☢ test - Í

3. REFUSAL Hoffman v. State, 275 Ga.App. 356, 620 S.E.2d 598 (September 1, 2005). “‘Refusal to submit to field sobriety tests ... is admissible as circumstantial evidence of intoxication and together with other evidence would support an inference that [the suspect] was an impaired driver.’ Jones v. State, 273 Ga.App. 192, 194(1)(b) (614 S.E.2d 820) (2005) (citations and punctuation omitted).” Accord, Horne v. State , 286 Ga.App. 712, 649 S.E.2d 889 (July 20, 2007); Massa v. State , 287 Ga.App. 494, 651 S.E.2d 806 (September 11, 2007); Crusselle v. State , 303 Ga.App. 879, 694 S.E.2d 707 (April 7, 2010); Korponai v. State , 314 Ga.App. 710, 725 S.E.2d 832 (March 9, 2012). Bravo v. State, 249 Ga.App. 433, 548 S.E.2d 129 (April 30, 2001). Evidence that an accused, who was not in custody at the time, refused to perform field sobriety evaluations is admissible in a trial for DUI. A person’s right to remain silent as set forth in the Fifth Amendment, the Georgia Constitution, or OCGA § 24-9-20(a) does not attach until the person is under arrest. Accord, Long v. State , 271 Ga.App. 565, 610 S.E.2d 74 (December 6, 2004); Sullivan v. State , 326 Ga.App. 441, 756 S.E.2d 671 (March 21, 2014) (DUI-less safe can be proved “by presenting evidence that the defendant refused to take a breath test, as well as the officer's own observations regarding the defendant's behavior and the odor of alcohol on his person.”). J. HORIZONTAL GAZE NYSTAGMUS See also subheading OPINION TESTIMONY, below Johnson v. State, 323 Ga.App. 65, 744 S.E.2d 921 (July 3, 2013). DUI and improper lane change convictions affirmed; no error in admitting HGN evidence despite defense expert’s testimony “that the officer performed the equal tracking portion of the test ‘too quick.’” Distinguishing Sultan v. State , 289 Ga.App. 405, 657 S.E.2d 311 (2008), where “[t]he officer testified that he probably did not perform the equal tracking portion of the HGN test....” “In this case, on the other hand, the officer testified that he appropriately performed the equal tracking portion of the HGN test, that Johnson was qualified to have the test administered to him, and that he appropriately performed the remaining portions of the HGN test, which showed that Johnson exhibited six out of six clues of impairment. Thus, Sultan's holding does not require reversal in this case, and in light of the evidence that the HGN test was properly performed, the trial court did not err by denying Johnson's motion regarding the test results. Any conflicting expert testimony or video evidence challenging the officer's performance of the test goes to the weight of the HGN test results and the officer's conclusions of Johnson's impairment, not the admissibility of the HGN test results themselves. See Roswell v. State, 312 Ga.App. 559, 562–563(2)(a), 718 S.E.2d 890 (2011). See also Parker [ v. State, 307 Ga.App. 61, 64(2), 704 S.E.2d 438 (2010)]; Duncan v. State, 305 Ga.App. 268, 272(2)(a), 699 S.E.2d 341 (2010).” Rowell v. State, 312 Ga.App. 559, 718 S.E.2d 890 (November 15, 2011). DUI and weaving convictions affirmed; no error in admission of HGN and one-leg stand tests in motion hearing. “Rowell's conclusory argument regarding the HGN test does not support the exclusion of the test results. She makes no attempt to show that the flaws she alleges in the administration of the HGN test go to anything other than the weight to be accorded the results. Similarly, Rowell's arguments concerning the proper administration of the one-leg-stand test when she was in high heels goes to the weight of the evidence and not to its admissibility. See Stewart v. State, 280 Ga.App. 366, 368–369(2) (634 S.E.2d 141) (2006). Thus, the trial court was entitled to consider the results of these tests in ruling upon the motion to suppress.” Duncan v. State, 305 Ga.App. 268, 699 S.E.2d 341 (June 28, 2010). Defendant’s DUI conviction affirmed; trial court properly admitted HGN evidence although admittedly not properly performed. “Corporal Segrest admitted … that Duncan exhibited ‘resting’ nystagmus while sitting in his vehicle before the HGN test was administered, which can be an indication that a person has a medical condition that causes the nystagmus, as opposed to an impairment. The officer also conceded that if he performed the HGN test with the strobe light from his patrol car flashing as depicted in the DVD of the traffic stop, it would have been contrary to his training and could have affected the test results. Finally, Corporal Segrest testified that although he was trained to perform seven ‘passes’ in each of a detainee's eyes to detect the six possible clues, he only performed two passes in each test before concluding that Duncan exhibited six indicators of nystagmus consistent with impairment. See [ Hann v. State, 292 Ga.App. 719, 723(5) (665 S.E.2d 731) (2008)] (evidence that the officer failed to hold the pen a proper distance from the defendant's face and did not time the test properly did not render evidence of the HGN test inadmissible). Compare Sultan v. State, 289 Ga.App. 405, 407-408(1) (657 S.E.2d 311) (2008) (trial court erred by failing to exclude an HGN test because the officer testified that he failed to perform a portion of the test that was intended to qualify the subject). Nevertheless, Corporal Segrest testified that he performed the HGN test on Duncan ‘in conjunction [with] or substantially how [he was] trained.’ … Given this evidence, the trial court was authorized to conclude that the officer substantially performed the test in accordance with his training and guidelines. [Cit.] Duncan's arguments regarding the police lights, the insufficient number of passes, and the fact that