Jurisprudence over whether officers may testify about defendants’ horizontal gaze nystagmus (HGN) in impaired driving trials has failed to follow a smooth path. In fact, one could fairly note that more than the defendants’ eyes have jumped all over the place. First, our state supreme court said that testimony from a police officer regarding the results of an HGN test performed by the defendant was inadmissible without the evidence establishing that the HGN test was scientifically reliable. State v. Helms, 348 N.C. 578 (1998). The legislature responded by amending Rule 702 in a manner that, according to the court of appeals, “obviat[ed] the need for the state to prove that the HGN testing method is sufficiently reliable” and permitted law enforcement officers trained in administering the HGN test to testify about the defendant’s performance. State v. Smart, 195 N.C. App. 752 (2009). But forget admissibility for a moment. Does HGN evidence prove anything much anyway? A recent unpublished case from the court of appeals indicates that it does not. State v. Sewell, No. COA14-269, ___ N.C. App. ___ , 768 S.E.2d 650 (2015) (unpublished). The facts. Margaret Sewell and a passenger in her car were stopped at a North Carolina State Highway Patrol checkpoint in Durham on November 16, 2012. The trooper who asked for Sewell’s license and registration smelled a strong odor of alcohol coming from the vehicle and saw that Sewell’s eyes were red and glassy. Sewell’s speech, however, was not slurred and she easily retrieved her license and registration. [...]
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