A Coweta County jury found William James Bravo guilty of driving under the influence of alcohol to the extent that it was less safe to drive “DUI less safe”1 and failure to maintain lane.2 He appeals, arguing that 1 the trial court erred by denying his motion in limine to exclude the arresting officer’s testimony regarding his estimate of Bravo’s blood alcohol concentration “BAC” based on a Horizontal Gaze Nystagmus “HGN” evaluation, and 2 trial counsel was ineffective by failing to advise him of his right to testify at trial or to remain silent. We reverse, for reasons that follow. Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.3 The evidence shows that on January 19, 2008, Coweta County Sheriff’s Deputy James Nash observed the vehicle Bravo was driving weave across the roadway, crossing the center line and the right fog line multiple times. Nash initiated a traffic stop. Bravo exited his vehicle, and the deputy advised him three times to get back in the car before Bravo complied. As he stood beside Bravo’s car, Nash noted a strong odor of alcohol coming from inside the vehicle. Nash asked Bravo how much he had to drink, but Bravo did not respond, instead insisting that he was “just going home.” Bravo complied with Nash’s request to exit the vehicle, but he had to use the driver’s door and the car to support himself as he did so. The deputy smelled a “very strong” odor of an alcoholic beverage coming from Bravo’s breath, and he noted that Bravo’s eyes were glassy and bloodshot, his clothing was in disarray, and he was unsteady on his feet. An alco-sensor test detected the presence of alcohol on Bravo’s breath. Nash performed an HGN test, which consisted of passing an object in front of Bravo’s eyes horizontally and determining, based on an observation of the jerking movements, or nystagmus, of each eye, whether there was impairment. Bravo exhibited all six clues for intoxication on the HGN test. Based on the HGN test and a Vertical Nystagmus test, Deputy Nash concluded that Bravo was under the influence of alcohol to an elevated extent. Although Bravo initially agreed to perform the straight line walk test, he then indicated that he could not do so nor could he perform the one-leg stand test because he had undergone knee surgery in the past. Deputy Nash then placed Bravo under arrest and read to him the implied consent warning for individuals over 21. Bravo refused to take a state-administered test of his BAC.
Bravo was charged with DUI less safe and failure to maintain lane. Before trial, he filed a motion in limine seeking to exclude any testimony from Deputy Nash regarding his opinion of Bravo’s numeric BAC derived from the HGN test on the grounds that it was not based upon scientific evidence and was contrary to Nash’s training. The trial court heard argument of counsel immediately before trial, but deferred ruling on the motion. During direct examination of Deputy Nash, the State tendered him as an expert in “DUI and alcohol detection,” without objection from Bravo. Following a portion of Nash’s testimony, the trial court denied Bravo’s motion in limine. The trial court then gave the jury the pattern charge on expert testimony, at which time defense counsel objected to qualifying Deputy Nash as an expert in determining a precise numeric BAC based on HGN testing. Nash then testified that while performing the sixth clue of the HGN field test on Bravo, he estimated that Bravo’s BAC was 0.25 grams based on a mathematical calculation that included Bravo’s angle of onset of nystagmus. Nash further testified that based on his training, experience, and observations, he believed that Bravo was under the influence of alcohol to the extent he was a less safe driver.
