☢ test - Í

Wrigley v. State, 248 Ga.App. 387, 546 S.E.2d 794 (March 2, 2001). Jury instruction on HGN test containing language that nystagmus could be caused by ingestion of alcohol and that the test had reached a state of “verifiable certainty” in the scientific community did not give HGN evidence undue weight, in prosecution for driving under the influence. Citing Waits v. State , 232 Ga.App. 357, 501 S.E.2d 870 (1998) and Hawkins v. State , 223 Ga.App. 34, 476 S.E.2d 803 (1996). Accord Mullady v. State , 270 Ga.App. 444, 606 S.E.2d 645 (November 15, 2004). Werner v. State, 246 Ga.App. 677, 538 S.E.2d 168 (August 10, 2000). DUI conviction affirmed; defendant’s objection to officer’s testimony about HGN results was meritless. “[The officer] testified, without objection, regarding the correlation between HGN and blood alcohol concentration, stating that ‘when the National Highway Traffic Safety Administration did their study, their percentages were four [sic] people at a point one zero and higher, and that was what they called the legal per se limit or to be over the legal limit.’ The State then asked: ‘[I]f you get four clues, it's possibly a point one 0 or higher?’ and the officer responded … ‘That's correct.’” “‘Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information on the question whether alcohol is present at an impairing level such that the driver is less safe within the meaning of OCGA § 40-6-391(a)(1).’ (Citations omitted.) Sieveking v. State, 220 Ga.App. 218, 219, 469 S.E.2d 235 (1996). ‘That these tests have no specific, quantitative value regarding the extent of a driver's alcohol impairment would go to the weight to be given the tests and not their admissibility.’ Hawkins v. State, 223 Ga.App. 34, 39(1), 476 S.E.2d 803 (1996).” Sese also Bravo (May 28, 2010), above. Prindle v. State, 240 Ga.App. 461, 523 S.E.2d 44 (September 28, 1999). Defendant’s conviction for DUI - per se affirmed, despite erroneous admission of defendant’s HGN test results; “HGN test results are discoverable as scientific reports. Rayburn v. State, 234 Ga.App. 482, 484(2), 506 S.E.2d 876 (1998). Because Prindle requested but was not provided a copy of the report, the officer's testimony regarding the report should have been excluded. Id. at 485, 506 S.E.2d 876; OCGA § 17-16-23(c). Harmless error, however, because defendant was charged and convicted on per se DUI, not less safe DUI. Lancaster v. State, 240 Ga.App. 359, 522 S.E.2d 30 (August 17, 1999). Trial court properly admitted evidence of HGN test results; “[a]lthough the officer admitted he violated law enforcement guidelines when he administered the test to Lancaster while he was sitting, Lancaster submitted no evidence showing how this would affect the validity of the test. In Hawkins v. State, 223 Ga.App. 34, 38(1), 476 S.E.2d 803 (1996), we held that the ‘HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.’ As a result, evidence of an HGN test should be admitted by the trial court without expert testimony. Id. We also rejected the appellant's claim that an HGN test cannot be admitted ‘until a foundation is laid regarding the proper administration of the test[ ].’ Id. at 35, 38, 476 S.E.2d 803. Instead, we placed the burden on the party objecting to the admissibility of an HGN test to show that it was not properly administered. Id. at 38, 476 S.E.2d 803. Finally, we recognized that ‘[a] challenge to the method by which an admissible [HGN] test is administered would be the subject of a timely motion or objection at trial and a subsequent analysis thereon by the trial court on a case-by-case basis.’ Id.” Albert v. State, 236 Ga.App. 146, 511 S.E.2d 244 (January 28, 1999). 1. Trial court properly admitted HGN evidence without proof of its scientific validity. “[A]s we held in Hawkins v. State, 223 Ga.App. 34, 476 S.E.2d 803 (1996), ‘ the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community’ such that a trial court does not err ‘in admitting evidence of the HGN test without first requiring expert testimony as a foundation for its admission.’ Id. at 38, 476 S.E.2d 803.” 2. HGN can be used to establish probable cause to arrest for DUI based on alcohol or drugs. “In the past, we have recognized that the HGN test can be used to indicate whether the person tested demonstrates signs of impairment from either alcohol or drugs. Hawkins, supra; Kerr v. State, 205 Ga.App. 624, 423 S.E.2d 276 (1992); Manley v. State, 206 Ga.App. 281, 424 S.E.2d 818 (1992); and State v. Sumlin, 224 Ga.App. 205, 480 S.E.2d 260 (1997) (physical precedent). … In this case, the HGN test provided competent evidence that Albert was impaired by some substance. Although this evidence might not be sufficient to sustain a conviction for driving under the influence of marijuana, this sign of impairment together with red, glassy eyes and the smell of marijuana can be used to determine whether probable cause exists to arrest a person for driving under the influence.” Cantwell v. State , 230 Ga.App. 892, 497 S.E.2d 609 (March 5, 1998). Trial court properly refused to allow cross- examination of officer on NHTSA standards for field sobriety evaluations where the state did not rely on those standards or tenders the officer as an expert witness. “[I]f the State chooses to have the officer testify as a lay witness and describe