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Challenging Admissibility of DRE Evidence in Georgia DUI Cases

Posted by Ben Sessions | Dec 06, 2014 | 0 Comments

Georgia follows a hybrid rule for determining the admissibility of scientific evidence in DUI cases.  The rule for determining the admissibility of scientific evidence is called the Harper Rule (Harper v. State, 249 Ga. 519, 524(1), 292 S.E.2d 389 (1982)).

The determination of whether a scientific principle or technique is admissible in criminal case in Georgia is governed by the rule stated in Harper v. State, 249 Ga. 519, 525-26, 292 S.E.2d 389 (1982).  The Harper rule requires that the Court in a criminal case determine “whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law….”  Id. at 525.  Otherwise stated, the Court must determine whether the scientific principle or technique “has reached a scientific stage of verifiable certainty” or “‘rests upon the laws of nature.'”  Id. (citations omitted).  “[E]vidence based on a scientific principle or technique is admissible only if the science underlying the evidence is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law.”  Parker v. State, 307 Ga.App. 61, 704 S.E.2d 438 (2010).

In Harper, the Georgia Supreme Court described the types of evidence that our trial courts should look to in determining whether a scientific principle or technique has reached a scientific stage of verifiable certainty.  The Harper court explicitly expressed its disapproval of the “counting heads” rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  Id.  According to the Harper Court:

The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.

Id. at 525-26.  “[O]nce a procedure has been utilized for a significant period of time, and expert testimony has been received thereon in case after case, the trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace.”  Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, 807 (1996).

Below is an except from Manley v. State, 206 Ga. App. 281, 424 S.E.2d 818 (1993), which provides guidance for the type of evidence that should be produced at a Harper hearing challenging the admissibility of any type of scientific evidence in a DUI case:

“In determining whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law, trial courts have frequently looked to see whether the technique has gained general acceptance in the scientific community which recognizes it. Frye v. United States, 293 F 1013 (D.C.Cir.1923); Salisbury v. State, 221 Ga. 718, 146 S.E.2d 776 (1966). An evaluation of whether the principle has gained acceptance will often be transmitted to the trial court by members of the appropriate scientific community testifying as expert witnesses at trial…. [T]he Frye rule of ‘counting heads' in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure in evidence…. [I]t is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure ‘rests upon the laws of nature.' The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. [Cits.] The significant point is that the trial court makes this determination based on the evidence available to [it] rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” Harper v. State, 249 Ga. 519, 524(1), 292 S.E.2d 389 (1982).

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GA
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Phone: 470-225-7710

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Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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