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CUMBIE v. CITY OF MONTGOMERY3/21/1997
Phillip Lynn Cumbie appeals from his conviction and sentence for driving under the influence, pursuant to the City of Montgomery Code ch. 1, § 1-9 (1980). We affirm.
The testimony at trial showed that at approximately 3:00 a.m. on May 3, 1995, Cumbie drove a pickup truck across the center line of the road, causing a police cruiser in the oncoming lane to run off the road to avoid a head-on collision. Officer Guy Naquin and his partner pursued Cumbie and stopped him. Cumbie got out of the truck and staggered sideways. When he got out, he left the truck in reverse gear and it rolled backward toward the officers, who yelled at Cumbie to stop the truck, and he did. Officer Naquin testified that when they stopped Cumbie, his speech was very slurred, he had difficulty understanding questions, he could not stand up without holding onto his truck, and he had a strong odor of alcohol on his breath. Officer Naquin also testified that Cumbie could not "divide his attention" and perform two activities, such as answering a question and searching for his driver's license, at the same time. Based on these observations, Officer Naquin suspected that Cumbie was under the influence.
Office Naquin testified that he did not conduct certain field sobriety tests — the one-legged stand test or the walk and turn test — because those tests involved balance and divided attention skills, and the officer did not believe that Cumbie could perform them without falling and hurting himself. The officer administered the horizontal gaze nystagmus (HGN) test, which involves observations of a person's eyes as they focus on an object moved gradually in front of them. In a hearing outside the jury's presence, Office Naquin testified as to the HGN test and his experience in administering it. At the conclusion of the hearing, defense counsel objected to the evidence on the ground that "Alabama has not adopted HGN as scientifically acceptable as determining a person's alcohol content as being above or below legal intoxication." The trial court overruled the objection and permitted Officer Naquin to testify regarding the HGN test. Officer Naquin also stated that Cumbie's performance on the HGN test indicated to him that Cumbie was impaired to the point that he could not safely drive and that the impairment might be alcohol related. The officer further testified that his opinion that Cumbie was unable to drive safely was based on his observations of Cumbie's driving, his observations of Cumbie's behavior, and his investigation.
Officer Naquin testified that he arrested Cumbie for driving under the influence and that he then took Cumbie to the police station. He stated that Cumbie declined to take a breath test.
The jury found Cumbie guilty of driving under the influence , and the trial court adjudicated Cumbie guilty. The court sentenced Cumbie to six months in jail, and suspended all but 48 hours of the sentence.
On appeal, Cumbie argues only that the trial court erred in admitting evidence regarding the HGN test, because, he says, the prosecution failed to establish that the test was scientifically reliable and failed to prove that Officer Naquin was qualified to administer the test. We need not reach this issue, however, because even if evidence regarding the HGN test was erroneously admitted, it was harmless beyond a reasonable doubt. Although not dispositive of the issue, we note that the evidence of Cumbie's intoxication, even without the evidence provided by the HGN test, was overwhelming. After forcing the police officers to drive off the road to avoid a head-on collision, Cumbie, at the officers' insistence, had to return to his truck because he had left it in reverse gear. He staggered,
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