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Spencer v State – clues do not equate to BAC with out a proper Harper foundation

In Spencer v. State, 302 Ga. 133 (805 SE2d 886) (2017), the Georgia Supreme Court granted the petition for certiorari in Spencer 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” range of 0.08 grams or more.

The Georgia Supreme Court held that because this testimony was admitted without a sufficient foundation having been laid under Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982), the judgment and conviction for DUI had to be reversed.

The Supreme Court saw no valid distinction to be made between testimony that a driver’s blood alcohol content is “estimated” at 0.25 grams, as in Bravo v. State, 304 Ga. App. 243, 696 SE2d 79 (2010) and the testimony presented in Spencer that the results of the HGN test generally indicated a blood alcohol content “equal to or greater than .08.” In either case, only a single number was presented to the jury, and that number established a numeric blood alcohol content exceeding the per se legal limit. In effect, these “linguistic gymnastics,” as noted by the Supreme Court enabled the State to present to the jury a blood alcohol content that is conclusive as to the driver’s intoxication, without satisfying the required evidentiary standard. This was improper. Before any such evidence may be admitted, the proponent must satisfy the requirements established by Harper.

In Spencer, the State failed to meet the Harper standard, presenting less supporting evidence than that found insufficient in Bravo. On cross-examination, the officer testified that his knowledge of the HGN test was based on his participation in police training totaling approximately two weeks and that he had no medical, physiological, or other specialist training. While the officer testified, over objection, that the test was “scientific” because his training “has shown [him] that there’s a correlation between the clues observed in this evaluation and blood alcohol content. There’s a direct connection between the two of them,” and that “several studies” supported this, he did not identify the studies he mentioned and the studies were neither tendered nor admitted into evidence. No scientific or medical testimony was presented at trial to support the conclusion that 4 of 6 clues on the HGN correlated to a blood alcohol content of 0.08 grams or more.

-Author: George C. Creal, Jr.

-Photo by Kevin Jarrett on

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