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Spencer v. State

Supreme Court of Georgia

October 2, 2017

SPENCER
v.
THE STATE.

          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 again[1]:

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). 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 ...


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