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Duncan v. State, A10A0651, Georgia Court of Appeals, June 28, 2010

DUI, Prescription Drug DUI, Sufficiency of the Evidence, HGN, DRE, Harper Scientific Reliability. Duncan v. State, A10A0651, Georgia Court of Appeals, June 28, 2010. D. Duncan was found guilty by a Coweta County jury of DUI prescription drugs and alcohol in Newnan, Georgia.

The defendant was stopped for driving with his headlights off (because they were inoperable but he had after-market foglights on) and weaving.  Coweta County Sheriff’s Corporal Chris Segrest approached Mr. Duncan with red and glassy eyes, resting nystagmus, a slight odor of alcohol and cologne.  Mr. Duncan was unsteady on his feet (Mr. Duncan was injured in a motorcycle accident and has metal rods in his legs).  Mr. Duncan submitted to the Horizontal Gaze Nystagmus (HGN) but refused the walk and turn, one-leg stand, and a blood test.

The Court found that there was sufficient evidence for the verdict.  The Court found that the Coweta Corporal performed the HGN in substantial compliance with the scientific procedures in an acceptable manner.  First, the Corporal admitted that Duncan had resting nystagmus which can be an indication of a medical condition that causes nystagmus as opposed to impairment.  Second, he performed HGN with a strobe light which is contrary to his training and could have affected the HGN test result.  Third, the Corporal conceded that he was trained to perform seven passes for HGN but he only performed two passes.  Despite these errors, the Coweta Corporal testified that he performed HGN in substantial compliance with “how he was trained.”  The Court of Appeals held that the trial court was authorized to find that “the officer substantially performed the HGN test in accordance with his training and guidelines.”  Resting Nystagmus, strobe lights, and an insufficient number of passes go to the weight of the evidence only and not its admissibility. So much for the scientific method, HGN has been relegated to the realm of the one-leg stand and walk and turn as a common-sense evaluation of physical dexterity.