Georgia DUI Cases of Note


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

Saturday, May 12, 2018

Georgia DUI HGN linguistic gymnasticsIn 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




    FacebookFacebook LinkedInLinkedIn UnknownGoogle RSSRSS Bookmark and Share


    George C. Creal, Jr. is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Metro DUI lawyers with both an AV Preeminent rating from and a 10.0/10.0 Superb rating on  With over 100 not guilty jury verdicts under his belt, George knows how to convince a jury that the State has not proven his client guilty of DUI beyond a reasonable doubt.
    George Creal Attorney Profile

    The National Trial Lawyers





    No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI arrests occurring in the State of Georgia. Individuals with DUI from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2014 George C. Creal, Jr. P.C.
    Protected by Copyscape Online Plagiarism Checker

     | DUI Alpharetta   |   DUI Athens   |   DUI Atlanta   | DUI Bibb County   

       DUI Conyers    |     DUI Coweta County   |   DUI Decatur   |   DUI DeKalb County 

     DUI Doraville   |   DUI Douglas   |   DUI Douglasville   |   DUI Duluth 

    Atlanta Office Address: 480 John Wesley Dobbs Ave.,  N.E., Unit 190, Atlanta, GA 30312 | Phone: (404) 491-8712

    In the words of Mark Twain, "Continuous Improvement is better than delayed perfection." If you find errors or deadlinks please email us at, we strive to do better.