Greensboro DWI Attorneys Contest HGN tests daily in DWI Trials (Part 2).
Top DWI trial attorneys are always looking for new ways to challenge DWI tests, especially in the area of probable cause to arrest. Here is a more advanced look at a new way to challenge the HGN.
More recently, in State v. Godwin, the Court of Appeals decided that “a party offering testimony about the results of an HGN test…do so through a properly qualified witness who has been accepted as an expert by the trial court.” Though it is noteworthy that the officer in Godwin was never tendered as an expert, the Court explained further that consistent with N.C.G.S. 8C-1, Rule 702(a) and Daubert, a witness must be qualified as an expert “by knowledge, skill, experience, training, or education” and can testify to their opinion “if all of the following apply: (1) [t]he testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case.” Additionally N.C.G.S. 8C-1, Rule 702(a1) requires that the subject HGN test have been “administered by a person who has successfully completed training in HGN.” The Court also addressed prior precedent in State v. Smart, 674 S.E.2d 684 under the old version of N.C.G.S. 8C-1, Rule 702(a), where subsection (a1) “obviat[ed] the need for the State to prove that the HGN testing is sufficiently reliable” stating in dicta that “some may even question whether Smart survives the amendment to Rule 702(a)[.]” On the facts in Godwin, the Court also held that the error in admitting the HGN testimony was prejudicial.
On the same date it issued Godwin, the Court also issued a decision in State v. Torrence, where it declared that testimony regarding the results of the HGN test and the issue of impairment relating to it was error. In so doing, it short-circuited an…inventive…prosecutor’s argument that the officer was not giving an expert opinion but merely “reporting his observations.” The Court also pointed out in Torrence that even a qualified expert’s assertion that the presence of four or more clues on the HGN creates a seventy-seven percent (77%) chance that a defendant is at .10 or higher because N.C.G.S. 8C-1, Rule 702(a1) specifically prohibits testimony “on the issue of specific alcohol concentration[.]”
It is also noteworthy that the amendment to N.C.G.S. 8C-1, Rule 702(a) seems in both decisions to have resurrected earlier precedent in State v. Helms, 504 S.E.2d 293, which found that “the HGN test does not measure behavior a lay person would commonly associate with intoxication, but rather represents specialized knowledge that must be presented to the jury by a qualified expert” and that the State had to show, among other things, that the methodology underlying the test was “sufficiently reliable” and “can be properly applied to
the facts in issue.” Reciting the Court’s analysis in Helms, the Godwin decision reminds that “where no evidence was admitted, and no inquiry conducted, as to the reliability of HGN testing…it was error to admit an officer’s testimony regarding the results f the HGN test administered[.]”