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Lancaster v. State8/17/1999
In the Court of Appeals of Georgia
BA-042C
Philip Lancaster appeals from the following misdemeanor convictions: (1) driving under the influence while it was less safe for him to do so; (2) failure to maintain a lane; and (3) possession of an open container of alcoholic beverage while operating a vehicle. Lancaster contends his convictions should be reversed because (1) he was entitled to a mistrial when the State elicited testimony regarding his exercise of his right to remain silent, (2) the trial court erred when it allowed the State to introduce his admission that he consumed eight or ten beers, (3) the trial court should not have allowed the police officer to testify about his performance on a horizontal gaze nystagmus ("HGN") test because it was not properly administered, and (4) insufficient evidence supports his convictions. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdict, the record shows that on October 1, 1995, at 12:21 a.m., Lancaster was driving on a four-lane divided highway when he swerved from the right lane into the left lane and almost collided with a patrol car driven by Officer Harper. Harper testified that "had to slam on brakes to keep from hitting him." When Officer Harper saw Lancaster then cross over the outside edge of the right line by approximately two feet, he turned on his blue lights and stopped Lancaster. Lancaster pulled over to the side of the road abruptly, which caused his wheels to slide.
When Officer Harper approached the driver's side of the Ford Explorer driven by Lancaster, he observed a female passenger who appeared to be intoxicated and smelled a strong odor of alcoholic beverages coming from the Explorer. When he spoke with Lancaster, Harper smelled alcohol on Lancaster's breath and noticed that his speech was slurred, his eyes were bloodshot and watery, and his face was red and flushed. Lancaster also ran his words together, "was thick tongued," and "seemed to be confused about his whereabouts." When Lancaster denied he had been drinking, Harper performed an HGN test on Lancaster as "the beginning stage of field sobriety evaluations."
Officer Harper testified that he was trained and certified to perform this test, which involves tracking the movement of a person's eye while it follows an object moved horizontally in front of the person's face. He further testified that a lack of smooth tracking, jerkiness before 45 degrees, and jerkiness at maximum deviation indicate the presence of alcohol in a person's system. When Harper performed this test on Lancaster, he observed a lack of smooth tracking, jerkiness before 45 degrees, and very distinct jerkiness at maximum deviation in both eyes.
Believing that he was probably dealing with a less safe driver, Harper asked Lancaster to step out of the vehicle to perform additional field sobriety evaluations. As Lancaster exited the vehicle, he staggered and grabbed the top of the door, as well as the top of his Explorer for support. Lancaster also staggered when he walked to the back of the Explorer at Harper's request. Before asking Lancaster to perform additional field sobriety tests, Harper asked him if he had any physical impairments that would prevent him from balancing, and Lancaster replied that he did not.
Officer Harper testified that Lancaster was unable to maintain his balance during the one-legged stand after two attempts and two demonstrations by Harper. Lancaster also failed to perform the finger dexterity count satisfactorily after two demonstrations by Harper. Harper then asked Lancaster again whether he had been drinking and Lancaster denied it. When Harper told Lancaster, "Come
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