When May Evidence of HGN Come on Down . . . or In?

The question I am most frequently asked these days is some version of the following: May a law enforcement officer trained in administering the HGN test testify at trial about a defendant’s performance on the test if no other expert testifies about the relationship between nystagmus and impairment by alcohol? While the answer obviously is either yes or no, there is more than one way to analyze the issue. Since today is Thursday, I’m going to throw it back to Bob Barker and the Price is Right and give you two showcases to consider. Showcase No. 1. This one is for our first contestant, the assistant district attorney. The answer. The legislature has already answered this question, and the answer is yes. The analysis.  After the North Carolina Supreme Court held in State v. Helms, 348 N.C. 578 (1998), that the HGN test was a scientific test that required a proper foundation to be admissible, the General Assembly enacted Rule 702(a1) of the North Carolina Rules of Evidence to permit a witness “qualified under subsection (a) of this section and with proper foundation” to “give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to . . . the results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.” See S.L. 2006-253, § 6; S.L. 2007-493, § 33. The court of appeals in State v. Smart, 195 N.C. App. [...]