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State v. Pierce3/12/2004
ty:
"Clearly HGN testing, although far from a complex procedure, may be subject to human error in its administration or interpretation; however, such potential for error does not impact on the validity of the HGN test; no procedures are infallible. An accused may always introduce evidence of the possibility of error.... Such evidence **729 would relate to the weight rather than the admissibility...."
(Citations and punctuation omitted) Id. Moreover, the defendant bears the burden of showing any error in the administration of the test. Id.
Here, Pierce presented evidence that the HGN test had not been properly administered through his counsel's cross-examination of O'Hare. The officer admitted that he failed to ask Pierce certain qualifying questions before administering the field sobriety tests although it is his practice now, after further training, to ask such questions. O'Hare also conceded that during the HGN test, he failed to make the requisite number of passes in observing Pierce and failed to hold his observation for the recommended time period. He also agreed with defense counsel that it should take over one minute to administer the test, but his test on Pierce took only 35 to 36 seconds. He agreed that he had not performed the test properly. O'Hare further acknowledged that the training manual provides that if any element of the standardized field sobriety test is changed, the validity of the test is compromised. He admitted that he currently trains those in his charge to perform the tests exactly as proscribed because otherwise, the results can be compromised.
*238 But this evidence does not mandate the exclusion of the HGN test results. Rather, it goes to the weight and not the admissibility of the test. See Lattarulo v. State, 261 Ga. 124, 126(3), 401 S.E.2d 516 (1991); Cann-Hanson v. State, 223 Ga.App. 690, 691(1), 478 S.E.2d 460 (1996). Accordingly, the trial court erred in excluding the results of the HGN evaluation.
3. The state also asserts that the trial court erred in granting Pierce's motion to suppress and motion in limine on the ground that the officer lacked probable cause to arrest him for DUI. This ruling was necessarily premised on the trial court's exclusion of the results of the field sobriety tests and Pierce's statements after O'Hare began administering the tests. Given our ruling in Divisions 1 and 2 above and our review of the record, we find that the evidence supports a finding that O'Hare had probable cause to arrest Pierce for DUI, and thus the trial court erred in granting the motions. See Disharoon v. State, 263 Ga.App. 787, 589 S.E.2d 339 (2003); Dougherty v. State, 259 Ga.App. 618, 578 S.E.2d 256 (2003).
Judgment reversed.
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