CASE NAME:  Georgia vs. Council (Case No. 16-T-18312; December 14, 2016)


On November 2, 2016, the above-styled case came before this court for a specially set trial, with pending motions filed by the Defendant to be heard immediately prior to trial. The Defendant’s Second Amended Motion in Limine and the evidence produced at the motion hearing through witness testimony and exhibits focused on two issues: (1) exclusion of the Horizontal Gaze Nystagmus (HGN) for lack of proper administration; and (2) whether the administration of the breath alcohol test, pursuant to O.C.G.A. § 40-5-67.1(b), was constitutional. The constitutional issues presented focused on the Georgia Constitution 1983, Article I, Section I, Paragraph XVI.

O.C.G.A. § 40-5-67.1(b) states, in part, as follows: “Georgia law requires you to submit [to the state-administered test] …. Your refusal to submit to the required testing may be offered into evidence at trial.” (Emphasis supplied). Georgia Constitution 1983, Article I, Section I, Paragraph XVI reads, “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” (Emphasis supplied).

The State presented the testimony of Officer Brian Nadeau of the Cobb County DUI Task Force, who had been dispatched to the scene of an accident to investigate a possible DUI, as well as the video from his patrol car. The State also submitted the testimony of Cobb County Police officer Brian Daniel, who worked the wreck, and his video. Further facts will be set out as necessary for decision of the three issues presented.


  1. Was the HGN test, as offered in this case, admissible at trial?
  2. Were the breath test results from the Intoxilyzer 9000 admissible in the trial at case?


  1. No. Under both the facts presented in this case and the law concerning the scientific evidence the HGN test should be excluded at trial.

Officer Nadeau asked the Defendant to get out of the car and walk back toward his patrol car. During this time, he noticed blood on her shirt. The portable breath test he administered to her was positive for alcohol. Officer Nadeau began the walk and turn test at this point, but stopped because, “I realized my mistake in starting with that test.” He then performed the HGN test on her. Officer Nadeau testified as to the proper method of performing the test and, when specifically asked the leading question, answered in the affirmative that he had “substantially complied” with his training. This court finds this not to be true. The basis for this finding is as follows:

Officer Nadeau himself testified that he performed only one pass for lack of smooth pursuit instead of the required two passes; however, were that the only problem, this court could find substantial compliance. It is the manner of performing the entire HGN that is the problem. When Officer Nadeau’s video was played, the court noticed that the stimulus he was holding appeared to be three to four inches above the Defendant’s head and about six inches in front of her face, which caused her to hold her head tilted backwards. The court’s attention was drawn to this fact because it was in conflict with the officer’s own testimony concerning the proper way to administer the HGN test and in conflict with this court’s prior understanding, gathered through many hearings and trials in DUI cases, as well as training at seminars sponsored by the Institute of Continuing Judicial Education (all of which were that the stimulus should be held slightly above eye level and about 12 inches from theDefendant’s face).

The Defendant presented the testimony of Ron Lloyd, a former officer with the Georgia State Patrol. He testified that his first training on administration of Field Sobriety Tests was in 1992, and that he has continued to perform such tests since then. He is now certified as a Drug Recognition Expert Trainer and continues to perform such training, which includes the correct manner of performing the HGN. The court found him to be an expert witness in this field. Mr. Lloyd then testified as to the correct method for performance of the HGN test. His testimony, after viewing the manner in which Officer Nadeau performed the test on the Defendant in this case, was that Officer Nadeau had done it incorrectly because of the number of passes and because the stimulus was held too high. He also testified that performing the test incorrectly will greatly increase the likelihood of a false positive. Turning to the question of whether or not the test is admissible, the issue of the HGN test’s admissibility has been considered by the appellate courts of this State on numerous occasions and usually found admissible. This has held true whether or not the officer performing the test adhered to proper methods, unless “the officer substantially departed from the principles and procedures that [were] the basis for the [HGN test’s] reliability.” State v. Tousley, 271 Ga. App. 874, 877 (2005).

The admissibility of evidence based on a scientific principle or technique such as the HGN test is analyzed as follows: “the party offering the evidence [must show] that (1) the general scientific principles and techniques involved are valid and capable of producing reliable results, and (2) the person performing the test substantially performed the scientific procedures in an acceptable manner.” [Cite omitted.] With respect to the first prong, “[i]n Harper v. State, [249 Ga. 519 (1982)], the Supreme Court of Georgia explained that evidence 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.”

[The Defendant] correctly concedes that the first prong was met here because “the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community meeting the Harper v. State standard and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” [Cite omitted.] Nevertheless, [the Defendant] challenges the second prong, i.e., whether the State demonstrated that the officer substantially performed the HGN test in an acceptable manner.

Absent a fundamental error . . . ·”evidence of the possibility of error goes only to the weight of the test results, not to their admissibility.” [Cite omitted.]

Parker v. State, 307 Ga. App. 61, 63 – 64 (2010).

Our Courts have held that, notwithstanding errors in administration of the test, where the officer testified as to his training and the method used to administer the test, and where there is sufficient evidence to authorize the trial to conclude the officer “substantially performed” the test in accordance with his training and guidelines, the trial court’s ruling denying the motion to suppress the HGN results will not be disturbed on appeal. Here, the arresting officer testified no differently than the defense expert as to the proper method for administering the test. He also testified that he did it properly, holding the stimulus about two inches above the Defendant’s eye level. Based on this, Officer Nadeau gave an opinion that he had “substantially complied” with his training.

After Officer Nadeau’s opinion was given, the video, showing clearly he did not comport with his training, was played by the State. The State, which had the burden of proving the second prong of admissibility of a scientific test—”the person performing the test substantially performed the scientific procedures in an acceptable manner”—produced conflicting evidence on that point. Thus, the State offered no evidence sufficient to explain away this clear inconsistency. Officer Nadeau’s conclusory answer of, “Yes,” when asked whether he had substantially complied with his training does not supply that explanation.

The Defense offered an expert witness who, after reviewing the video, gave his opinion that the officer did not perform the test properly. He also testified that when the test is done in the manner it was conducted by Officer Nadeau in this case, there is a substantial likelihood of a false positive.

This court finds the testimony of expert witness Ron Lloyd more credible than that of Officer Nadeau on whether or not the officer substantially performed the HGN test in an acceptable manner. Officer Nadeau did not “substantially perform[] the scientific procedure in an acceptable manner,” Parker, supra. Said another way, “the officer substantially departed from the principles and procedures that [were] the basis for the [HGN test’s] reliability.” State v. Tousley, supra. The demonstrated failure to follow his training, combined with the expert testimony of defense expert Ron Lloyd that the specific failures on the part of the officer would create a substantial likelihood of a false positive, show a departure from the principles that form the basis for the HGN test’s reliability.

At the time of the hearing, this court announced in open court that it felt constrained by the precedents of the appellate courts of this State to deny the Defendant’s Motion in Limine to exclude the HGN test. However, upon further research, and analysis of the evidence, the court finds and decides that in this particular case, under the facts presented, and under the law concerning admission of scientific evidence, the HGN should be excluded at trial.

  1. No. Under the facts of this case, the Court finds that the defendant was completed to do an act, and to do that act two times, to produce evidence against herself in violation of her Georgia Constitutional right against self-incrimination. Therefore, the results of the Intoxilyzer 9000 breath test must be suppressed.

Defendant challenges the admissibility of the results of the Intoxilyzer 9000 Breath Test based on the Georgia Constitution 1983, Article I, Section I, Paragraph XVI and under O.C.G.A. § 24-5-506. While these provisions are similar to the United States Constitution, in that they protect the criminal defendant from incriminating herself, Georgia courts have historically held that the Georgia Constitution and statutes provide greater protection in this regard than the United States Constitution. That forms the issue herein raised.

In order to decide this issue, the following additional facts are relevant. When the Defendant got out of her car, she had her phone in her hand; it was taken away from her. Throughout her encounter with Officer Nadeau, she indicated she wanted to make phone calls before she made decisions, including whether to take the field sobriety tests and the Intoxilyzer 9000 Test in question here. Mixed in with requests to call a lawyer were requests to call someone to pick up her daughter from soccer practice. Before the Defendant’s phone was confiscated, she had called her boyfriend and told him she had been in an accident. While the DUI investigation was going on, he had come to the scene. Officer Daniel (not the arresting officer of the Defendant) had prevented the boyfriend from speaking with the Defendant and had told him to leave the scene, threatening him with jail if he did not do so immediately. The request to pick up Defendant’s daughter was not relayed to the boyfriend.

The court is unaware of the time of the accident. The Defendant’s testimony was that she was on her way to pick up her daughter when the wreck happened. The court’s record contains an affidavit executed by the arresting officer alleging the offenses were committed at “20:57” on September 15, 2016, while the citations for DUl, Failure to Maintain Lane, and Following Too Closely show 12:51 a.m. on September 16, 2016.) The evidence was that at least three people had already left the scene in ambulances before Officer Nadeau arrived on the scene. Until he got there and at least began his nUl investigation, the Defendant thought she was going to leave with her boyfriend, who she had called to the scene for that purpose. Both officers testified as to the Defendant’s concern about her daughter. It was clearly dark and getting later and later.

At one point, the officer told the Defendant that he was also concerned about her daughter and that, even though it was not the usual practice and procedure, once she took his breath test, he would allow her to make a telephone call. Defendant finally agreed to take the breath test designated by the officer. Once she took the test, he allowed her to use the bathroom and to call and make arrangements to have someone pick up her daughter.

The Defendant presented the testimony of Michael Hlastala, Ph.D., a retired professor of Medical Physiology at Washington State Medical School. Dr. Hlastala has published 31 peer-reviewed articles regarding breath testing machines like the Intoxilyzer used here and on the breath testing procedure. He testified that taking such a test requires substantial physical effort on the part of the Defendant. The Defendant cannot simply breathe in a relaxed way into the breath testing device tube. Also, the Defendant must wrap her lips tightly around the tube and seal it shut. Without a strong, sustained expulsion of deep lung air from the Defendant’s lungs into the machine, two separate times, a valid result cannot be obtained. There is no way to get a valid test result on the Intoxilyzer from a passive subject. Therefore, this procedure is quite different from a blood draw in which a defendant exerts no effort while the phlebotomist withdraws blood from her body.

Defendant argues that requiring her to perform the acts necessary to produce a valid result on a breath test, without warnings and advice of her right not to do so, violated her rights under the Georgia Constitution. This court agrees.

In Creamer v. State, 229 Ga. 511 (1972), the Georgia Supreme Court, recognizedbthat, “[ w]hile the language in the United States Constitution has long been construed to beblimited to ‘testimony’ the Georgia Constitution has been construed to limit the State from forcing the individual to present evidence, oral or real.” Id. at 515. In that case, however, the Court drew a distinction between submitting to an act by someone else on his body and being compelled to act himself. “In the case sub judice, the defendant is forced to submit his body for the purpose of having the evidence removed. He is not forced to himself remove it and therein lies the distinction in this case from the Aldrich case and similar cases.”Id. at 518. The cases distinguished by the Court in Creamer are instructive here.

“By the constitution of this state ‘no person shall be compelled to give testimony tending in any manner to criminate himself.’ Nor can one, by force, compel another, against his consent, to put his foot in a shoe-track for the purpose of using it as evidence against him on the criminal side of the court …. “

Day v. State, 63 Ga. 667, 669 (1879). In Elder v. State, 143 Ga. 363 (1915), the Sheriff instructed the handcuffed defendant to put his foot into a footprint and the defendant complied. The defense in Elder, citing Day, appealed on the ground that the testimony concerning the footprint matching should not have been admitted. The State argued that Elder voluntarily complied with the Sheriff’s instructions instead of being forced, as was the case in Day. The Supreme Court was not persuaded and the case was reversed. In its evaluation of the issue, the court distinguished the case of Franklin v. State, 69 Ga. 36,43-44 (1882), in part, because the Defendant in that case remained passive while shoes, which were afterwards used as evidence of his guilt, were pulled from his feet by others.

The Georgia Supreme Court has held over and over that the word “testimony” in the Georgia Constitution embraces any evidence the defendant is compelled to produce. On the other hand, the Georgia Constitution allows evidence to be taken from the defendant. See, Creamer, supra. Relying on Creamer, and citing State v. Armstead, 152 Ga. App. 56 (1979), the Court of Appeals in Price v. State, 194 Ga. App. 453 (1990), observed that the distinction to be drawn is “between forcing an accused to do an act, and compelling him to submit to an act. [T]he latter ‘takes evidence from the defendant’ [Cite omitted], and is constitutionally acceptable, the former compels the defendant, in essence, to give evidence which violates an individual’s right not to incriminate himself.” Price, 194 Ga. App. at 454.

Turning to the case before the court, the State points to numerous cases, including State v. Carraway, 251 Ga. App. 469 (2001), which have held that Miranda warnings are not required before an in-custody defendant makes a decision about whether or not to perform a State-administered breath test. All of those cases are either based on the United States Constitution solely, or, if they mention the Georgia Constitution at all, do so essentially in passing. There is no real analysis of the application of the Georgia Constitution.

The issue here is not the question of whether or not some magic words such as a Miranda warning were, or should have been, read to the defendant. Instead, the issue is whether, under the evidence presented before this court, the results of the Intoxilyzer 9000 test she was required to produce are admissible against her as evidence of a crime. The Georgia cases excluding improperly obtained evidence in violation of a defendant’s Georgia Constitutional right against self-incrimination far pre-date Miranda v. Arizona, 384 U.S. 436 (1966).

In State v. Coe, 243 Ga. App. 232, 234 (2000), the Court of Appeals held that Georgia law on self-incrimination is not implicated in the decision of whether to take a urine test. In doing so it stated as follows: “The distinction lies between performing incriminating acts, such as field sobriety tests, and submitting to breath, blood, or urine tests. The State ‘cannot force a defendant to act, but [nevertheless] can, under proper circumstances, produce evidence from his [body].'” Id. (citing Creamer, supra at 517 – 518(3) (surgical removal of bullet) and Strong v. State, 231 Ga 514,519 (1973) (removal of blood from unconscious suspect». Coe, like the other cases in Georgia Constitutional jurisprudence, rests on the question of whether the defendant was required to act or whether she was acted upon.

Clearly, based upon the testimony of Dr. Hlastala, the breath sample required to produce a test result in this case was not something taken from the Defendant, as in Creamer, but was evidence produced through the effort of the Defendant, as in Day, supra; Elder, supra; Aldrich v. State, 220 Ga. 132 (1964); Evans v. State, 109 Ga. 519 (1899); etc. The Defendant expressed a desire to ask an attorney for advice. Further, she was concerned about the welfare of her daughter. Her telephone had been taken from her hand and kept away from her. She had been prevented from contacting anyone, either about advice on whether to take the test or about picking up her daughter, prior to blowing into the machine. She was under arrest when answering questions and producing evidence. As time wore on, she was clearly becoming more and more worried about her daughter. The officer refused to let her call anyone, but told her that after she took his test he would let her get someone to pick up her daughter. She was not given the option of making that telephone call without taking the test. She was required to expel air in sufficient quantity, with sufficient force, after sealing her lips tightly around a tube to produce a reading, and then she was required to do so again. This was after having been read the Implied Consent warning which twice told her she was “required” to take the test.

Under the particular facts of this case, the court finds that the defendant was compelled to do an act, and to do that act two times, to produce evidence against herself in violation of her Georgia Constitutional right against self-incrimination. Therefore, the results of the Intoxilyzer 9000 must be suppressed.

WHEREFORE, it is ordered that the results of the Horizontal Gaze Nystagmus test and the Intoxilyzer 9000 test are to be excluded upon the trial of this case.

SO ORDERED this 14th day of December, 2016.

Melodie H. Clayton
Judge, State Court of Cobb County