In Spencer v. State, A16A0118, June 9, 2016, the Georgia Court of Appeals concluded in a less safe DUI case that a DUI Police Officer’s testimony at trial that “four out of six clues generally indicates a blood alcohol level equal to or greater than .08.” The Court distinguished Bravo v. State, 304 Ga. App. 243, 247-248, 696 SE2d 79 (2010) by pointing out that the Officer did not try to identify a specific blood alcohol content as was the case in Bravo. The Spencer Court relied on Parker v. State, 307 Ga. App. 61, 64, 704 SE2d 438 (2010)(holding that “under law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment) and Kirkland v. State, 253 Ga. App. 414, 559 SE2d 161 (2002)(Finding admissible the statement that “in general, when you see six out of six clues on the HGN test the blood alcohol will be…0.10 or greater.”)

First, the legal limit is not relevant in a less safe DUI case because there is no legal presumption of impairment for purposes of less safe driving except for the presumption of sobriety under 0.05 and no presumption between 0.05 and 0.08 under OCGA 40-6-392. You have to be charged with DUI per se for the 0.08 legal limit to be relevant. In Baird v. State, 260 Ga. App. 650 (2003), the Court of Appeals explained, “To win a DUI conviction under the “less safe driver” statute,[6] the State must prove that the defendant had impaired driving ability as a result of drinking alcohol.[7] As we noted in Evans v. State,[8] “impaired driving ability depends solely upon an individual’s response to alcohol.”[9] Because individual responses to alcohol vary, the presence of alcohol in a defendant’s body, by itself, does not support an inference that the defendant was an impaired driver.

Second, the Horizontal Gaze Nystagmus Test is far from foolproof. In the 2007 study titled, “The Robustness of Horizontal Gaze Nystagmus Test” by NHTSA, the raw data shows that out of 258 HGN tests administered 151 times officers found 4 or more clues out of 6 total clues and the test subject later blew under the legal limit of 0.08 grams blood alcohol content. This means that your definition of: ”generally”  is 47% of the time.

HGN is not a breath test. HGN is just a breath guess.

-Author: George Creal

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