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Johnson v. State – A13A0397 – Police video can be used against you but not the Police

JOHNSON, JR. v. THE STATE, A13A0397, Court of Appeals of Georgia, July 3, 2013. William Holland Johnson, Jr. was found guilty of DUI by a Forsyth County Jury in the State Court of Forsyth County in Cumming, Georgia. He appealed arguing that the Horizontal Gaze Nystagmus (HGN) test should have been excluded, he was denied legal jury charges, and post-arrest statements should have been excluded.

The Court of Appeals held that the Officer testified he performed the HGN correctly on the witness stand and that was enough. If the video showed that he did not perform the HGN correctly that does not affect the admissibility of the HGN but simply the weight the jury can give to the testimony. The Court of Appeals held that the jury charge on HGN was correct as it indicated that factors other than alcohol can cause nystagmus and errors in the administration of nystagmus can occur. Further, the failure to give the charge on the police ability to get a warrant in the event of a refusal to take the test was not an error. Finally, the Court held that spontaneous comments made by the Defendant about how f%&%’d he was were not more prejudicial than probative even though they referenced his medical licensure and not his guilt due to alcohol impairment as they were part of the res gestae of the arrest.

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