                               FOURTH DIVISION
                                 DOYLE, P. J.,
                            MILLER and DILLARD, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                  November 14, 2014




In the Court of Appeals of Georgia
 A14A1127. THE STATE v. SMITH.                                                DO-041

      DOYLE, Presiding Judge.

      James Smith was charged with driving under the influence of alcohol to the

extent that it was less safe for him to drive (“DUI less safe”)1 and failure to maintain

his lane.2 Following a hearing,3 the trial court suppressed the results of two field




      1
          OCGA § 40-6-391 (a) (1).
      2
          OCGA § 40-6-48 (1).
      3
        The suppression hearing was held on December 13, 2013, and the trial court
entered its written order on January 13, 2014. Therefore, Georgia’s new Evidence
Code applies to this case. See Ga. L. 2011, p. 99, § 101 (providing that Georgia’s new
Evidence Code applies “to any motion made or hearing or trial commenced on or
after” January 1, 2013).
sobriety tests because they were not properly administered.4 The State appeals,5 and

we reverse for the reasons that follow.

      We apply the following principles when reviewing a trial court’s ruling on a

motion to suppress:

      First, when a motion to suppress is heard by the trial judge, that judge
      sits as the trier of facts. The trial judge hears the evidence, and his
      findings based upon conflicting evidence are analogous to the verdict of
      a jury and should not be disturbed by a reviewing court if there is any
      evidence to support them. Second, the trial court’s decision with regard
      to questions of fact and credibility must be accepted unless clearly
      erroneous. Third, the reviewing court must construe the evidence most
      favorably to the upholding of the trial court’s findings and judgment.6




      4
         The trial court denied Smith’s motion to suppress regarding the officer’s
reasonable suspicion to stop Smith’s vehicle, probable cause, and implied consent.
The trial court suppressed the results of horizontal gaze nystagmus (“HGN”) and
vertical gaze nystagmus (“VGN”) field sobriety tests, but the State does not appeal
that ruling.
      5
         See OCGA § 5-7-1 (a) (4) (providing in relevant part that the State may
appeal “[f]rom an order . . . or judgment suppressing or . . . excluding the results of
any test for alcohol or drugs in the case of motions made and ruled upon prior to the
impaneling of a jury or the defendant being put in jeopardy, whichever occurs first”).
      6
       (Punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d
148) (2013).

                                          2
“When the controlling facts are not in dispute, such as facts discernible from a

videotape, we conduct a de novo review of both the facts and the law in determining

the admissibility of the statement.”7

      So viewed, the record shows that on January 31, 2013, Kennesaw Police

Department Detective Michael Maynard initiated a traffic stop after he observed

Smith’s vehicle weave, cross the center line multiple times, strike the right curb, and

travel partly off of the roadway. Detective Maynard called for backup and then

approached the vehicle and spoke to Smith, at which point he detected the odor of

alcohol emanating from Smith’s breath. Detective Maynard then returned to his

vehicle to await Officer J. C. Ferguson, who arrived on the scene shortly thereafter,

at approximately 12:45 a.m.

      While speaking with Smith, Officer Ferguson detected the odor of alcohol

coming from Smith and noticed that his eyes were bloodshot and watery, he

mumbled, and his speech was slurred. When asked whether he had been drinking,

Smith replied that he was coming from a business meeting and had consumed two

glasses of wine and two beers, the last one at 11:00 p.m. Smith then complied with



      7
          Dennis v. State, 293 Ga. 688, 691 (2) (748 SE2d 390) (2013).

                                          3
the officer’s request to exit his vehicle and approach the police car, walking

unsteadily as he did so.

      Smith refused Officer Ferguson’s request to submit to an alcosensor evaluation,

but agreed to submit to field sobriety tests; the tests were videotaped and the tape was

played at the suppression hearing. Officer Ferguson testified at the hearing that Smith

exhibited six out of six indicators of impairment and the existence of VGN during his

HGN and VGN testing. Believing that Smith may have been impaired, Officer

Ferguson also administered the “walk and turn” and “one leg stand” field sobriety

tests.8 Officer Ferguson testified that he observed five out of eight indicators of

impairment during the walk and turn test and four out of four indicators during the

one leg stand test.9 According to Officer Ferguson, although it was drizzling and very

      8
         Officer Ferguson testified that Smith was unable to properly recite a portion
of the alphabet. The results of the alphabet test, however, were not addressed by the
trial court in its order on Smith’s motion to suppress and are not at issue on appeal.
      9
         Officer Ferguson conceded at the hearing that although he indicated in his
police report that Smith exhibited five out of six clues of impairment during the walk
and turn test, he noted on the driver impairment form that Smith exhibited six out of
six clues. Officer Ferguson further conceded that although his police report indicates
that Smith exhibited three out of four clues of impairment during the one leg stand
test, the driver impairment form reflects that he exhibited four out of four. Officer
Ferguson testified that the discrepancies in the forms were “human error.” We note
that neither the police report nor the driver impairment form were included in the
appellate record.

                                           4
windy that night, which conditions he conceded could affect the dexterity and balance

tests, he did not believe the conditions were dangerous, and he considered the

“totality of the circumstances” when evaluating Smith’s performance.

       At the conclusion of the hearing, the trial court suppressed the results of the

HGN, VGN, walk and turn, and one leg stand tests. In a written order, the court stated

that it suppressed the test results because Officer Ferguson failed to comply with

National Highway Transportation Security Administration (“NHTSA”) standards

while administering the tests. The court further concluded that because of the

attendant weather conditions, specifically including the wet road surface, the walk

and turn and one leg stand tests were “conducted in an unsafe manner,” and “the

discrepancies between Officer Ferguson’s police report and the driver impairment

form g[a]ve th[e trial] court doubt as to the propriety of [the] administration of [those

tests].”

       In a single enumeration, the State argues that the trial court erred by

suppressing the results of Smith’s walk and turn and one leg stand tests. We agree.

       It is well-settled that although HGN and VGN tests constitute scientific

procedures,



                                           5
      [field] sobriety tests such as the walk and turn and the one leg stand,
      both of which demonstrate a suspect’s dexterity and ability to follow
      directions, do not constitute scientific procedures. And, testimony from
      an officer about a suspect’s inability to complete such dexterity tests
      does not amount to testimony regarding scientific procedures, but
      instead amounts to testimony as to behavioral observations on the
      officer’s part. Therefore, these two tests and any testimony concerning
      their administration are not subject to the standard . . . for determining
      whether a scientific procedure is admissible.10


Thus, a defendant’s arguments regarding proper administration of walk and turn and

one leg dexterity tests, including compliance with NHTSA standards, go to the weight

of the evidence, not to admissibility.11 Therefore, the trial court erred by suppressing




      10
         (Citations and punctuation omitted; emphasis supplied.) State v. Pastorini,
222 Ga. App. 316, 318-319 (2) (474 SE2d 122) (1996). See also Stewart v. State, 280
Ga. App. 366, 368 (2) (634 SE2d 141) (2006); Heller v. State, 234 Ga. App. 630,
631-632 (2) (b) (507 SE2d 518) (1998); Cann-Hanson v. State, 223 Ga. App. 690,
691 (1) (478 SE2d 460) (1996); U. S. v. Renfroe, Case No. 4:13–mj–148–MSH (M.
D. Ga. 2014) (order) (“The walk and turn test and the one[] leg stand test, however,
are not scientific tests so they are not subject to [Federal Rule of Evidence] 702.
Instead, these tests are lay observations[,] which are admissible under [Federal Rule
of Evidence] 701.”).
      11
        See Rowell v. State, 312 Ga. App. 559, 562 (2) (a) (718 SE2d 890) (2011);
Stewart, 280 Ga. App. at 368-369 (2); Pastorini, 222 Ga. App. at 319 (2). See
generally OCGA § 24-7-701 (a) (setting forth rules for lay testimony regarding the
witness’s opinions and inferences).

                                           6
the results of Smith’s walk and turn and one leg stand tests based solely on its

conclusion that they were not properly administered.12

      Judgment reversed. Dillard, J., concurs. Miller, J., concurs in judgment only.




      12
          Pastorini, 222 Ga. App. at 319 (2). See OCGA § 24-4-402 (“All relevant
evidence shall be admissible, except as limited by constitutional requirements or as
otherwise provided by law or by other rules, as prescribed pursuant to constitutional
or statutory authority, applicable in the court in which the matter is pending. Evidence
which is not relevant shall not be admissible.”).

                                           7
