." The officer administered the HGN test to Tousley and determined that Tousley gave all of the six clues for intoxication. The officer then conducted the alco-sensor test, which was positive for the presence of alcohol.

Based on Tousley's failure to maintain her lane while driving, evidence that she had consumed alcohol (the odor, the positive alco-sensor, and her admission), and the results of the HGN test, the officer concluded Tousley was intoxicated to the extent it was less safe for her to drive. The officer placed Tousley under arrest for DUI; Tousley later consented to a breathalyzer.

At the hearing on Tousley's evidentiary motion, the officer testified about his training in administering the standardized HGN test, including the standardized field sobriety course and several advanced DUI seminars. The officer also testified about his experience administering and scoring HGN tests approximately 200 times. The officer described the three components of the standardized HGN test: lack of smooth pursuit, distinct nystagmus at maximum deviation, and angle of onset of nystagmus prior to 45 degrees. Each component of the standardized HGN test can yield one clue for each eye, for a total possible score of six clues. The officer testified that, according to Georgia's DUI manual, if an officer does not perform an HGN test in the prescribed way then the validity of the results will be compromised. The officer conceded that in Tousley's case he did not perform the HGN test exactly as he had been trained to do in that he failed to ask Tousley if she wore contacts or eyeglasses. The officer testified that during the "maximum deviation" component of the HGN test an officer must hold the stimulus at the maximum point for at least four seconds because "some people['s eyes] may bounce before four seconds and that would give [the officer] an incorrect clue." After reviewing the videotape, the officer testified that he believed he did hold the stimulus at the maximum deviation for a minimum of four seconds, in accordance with law enforcement guidelines.

From its review of the videotape, however, the trial court found that the officer made "two passes within the whole sequence of passes that were in a range of three to four seconds where the pen was held out.... [There was] perhaps one where the pen was held out for a total of four seconds in a stationary position." The trial court concluded that the officer was not "keeping [the stimulus] out long enough" and, based on this, "the HGN test could not be used." Considering only Tousley's driving and the evidence of the presence of alcohol (the odor on her breath and the results of the alco-sensor), the trial court concluded that the officer lacked probable cause to arrest Tousley for DUI. The trial court accordingly granted Tousley's motion to suppress the breathalyzer results.

1. The State contends that as a matter of law any errors in the administration of an HGN test go only to the weight of the results, and not to their admissibility, and that the trial court in this case therefore erred in excluding the results because of such errors.

(a) The foundation for the admission of evidence based on a scientific principle or technique. We note initially that 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. State v. Pastorini, 222 Ga.App. 316, 319, 474 S.E.2d 122 (1996).¹ 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 evidence² 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." (Citations omitted.) Johnson v. State, 264 Ga. 456, 458(5), 448 S.E.2d 177 (1994) (DNA testing). See also Pruitt v. State, 270 Ga. 745, 749(4), 514 S.E.2d 639 (1999) (accord).

A seminal case in the application of the first component of the foundation for the admission of evidence based on a scientific principle or technique was Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982). In Harper v. State, the Supreme Court of Georgia explained that evidence based on a scientific principle or technique is admissible only if the science underlying the evidence "is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law." Id. at 524(1), 292 S.E.2d 389. The Court noted that trial courts making this threshold determination "have frequently looked to see whether the technique has gained general acceptance in the scientific community which recognizes it." (Citations omitted.) Id. at 524-525(1), 292 S.E.2d 389. The Court articulated this standard for Georgia: in ruling on whether evidence based on a scientific principle or technique will be admitted, "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.'" (Footnote omitted.) Id. at 525(1), 292 S.E.2d 389. "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." Id. at 526(1), 292 S.E.2d 389.

With regard to the importance of the second component of the foundation, the requirement that the person performing the test "substantially performed the scientific procedures in an acceptable manner,"³ one treatise explains:

If the basic science and techniques used by the expert are reliable, the fact that the expert's conclusions are weak or subject to a certain margin of error usually goes to [the] weight, not admissibility. But if the expert substantially departed from principles and procedures that are the basis for the evidence's usual...