North Carolina Court of Appeals Overturns Admission of Expert Witness Testimony of HGN Test Results

Trial court had admitted expert witness testimony of officer who used HGN (Horizontal Gaze Nystagmus) to arrest defendant of driving while impaired.  The appeals court overturned the opinion and ordered a new trial.

Facts – This case (State of North Carolina v. William Edward Godwin, III – Court of Appeals of North Carolina – April 19th, 2016) in an appeal filed by the defendant after he was convicted of driving while impaired.  The main part of the appeal focused on the admission of Alcohol, Drug & DUI Testing Expert Witness testimony by the trial court.  The appeals court was asked to address the following question:  Does North Carolina Rule of Evidence 702(a1) require a witness to be qualified as an expert before he can testify on impairment related to results from a HGN test?

After being pulling over the defendant (Godwin), police officer Daniel Kennerly administered three field sobriety tests:  the Horizontal Gaze Nystagmus (HGN) test, the one-leg stand, and the walk-and-turn.  After failing these tests, Godwin was placed under arrest for driving while impaired and was convicted by the Mecklenburg County District Court.  He appealed the decision to the Criminal Session of the Superior Court where he argued that officer Kennerly’s expert witness testimony of the HGN test should be excluded because he had to be qualified as an expert under Rule 702 of the North Carolina Rules of Evidence.  The court allowed the testimony and Godwin was subsequently convicted of driving while impaired.  This appeal follows that conviction.

Discussion: Godwin appeals his conviction on the grounds that the trial court erroneously admitted Kennerly’s testimony.  He states that under Rule 702(a1), testimony regarding HGN results must be performed through a properly qualified witness who has been accepted as an expert by the trial court.  Godwin maintains that the trial court allowed Kennerly’s testimony as a lay witness, which misapplied the law.

Rule 702(a1) requires that a witness must be qualified as an expert by knowledge, still, training, or education before he can testify as to the results of an HGN test.  He may testify only on the issue of impairment and not on the specifics of alcohol concentration.  In addition, only an individual who has successfully completed HGN training can administer the HGN test.

Godwin argued that the lower court erred when it decided that officer Kennerly did not have to be qualified as an expert in HGN.  In fact, the state never offered Kennerly as an expert in HGN.  However, Kennerly did opine that Godwin could have been impaired due to his consumption of alcohol and that his mental and that his mental and physical faculties were impaired due to his intake of alcohol.  This, argued Godwin, is directly against Rule 702(a1), and the appeals court agreed.

The appeals court ruled that, if this error not occurred, the jury would have reached a different decision in the lower court.  Thus, they ruled that the conviction should be thrown out and that Godwin is entitled to a new trial.

Conclusion: The lower court erred in allowing the testimony of officer Kennerly.


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