06-5840 ROBERT ROBINSON v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 06-5840

Case Date: 06/02/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA ROBERT ROBINSON, Appellant, v. STATE OF FLORIDA, Appellee. ___________________________/ Opinion filed June 2, 2008. An appeal from the Circuit Court for Hamilton County. John W. Peach, Judge. David W. Collins of the Law Office of David W. Collins, Monticello, for Appellant. Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D06-5840

BENTON, J. Robert Robinson appeals his conviction for causing serious bodily injury while driving under the influence of alcohol, in violation of section 316.193(3), Florida Statutes (2003). He contends the trial court erred by allowing lay opinion testimony

about the significance of horizontal gaze nystagmus (HGN) test results. The State concedes error but argues that the error was harmless. We reverse and remand for a new trial. There is no real dispute about Mr. Robinson's driving having caused an accident in which a motorcyclist suffered serious bodily injuries, including a hip fracture. At issue in the trial was whether Mr. Robinson was under the influence of alcohol at the time of the accident to the extent that his normal faculties were impaired. The State did not prove his blood alcohol level1 but did adduce, inter alia, testimony from the arresting officer about HGN test results. In keeping with the general rules governing medical and scientific opinion testimony, the Fourth District held in State v. Meador that opinion testimony relating to HGN test results requires a qualified expert witness: The HGN test results should not be admitted as lay observations of intoxication because HGN testing constitutes scientific evidence. Thus, although the evidence may be relevant, the danger of unfair prejudice, confusion of issues, or misleading the jury requires the exclusion of the HGN test evidence unless the traditional predicates of scientific evidence are satisfied.
1

Mr. Robinson did not provide a breath sample and the law enforcement officers who arrested him failed to obtain blood test results, notwithstanding the duty imposed by section 316.1933(1)(a), Florida Statutes (2003), when there is probable cause to believe someone driving under the influence of alcohol has caused serious bodily injury or death to a human being. 2

674 So. 2d 826, 836 (Fla. 4th DCA 1996), rev. denied, 686 So. 2d 580 (Fla. 1996). We have adopted this view as our own.2 See Castillo v. State, 955 So. 2d 1252, 1253-54 (Fla. 1st DCA 2007) ("The appellant is correct that such opinion testimony requires an expert witness."). In the present case, lay opinion testimony pertaining to HGN test results was admitted only over objection, and after defense counsel's request to voir dire the witness had been denied.3 As the State concedes, this violated the rule laid down in

We have not, however, adopted the rule that obtains in the Third District, which requires "a confirmatory blood, breath, or urine test before HGN evidence is admissible." Bowen v. State, 745 So. 2d 1108, 1109 (Fla. 3d DCA 1999) (citing Faires v. State, 711 So. 2d 597, 598 (Fla. 3d DCA 1998)).
3

2

A law enforcement officer testified at trial as follows: Q: And the Horizontal Gaze Nystagmus

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