Foster v. State

204 Ga. App. 632 (1992)

420 S.E.2d 78

FOSTER v. THE STATE.

A92A0754.

Court of Appeals of Georgia.

Decided June 10, 1992.

Reconsideration Denied June 23, 1992.

Moore & Davidson, W. Keith Davidson, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Allison L. Thatcher, Assistant Solicitors, for appellee.

CARLEY, Presiding Judge.

Appellant was tried before a jury and found guilty of driving under the influence. He appeals from the judgment of conviction and sentence entered on the jury verdict.

The sole enumeration of error relates to the admission of evidence relating to the Horizontal Gaze Nystagmus (HGN) test that was administered to appellant by the arresting officer. A review of the transcript does suggest that the trial court may have erred in allowing into evidence testimony as to appellant's physical responses to the HGN test that was administered to him, without preliminary proof that the HGN test has gained general acceptance in the scientific community as an accurate and reliable means of ascertaining whether a person is intoxicated. Absent such preliminary proof, the results of a scientific procedure or technique should not be admitted into evidence. See Harper v. State, 249 Ga. 519, 526 (1) (292 SE2d 389) (1982). However, a review of the transcript also clearly demonstrates that, even if the testimony should not have been admitted, the error was harmless. The admissible and probative evidence as to appellant's intoxication was otherwise overwhelming and the jury's finding that appellant was driving under the influence could not have been affected by the evidence as to appellant's physical responses to the HGN test. "[C]onsidering all the evidence presented, the error[, if any,] in admitting [the evidence regarding the HGN test] was harmless." Wallin v. State, 248 Ga. 29, 32 (5) (279 SE2d 687) (1981).

Judgment affirmed. Pope and Johnson, JJ., concur.