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State v. Barker

Court of Appeals of North Carolina

December 19, 2017


          Heard in the Court of Appeals 21 August 2017.

         Appeal by Defendant from judgment entered 24 August 2016 by Judge Ola M. Lewis in Superior Court, Brunswick County No. 15 CRS 50635.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J. Uicker, for the State.

          Richard J. Costanza for Defendant. Mc

          GEE, Chief Judge.

         Christopher David Barker ("Defendant") appeals from judgments entered after a jury found him guilty of driving while impaired ("DWI"). Defendant argues that the trial court erred by admitting testimony about the results of a horizontal gaze nystagmus test ("HGN") because the testifying officer did not establish the evidentiary foundation required for expert testimony. We disagree and find no error.

         I. Background

         Defendant was convicted of driving while impaired in Brunswick County District Court ("the district court") on 10 December 2015. Upon appeal, Defendant's case was then tried before a jury in Brunswick County Superior Court ("the superior court") on 22 August 2016. The State's sole witness at trial was Trooper David Inman of the North Carolina Highway Patrol ("Trooper Inman"). Trooper Inman testified he responded to a call on 7 February 2015 regarding a vehicle accident near Leland, North Carolina. When Trooper Inman arrived at the scene of the accident, approximately thirty to forty-five minutes after receiving the call, he saw that a single vehicle had become stuck in a small wooded area after having driven through a T-shaped intersection. Defendant was at the scene and admitted that he had been driving the vehicle, but claimed he did not see the stop sign at the intersection because he was distracted by his cell phone.

         Trooper Inman noted that Defendant seemed unsteady, sleepy, and "thick-tongued." He also testified there was a moderate odor of alcohol coming from Defendant's breath. Trooper Inman asked Defendant if he had been drinking. Defendant admitted that he had consumed a twenty-two ounce beer and a few sips of another. Trooper Inman asked Defendant to blow into an Alco-Sensor, which Defendant did, and the Alco-Sensor indicated Defendant had, in fact, consumed alcohol. As a result, Trooper Inman asked Defendant to perform a variety of standardized field sobriety tests ("SFSTs"). The SFSTs included the walk-and-turn test ("WAT"), the one-leg-stand test ("OLS"), and the HGN test. After Defendant completed all the tests, Trooper Inman testified he was of the opinion that

         Defendant's mental and physical capacities were impaired by alcohol. He then arrested Defendant for DWI.

         Trooper Inman described the HGN testing procedures he had used and the State tendered him as an expert in HGN testing. Trooper Inman testified the HGN test involves "ask[ing] someone to follow a stimulus with just their eyes, " while the administering officer looks for nystagmus, which is "a twitching of the eye." These eye twitches occur when a person has consumed alcohol, and at different angles depending on the level of intoxication. Trooper Inman testified that the administering officer is looking for whether the nystagmus had "onset prior to 45 degrees." Before beginning the test, the officer must observe the eye while the subject is looking forward in order to determine whether the subject has a natural, resting nystagmus. Trooper Inman explained that:

[I]f whenever you're watching the tip of my finger, if I see your eyes shaking, then it's occurring naturally. So there's no sense in me taking -- doing the test at all, because if it's occurring naturally, I can't tell if there is anything in your system that's causing that to happen.

         Trooper Inman testified that a resting nystagmus occurs in "less than 1 percent of the population" and "can occur when someone has some type of head injury." He then testified that Defendant did not have a resting nystagmus, that Defendant's eyes were unable to smoothly follow the object, and that his nystagmus had onset prior to forty-five degrees in both eyes.

         Defendant objected to Trooper Inman being qualified as an expert and moved for a voir dire of the witness. Trooper Inman then testified that, as part of his basic law enforcement training, he received twenty-four hours of training on standard field sobriety testing; that he later participated in a sixteen-hour training course called Advanced Roadside Impaired Driving Enforcement ("ARIDE"); and that he received two-hour refresher courses on a yearly basis as part of his in-service training. The ARIDE training course included reading medical studies regarding the SFSTs, including HGN testing. The trial court overruled Defendant's objection and Trooper Inman was permitted to ...

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