I have got trial comming up, no breath test, and the defense attorney has filed a business records affidavit and letter from a doctor after the fact that defendant has a lazy eye and appears to be drunk all the time. Any ideas on how to keep this out?

if the officer did what they were supposed to they first tracked each eye to make sure it was doing what the other one did. Equal tracking. If that is what the officer saw it was not a lazy eye issue. And suprise, suprise the defense is lying. Go figure. Get a DRE or a good SFST instructor as your counter expert. Again assuming proper administration this is not a legitimate defense even with a note from the defendant's doctor, mommy, kindergarten teacher, pastor and attorney.

A letter written in anticipation of or for use in litigation is not a business record. Object to it being admitted under that exception.

Ask for the officer to administer the HGN in court - if there is a problem with equal tracking, then admit it - it shouldn't be considered. If there is not, you know the rest.

But I take issue with one thing that Clay said - a letter from kindergarten teachers should always be respected.

A lazy eye is not an automatic dis-qualifier for the HGN test. Your officer may not know that unless he's attended a SFST Update class.

As Clay and Gretchen have suggested, bring in a SFST Instructor or a DRE and have them test the defendant.

Subpoena the doctor and make him tell the jury that the defendant just looks drunk all the time (especially after he drinks beer).

JM