If you are handling DUI Drugs cases in Georgia, you must anticipate law enforcement use of DRE evaluations. You have to expect in the DUI drugs case in order to make the approximate motions to exclude evidence that has not been shown to scientifically reliable in Georgia. If you are defending Georgia DUI drugs cases, be sure to get a cheat sheet like this:
Below are two examples of motions to exclude DRE evaluations that I typically file in Georgia DUI drugs cases. The first example is much more extensive than the second. Below the second motion is a link to a Maryland order excluding DRE evaluation under the Daubert standard. Remember that in Georgia, our Harper standard should be greater than the Daubert/Frye standard our courts apply in civil cases.
DRE EVALUATIONS AND MOTIONS TO EXCLUDE
BRIEF IN SUPPORT OF MOTION TO EXCLUDE ROMBERG EVIDENCE
The evidence and testimony addressed in this motion is generically referred to as the “Romberg test” by law enforcement. It is more accurately called the “Modified Romberg Balance Test.” The “Romberg test” at issue in this case consists of the following:
- The subject is instructed to stand straight with their feet together and their arms down at their sides;
- The subject is instructed to remain in that position until instructions are completed;
- The subject is instructed that when told to begin, the subject should tilt their head back slightly and close their eyes.
- With their head titled back and eyes closed, the subject is instructed to estimate the passage of 30 seconds.
- The subject is instructed to bring their head forward, open their eyes, and say “Stop” when they believe that 30 seconds has elapsed.
- When the subject opens their eyes, ask them how much time they thought elapsed.
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 explicity 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).
Certain evaluations commonly employed in DUI investigations, such as the “ABCs,” the “Walk-and-Turn Test,” and the “One-Leg Stand Test,” have been recognized as “physical dexterity exercises that common sense, common experience, and the ‘laws of natures” share are performed less well after drinking alcohol.” Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, 807 (1996). Accordingly, “[t]he screening of these gross motor skills is hardly the type of ‘scientific principle or technique' to which Harper referred, and this Court will not hold these physical manifestations of impairment, which could be as obvious to the layperson as to the expert, to such a standard of admissibility.” Id.
In contrast to those tests which, in large part, test gross motor skills, certain tests typically employed in DUI investigations required a determination that the Harper standard has been satisfied. In Hawkins, the Court of Appeals clarified that the horizontal gaze nystagmus test is a scientific test that required a Harper foundation, and the Court further 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.” Id. at 808. Thus, the Hawkins Court held that the trial court was no longer required to hear expert testimony in order to introduce evidence of HGN. Id. In reaching its conclusion that the production of evidence to satisfy the Harper standard for admissibility was no longer required, the Court observed the following:
- the effect of alcohol on the eyes and inducing horizontal gaze nystagmus is recognized in The Merck Manual of Diagnosis and Therapy;
- the horizontal gaze nystagmus test has undergone validation studies sanctioned by the National Highway Traffic Safety Administration (Burns & Moskowitz, “Psychophysical Tests for DWI Arrest,” S. Department of Transportation, Rep. No. DOT-HS-802-424 (1977); Schweitz & Snyder, “Field Evaluation of a Behavioral Test Battery for DWI,” U.S. Department of Transportation, Rep. No. DOT-HS-806-475 (1983);
- the horizontal gaze nystagmus test has been employed by law enforcement in all 50 states;
- the relationship of horizontal gaze nystagmus to alcohol consumption was recognized in the premier DUI defense treatise (Erwin, Defense of Drunk Driving Cases (3rd ed. 1985), 8.15A);and
- “The characteristics, theory, and scientific acceptability of HGN testing in relation to DUI cases has been discussed in numerous articles and in numerous judicial opinions. See particularly, State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, appendices A & B 182-184, 149 Ariz. 269, 718 P.2d 171 (1986); State v. Nagel, 30 Ohio App.3d 80, 506 N.E.2d 285 (1986); see also, e.g., Barnes, The Effects of Ethyl Alcohol on Visual Pursuit and Suppression of the Vestibulo-Ocu- lar Reflex, 406 ACTA Otolaryngol Supp., p. 161 (Sweden 1984) (ethyl alcohol disrupted visual pursuit eye movement by increasing number of nystagmic “catch-up saccades”); Goldberg, Effects and After-Effects of Alcohol, Tranquilizers and Fatigue on Ocular Phenom- ena, Alcohol and Road Traffic, p. 123 (1963) (of different types of nystagmus, alcohol gaze nystagmus is the most easily observed); Zyo, Medico-Legal and Psychiatric Studies on the Alcoholic Intoxicated Offender, 30 Japanese J. of Legal Medicine, No. 3 (1976), p. 169 (recommends use of nystagmus test to determine somatic and mental symptoms of alcohol in- toxication, as well as blood alcohol content).”
Hawkins, 476 S.E.2d at 807-808.
When a given type of scientific evidence or technique has been recognized as meeting the Harper foundation, the scope of the opinions which may be rendered based upon the scientific evidence or technique must still be scrutinized to determine compliance with Harper. Hawkinsauthorized use of the HGN test as a basis for an opinion regarding “impairment” by alcohol. However, Hawkins does not authorize use of the HGN test as a basis for an opinion as to a specific numerical blood-alcohol concentration. Bravo v. State, 304 Ga. App. 243, 696 S.E.2d 79 (2010)(expert testimony regarding use of the HGN to determine a specific blood-alcohol concentration was insufficient to meet the Harper standard for admissibility).
There is no authority for judicial notice that the “Romberg Test” satisfies the Harperstandard. No Georgia court has addressed whether the “Modified Romberg Balance Test” has satisfied the Harper standard of reaching a scientific stage of verifiable certainty. There are Georgia cases in which a “Romberg test” was admitted as evidence and considered by trial courts, but there is no case in which an objection to the admissibility of “Romberg” evidence was preserved for consideration on appeal. The Romberg test is not which has repeatedly presented to the Court of this state and supported by expert testimony accepted.
Respectfully Submitted, this ___ day of ____________, ———-.
MOTION IN LIMINE TO EXCLUDE EVIDENCE OF “ROMBERG” EVALUATION, EYELID TREMORS, BODY TREMORS, REDDENING OF THE CONJUCTIVA, AND RAISED TASTEBUDS FROM THE TRIAL OF THIS CASE
Comes Now, the Defendant, by and through the undersigned counsel of record, and moves this Honorable Court to exclude from trial all evidence regarding the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjuctiva, and raised tastebuds as being indicative of the Defendant driving under the influence of drugs to the extent that he was a less safe driver. In furtherance of this motion, the Defendant shows this Court the following:
On _________________, ——– of the —————- requested that the Defendant perform a field sobriety test. The test is referred to as the “Romberg” evaluation. Trooper —- stated that he observed that the Defendant improperly estimated 23 seconds to be 30 seconds, and the Defendant allegedly exhibited eyelid tremors, body tremors, reddening of the conjuctiva, and raised tastebuds.
The Defendant challenges the admissibility of the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjuctiva, and raised tastebuds as being indicative of the Defendant driving under the influence of drugs to the extent that he was a less safe driver. These evaluations and observations constitute scientific evidence and as such should not be received into evidence without the proper foundation. See Harper v. State, 249 Ga. 519 (1982).
Scientific evidence is evidence based upon principals of science and “shrouded in the mystery of professional skill or knowledge.” See, Metropolitan Life Insurance Company v. Saul, 189 Ga. 1, 9 (1939). Such evidence is “beyond the ken of the average [person].” See, Williams v. State, 254 Ga. 508, 510 (1985). The evaluations and observations described above constitute scientific evidence. The average person would not understand that alleged problems estimating the passage of time, eyelid tremors, body tremors, reddening of the conjuctiva, and raised tastebuds or other such alleged symptoms would be indicative of someone under the influence of drugs. These are not commonsense evaluations and observations.
—————'s alleged evaluations and observations are similar to the Horizontal Gaze Nystagmus test that police officers often administer in DUI cases. “The HGN is a test manifesting in an involuntary rapid and then slow jerk of the eye.” Manley v. State, 206 Ga. App. 281 (1992). That evaluation is a “scientific procedure.” State v. Pastorini, 222 Ga. App. 316, 319 (1996). On the other hand, field sobriety evaluations that “demonstrate a suspect's dexterity and ability to follow directions do not constitute scientific evidence.” Id. at 318. For evaluations such as the One Leg Stand test, which was not used in Defendant's case, an average person can have an understanding that such evaluations would generally be performed less skillfully by a person who was under the influence of an intoxicant. This, however, is not the true for evaluations and observations such as HGN, the Rhomberg Evaluation, tremors, and eye symptoms about which the officer reported in Defendant's case. There is not a commonsense conclusion accessible to the average person that these observations are indicative of someone who is under the influence of an intoxicant. These are not “behavioral observations.” Rather, the evaluations and observations in question are medical observations that require knowledge of the health sciences, medicine, or perhaps toxicology to fully comprehend. See Id. at 319. It is simply not commonsense that a person who is under the influence of an intoxicant, be it marijuana or anything else, would have trouble estimating the passage of thirty seconds, would have tremors, raised taste buds, or other eye symptoms.
Because the evaluation and observations constitute scientific evidence, the State must establish the foundation required by Harper v. State, 249 Ga. 519 (1982), before the Court can admit the evidence. Harper requires that the court make the determination that the evidence “has reached a scientific stage of verifiable certainty… [and that the] procedure rests upon the laws of nature.” Id. at 525. The court makes such a determination from “the evidence available to [it];” this may include expert testimony, exhibits, treatises, or the rationale of cases from other jurisdictions. Id. at 25-26. Once the evidence is “recognized in a substantial number of courts” the court may take judicial notice that the scientific evidence has reached a stage of verifiable certainty, the way that a court may admit the results of the HGN evaluation. See Harper, 249 Ga. at 525.
The Appellate Courts of this State have not considered the evaluation and observations at-issue in this case in the way that the courts have considered the HGN evaluation. Unless the State establishes the foundation required by Harper, the evaluations, the observations, and any conclusions drawn from them should not be admitted against the defendant.
Defendant instead contests the science and the validity of using these evaluations and observations to form the basis of an opinion that the Defendant was under the influence of intoxicants at the time of his arrest. Because the officer's investigative technique constituted the gathering of scientific evidence that has not been recognized by a substantial number of courts and has not been utilized for a significant period of time with expert testimony being offered in case after case, the trial court is not authorized to admit the evidence without the proper foundation. See, Izer v. State, 236 Ga. App. 282 (1999).
The Defendant respectfully requests that this Honorable Court enter an order that the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjuctiva, and raised tastebuds, in the context of being indicia of a person who is under the influence of drugs to the extent that the person is less safe to drive, are scientific evidence. As such, the Court should require the State to meet the foundation required under Harper before the Court can receive the evidence in question.
If you have questions regarding a Georgia DUI drugs case or a motion to exclude DRE evaluations in a DUI drugs case, contact Ben Sessions of The Sessions Law Firm at (470) 225-7710.
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