Again, we disagree. The decision to give a jury charge on expert opinion is a matter for the sole discretion of the trial judge, whether the witness is tendered as an expert or not. Werner v. State, 246 Ga. App. 677, 680 (3) ( 538 SE2d 168) (2000); Lindley v. State, 225 Ga. App. 338, 340-341 (1) ( 484 SE2d 33) (1997). Here, although none of the State's witnesses was tendered as an expert, the officer administering the Intoxilyzer 5000 test was certified with the Georgia Bureau of Investigation's Division of Forensic Sciences, as was shown at trial.
In light of the officers' testimony, there was no error in the charge. Dorminey v. State, 258 Ga. App. 307, 310 (2) ( 574 SE2d 380) (2002), citing Werner v. State, 246 Ga. App. 677, 680 (3) ( 538 SE2d 168) (2000). Nonetheless, even if the officers' testimony did not authorize the charge on expert witnesses, we hold that it is highly probable that the charge did not contribute to the verdict and thus was harmless.
Kirkland v. State, 253 Ga. App. 414, 416 ( 559 SE2d 161) (2002) (concluding that trial court did not err in admitting officer's opinion testimony that six of six clues on defendant's HGN test indicated blood alcohol content of 0.10 grams or greater). See also Werner v. State, 246 Ga. App. 677, 678-679 (1) ( 538 SE2d 168) (2000) (testimony regarding the HGN sobriety test, which included a numerical estimate of defendant's blood alcohol level, would have been admissible if defendant had preserved his objection); Sieveking v. State, 220 Ga. App. 218-219 (1) ( 469 SE2d 235) (1996) (admissible evidence involving the HGN test is not limited to test results showing the presence of alcohol). Although the evidence of Webb's blood alcohol level was probative of the "less safe" DUI charge, "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."
State v. Larocque, 268 Ga. 352, 353 ( 489 SE2d 806) (1997). Accord Werner v. State, 246 Ga. App. 677, 679 (1) ( 538 SE2d 168) (2000). In the case at bar, plaintiffs' counsel made neither a motion in limine nor a continuing objection.
(Citations omitted.) Crenshaw v. State, 248 Ga. App. 505, 508 (3), n. 11 ( 546 SE2d 890) (2001); compare Werner v. State, 246 Ga. App. 677, 678 (1) ( 538 SE2d 168) (2000) (trial court reserved ruling on motion in limine). As the trial court acknowledged, at least some of the child hearsay evidence was improperly admitted, and a new trial therefore is required.
Compare Livingston v. State, 221 Ga. App. 630, 631(1) ( 472 S.E.2d 163) (1996). See Werner v. State, 246 Ga. App. 677, 679(2) ( 538 S.E.2d 168) (2000). Moreover, even if the issue had been properly raised, the trial court did not err in overruling Lanwehr's objection.
Here, there was no error in the charge because this court has determined that a trial court may charge a jury that certain testimony should be considered expert testimony, even when the witness was not offered as an expert. See Werner v. State, 246 Ga.App. 677, 680(3), 538 S.E.2d 168 (2000). Moreover, even if the testimony did not authorize the charge on expert testimony, we hold that it is highly probable that the charge did not contribute to the verdict and was harmless.
Id. See also Werner v. State, 246 Ga. App. 677, 679(1) ( 538 S.E.2d 168) (2000). Furthermore, we have held that police officers may give opinion testimony regarding the state of sobriety of a DUI suspect.
Sieveking v. State, 220 Ga. App. 218, 219 (1) ( 469 S.E.2d 235) (1996).Werner v. State, 246 Ga. App. 677 (1) ( 538 S.E.2d 168) (2000). Officer Roe explained how he conducted the HGN evaluation, what he saw, and his final conclusion that Duren exhibited four of six "clues" of nystagmus impairment.
See Kilgore v. State, 247 Ga. 70 ( 274 S.E.2d 332) (1981). 246 Ga. App. 677 ( 538 S.E.2d 168) (2000). Nevertheless, we hold that this claim is without merit.