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Wilson v. State1/27/1998
a source other than appellant. Accordingly, we are unable to say that the error was harmless. Schultz, 106 Md. App. at 181.
Here, no chemical test was administered to appellant. Trooper Redmond testified, however, that he detected a strong odor of alcohol, appellant had trouble with the walk and turn sobriety test, and was, in his opinion, intoxicated. At trial, appellant denied that he had been drinking. Moreover, the passenger corroborated that appellant had not consumed alcohol that evening. Further, appellant testified that he told the trooper that he was taking prescription medicines and that he had injured his leg in an accident, which made it difficult for him to balance. Appellant also explained that he was tired because he had been up since 4:00 a.m. the previous day.
It is also significant to us that, during closing argument, the prosecutor expressly relied on Trooper Redmond's opinion testimony concerning the blood alcohol level, based on the HGN test. She stated that the trooper testified that appellant was "intoxicated and that he believed he had [a blood alcohol content of] at least point one zero or above level of alcohol...." When defense counsel objected, the court overruled the objection. Then, the prosecutor reiterated to the jury that the trooper gave "his expert opinion that he believed that the defendant was driving while intoxicated and that he had a BAC, a blood alcohol content of at least point one zero. That was his opinion."
Appellant has not specifically attacked the admission of the trooper's testimony based on the trooper's lack of qualifications to ascertain Wilson's BAC from the HGN test. Appellant suggests that no trooper would be qualified to give such testimony on the basis of the HGN test. We observe that even if such opinion testimony were, in the abstract, ordinarily within the purview of the judge's discretion, such testimony was clearly inappropriate here. As we mentioned earlier, the State never propounded any questions to the trooper to establish that he was qualified to ascertain a specific blood alcohol level based on HGN testing.
In sum, if the error in Schultz was not harmless, the erroneous admission of Trooper Redmond's expert opinion that he believed appellant probably had a BAC of at least .10 was also not harmless. We cannot ignore "the heightened credence juries tend to give scientific evidence. . . ." State v. Helms, 345 N.C. 578, 504 S.E.2d 293, 296 (1998). Indeed, "there is a reasonable possibility that had evidence of the HGN test results not been erroneously admitted a different outcome would have been reached at trial" concerning the DUI charge. Id. Because we cannot say the error did not contribute to the jury's conviction as to the DUI charge, we must vacate the DUI conviction.
As we observed, appellant complains that he was improperly sentenced as a subsequent offender with regard to the DUI charge. See Md. Code (1977, 1998 Repl. Vol.), 27-101 of the Transportation Article; Md. Rule 4-245. Because the precise problem about which he complains might not occur if appellant is convicted at a retrial, we decline to consider appellant's second contention.
JUDGMENT OF CONVICTION FOR UNSAFE LANE CHANGE AFFIRMED; JUDGMENT OF CONVICTION FOR DUI- REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR ST. MARY'S COUNTY FOR FURTHER PROCEEDINGS.
COSTS TO BE DIVIDED EQUALLY BETWEEN APPELLANT AND ST. MARY'S COUNTY.
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