Cantwell v. State , 230 Ga. App. 892 ( 1998 )

Blackburn, Judge,

dissenting.

I must respectfully dissent from Division 1 and the judgment of the majority. The majority concludes that the trial court correctly restricted the defendant’s right to present evidence which related directly to the weight and credibility of the State’s evidence regarding the field sobriety tests administered by the arresting officer. I must dissent, because beyond the officer’s testimony regarding the defendant’s performance on the field sobriety tests, sufficient evidence of guilt was not presented.

In State v. Pastorini, 222 Ga. App. 316, 318 (2) (474 SE2d 122) (1996) and Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996), we held that the results of field sobriety tests were admissible despite evidence that the tests were not administered in compliance with the National Highway Traffic Safety Administration guidelines for such tests. In so holding, we stated that the defendant’s “expert testimony indicating that the officer had failed to administer the tests in accordance with his training,. . . affects only the weight to be given to the tests. . . . The weight and credibility of evidence such as this should be left for jury determination.” Pastorini, supra at 319.

In the present case, the defendant’s evidence went to the heart of his attack on the State’s case, i.e., the weight and credibility of the field sobriety tests. Under such circumstances, the trial court should have allowed the defendant the opportunity to present his case. We have previously held in many contexts that “[i]f there was doubt as to admissibility of the evidence, it was better admitted and its weight and credibility left to the jury.” Ochle v. State, 218 Ga. App. 69, 73 (459 SE2d 560) (1995). Such rule should have been followed in this case.

Torrance v. State, 217 Ga. App. 562 (1) (458 SE2d 495) (1995) is distinguishable from the present case in that there is evidence in the present case, unlike Torrance, that the officer had received training from the Georgia Peace Officer Standards and Training Council and the National Highway Traffic Safety Administration (NHTSA) which certified him to administer field sobriety evaluations. Therefore, the officer is subject to cross-examination on this training and the tests he administered, as it is within his knowledge. Defendant is also authorized to present the testimony of his own expert who was available for testimony, unlike Torrance. Torrance held that “The question whether to allow a NHTSA-trained expert witness to testify for appellant is also moot, as no such witness was available at the time of motion or trial.”

Decided March 5, 1998 William C. Head, for appellant. Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solictor, for appellee.

I am authorized to state that Judge Smith joins in this dissent.