State v. Smith, A14A1127, November 14, 2014. James Smith was charged with DUI less safe and failure to maintain lane. Following a hearing, the trial court suppressed two of the field evaluations performed by the Officer because they were not performed according to his National Highway Transportation Safety Administration (NHTSA) training. Judge Doyle writing for the Fourth Division of the Court of Appeals followed the exception to the erroneous standard for motions to suppress known as “if there is video review is de novo rule” even in the face of the Trial disregarding police testimony as being unbelief worthy. The Trial Court found in its order “the discrepancies between Officer Ferguson’s police report and the driver impairment form gave the trial court doubt as to the propriety of [the] administration of [those
tests].” Because there was a video and the driver impairment form and the police report were not in the appellate record, the Court appeals relied solely on the video of the arrest to review de novo the application of law to facts.
As an aside, of course, a police report and driver impairment form are not admissible in evidence at a hearing or trial unless the Judge finds them trustworthy under Rule 803(c). Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 450, 102 L.Ed.2d 445 (1988)(“As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.”)
The State appealed the Court’s suppression of walk and turn and one-leg stand. The Court of Appeals agreed to find testimony from an officer about a suspect’s inability to complete dexterity tests such as the walk and turn and one leg stand does not amount to testimony regarding scientific procedures but instead amounts to testimony as to behavioral observations. Therefore, unlike the scientific procedures such as the HGN and VGN are not inadmissible if not performed as trained but such evidence of poor test administration goes only to the weight of the evidence and not to admissibility.
This would be fair if the State chooses to have the officer testify as a lay witness and describe the actions of the defendant in performing simple exercises such as the “leg lift” and “walk and turn” without referring to NHTSA training, any “points” system, clues or using the words “pass” or “fail” or that the number of clues indicates “impairment.” The reality of the situation is that the police will refer to the evaluation as a test, testify about their “expert” training, and cloak them in the trappings of science to fool the jury even if they are only really just lay observations and evaluations. See generally, James v. State, 260 Ga.App. 536, 539(1), 580 S.E.2d 334 (2003)
-Author: George Creal