Even assuming without deciding that it was error to admit evidence of a horizontal gaze nystagmus (HGN) test administered by the police officer who arrested appellant for drunk driving, any error was harmless given the other evidence of appellant’s guilt.
Officer Aicher observed appellant’s vehicle traveling entirely on the road shoulder until the shoulder “abruptly ended” and appellant merged into the actual traffic lane. He crossed a double yellow line three times and entered the opposing lane of traffic. Appellant’s vehicle was straddling a left-turn lane and the through lane of traffic when he made a left turn.
Aicher stopped appellant and asked for his driver’s license and registration. He detected a strong odor of alcohol from the driver’s side window and appellant’s breath. Appellant’s eyes were bloodshot and he slurred some of his words. He admitted to drinking a beer.
Aicher asked appellant to get out of the vehicle and walk to the patrol car. Aicher continued to smell alcohol and noticed appellant swayed a bit while walking.
Appellant continued to sway after he stopped walking. He explained that he suffered a leg and knee injury. Aicher asked him again how much he had to drink. Appellant admitted to two beers. Aicher administered field sobriety tests. Appellant agreed to the HGN test.
Based on the test results, Aicher arrested appellant for drunk driving. At the jail, a breath test administered about 90 minutes after the initial stop showed appellant’s blood alcohol level was .09.
He was indicted for DUI, third offense. The court denied his motion to exclude the HGN test results. The court denied the motion. The jury found him guilty and recommended a four-year sentence, which the court imposed.
“Appellant argues that the trial court erred in denying his motion in limine to exclude evidence of the HGN test performed by Officer Aicher. Appellant contends that the test is scientific in nature yet lacked sufficient evidence of reliability for admission. Alternatively, he argues that even if the evidence is sufficiently reliable to justify admission, it is unfairly prejudicial as compared to its limited probative value. …
“Even assuming, without deciding, that the evidence of HGN testing was scientific, lacked sufficient foundational evidence of reliability, and was unfairly prejudicial compared to its probative value in this case, this Court holds that any error in the admission of the HGN testing evidence was harmless when considered in light of the totality of the evidence of guilt. …
“Appellant was originally seen driving along the shoulder of the road in lieu of a legal lane of traffic. After merging into a legal lane of traffic, appellant drifted repeatedly in and out of the oncoming lane of traffic. He then drove in the middle of two lanes before being pulled over by Officer Aicher.
“During the ensuing interaction, there was a strong odor of alcohol emanating from appellant, his eyes were bloodshot, he occasionally slurred words, and he was unable to walk or stand without swaying.
“Appellant originally reported having one beer earlier that evening, but later admitting he had ‘one tall boy Mickey’s Malt Liquor’ and a beer, with his last drink just thirty minutes before being stopped. Appellant was able to recite the alphabet from D to S only at a slow speed and with some difficulty.
“After his arrest, he told Officer Aicher that this charge would be his ‘third strike’ because of two prior DUIs and that he guessed ‘the higher alcohol content of the malt liquor got [him].’
“A breathalyzer test conducted over an hour and a half after the traffic stop registered a blood alcohol content that was still over the legal limit.
“On these facts, this Court concludes that substantial justice was reached. There is overwhelming evidence of guilt in this case. Therefore, this Court holds that any error in admitting the HGN evidence was harmless.”
Goldberg v. Commonwealth, Record No. 0007-19-1, Nov. 19, 2019. CAV (Huff) from Virginia Cir. Ct. (Padrick). Roger A. Whitus for appellant, Kelsey M. Bulger for appellee. VLW 019-7-203, 7 pp. Unpublished.