The opinion of the court was delivered by: Frye, Justice.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 127 N.C. App. 375, 490 S.E.2d 565 (1997), finding harmless error and affirming judgment entered by Greeson, Jr., J., on 24 April 1996 in Superior Court, Union County. Heard in the Supreme Court 9 March 1998.
Defendant appealed his conviction of driving while impaired in violation of N.C.G.S. § 20-138.1. He contended that the trial court erred by admitting into evidence the results of a horizontal gaze nystagmus (HGN) test without the establishment of a proper foundation. Defendant contended that the HGN test is a scientific test requiring expert testimony as to its reliability. The Court of Appeals agreed that the State failed to lay a proper foundation at trial for admission of the HGN test results. Nevertheless, the panel concluded that the error was harmless and upheld defendant's conviction. We agree with the Court of Appeals on the admissibility of the HGN test results but reverse on the issue of harmless error.
The State's evidence adduced at trial tended to show the following: Officer E.P. Bradley (Bradley) had stopped at an intersection in Monroe, North Carolina, at approximately 4:00 a.m. on 30 December 1995 when defendant drove past. Bradley noticed the tail lights of defendant's automobile were not operating and, while following the vehicle, observed it weave from the left side of its lane of travel to the right, striking the curb with the right front tire. Bradley activated his blue light, and defendant's automobile made a wide right turn onto a side street, veering into the opposite lane before coming to a stop.
Bradley approached the vehicle and immediately noticed a strong odor of alcohol as defendant rolled down the driver's side window. Bradley requested that defendant produce his driver's license, and the latter indicated "he didn't have any license." Bradley noted defendant's speech was "mumbled" and asked him to exit his vehicle. As defendant did so, he was unsteady on his feet. Bradley further observed defendant's eyes were bloodshot, his shirt tail was hanging out, and his clothes were soiled. Later, as defendant sat in the patrol car, Bradley noted a strong odor of alcohol emanating from defendant.
Thereafter, Bradley administered an HGN test. Bradley directed defendant to focus upon a pen held twelve to fifteen inches from defendant's face as Bradley slowly moved the pen out of defendant's field of vision towards the latter's ear. Bradley testified, over strenuous objections by defendant, that twitching of defendant's eyes during administration of the test would be associated with alcohol intoxication. On redirect examination, Bradley stated he had completed a forty hour training class dealing with the HGN test.
Based upon the results of the HGN test and his observations concerning defendant's operation of his vehicle and the odor of alcohol on defendant's breath, Bradley formed the opinion that defendant had consumed a sufficient quantity of alcohol so as to have impaired his mental and physical abilities. Bradley then placed defendant under arrest and transported him to the county jail, where defendant refused administration of an intoxilyzer test. At the county jail Bradley administered other sobriety measuring tests known as the one-legged stand and the walk-and-turn test. Defendant performed poorly on both tests.
Defendant presented no evidence at trial. The jury returned a verdict of guilty of driving while impaired.
Following his conviction, defendant was sentenced to a term of two years imprisonment based upon the presence of aggravating circumstances. Defendant appealed to the Court of Appeals contending that Bradley's testimony concerning the HGN test was inadmissible. Defendant contended that the HGN test is a scientific test and thus testimony as to HGN test results are admissible only following a proper foundation pursuant to N.C.G.S. § 8C-1, Rule 702. Because the State failed to lay such a foundation, defendant asserts, the HGN test results were improperly admitted into evidence.
The Court of Appeals held that Bradley's testimony regarding the HGN test results was inadmissible and declined to take judicial notice of the validity of the test. Though it found the admission of the HGN test results into evidence improper, the court found that the remaining testimony at trial overwhelmingly established defendant's guilt of driving while impaired. Thus, it concluded, the error was harmless.
This Court has not previously addressed the admissibility of HGN evidence. In now resolving this matter we look first to other jurisdictions which have considered the issue. Some courts have held that the results of HGN tests are admissible without evidentiary foundation. They reason that the HGN test is simply another field sobriety test, such as the finger-to-nose, sway, and walk-and-turn test, admitted as evidence of intoxication. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994); State v. Nagel, 30 Ohio App.3d 80, 506 N.E.2d 285 (1986) and State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993). The Ohio Court of Appeals, for example, noted that
the gaze nystagmus test, as do the other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation.
It should be remembered that the [HGN] test was one of a number of field sobriety tests administered by the officer to assist him in assessing [defendant's] physical condition. Taken together, they were strongly suggestive of intoxication. It does not require an expert to make such objective determinations.
Nagel, 30 Ohio App.3d 80, 80-81, 506 N.E.2d 285, 286.
A majority of those jurisdictions addressing the admissibility of HGN evidence have concluded the HGN test is a scientific test requiring a proper foundation to be admissible. Ballard v. State, 1998 WL 150774 (Ala. App.); State v. Superior Court In and For Cochise County, 149 Ariz. 269, 718 P.2d 171 (1986); State v. Meador, 674 So.2d 826 (Fla. Dist. Ct. App.), review denied, 686 So.2d 580 (Fla. 1996); Commonwealth v. Sands, 424 Mass. 184, 675 N.E.2d 370 (1997); Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App.), cert. denied, 513 U.S. 931, 130 L. Ed. 2d 284 (1994). Nystagmus has been defined as a physiological condition that involves an involuntary rapid movement of the eyeball which may be horizontal, vertical or ...