Background
Eduardo R. Herrera and David Nigel Armstrong were separately charged with driving under the influence of alcohol and related offenses. The trial court granted in part their motion to exclude testimony from a professor of optometry concerning Horizontal Gaze Nystagmus (HGN) testing.
The court found the professor qualified as an expert but excluded several opinions under Daubert. It permitted the HGN test results as circumstantial evidence of alcohol consumption, while barring their use to establish a specific blood-alcohol level. The State filed its notice of appeal 27 days after the suppression order.
The Court’s Holding
The Court of Appeals dismissed the State’s appeal for lack of jurisdiction. Although OCGA § 5-7-1(a)(4) permits certain State appeals involving the results of alcohol or drug tests, the order did not suppress the HGN test results themselves; it suppressed only particular expert opinions drawn from them.
The appeal therefore fell under OCGA § 5-7-1(a)(5), which required the State to file its notice of appeal within two days of the order. Because the State filed 27 days later, it failed to satisfy the statutory deadline, depriving the appellate court of jurisdiction.
Key Takeaways
- An order limiting expert opinions about HGN testing is not necessarily an order excluding the test results.
- The State had to pursue this evidentiary-suppression appeal under OCGA § 5-7-1(a)(5).
- Failure to meet the two-day filing deadline required dismissal for lack of jurisdiction.
Why It Matters
The decision underscores the strict statutory limits on State criminal appeals in Georgia. Prosecutors must identify the correct appellate authorization and comply with its specific filing deadline, or the appellate court cannot reach the merits.