People v. Guerra

Defendant was convicted, after bench trial, of aggravated DUI. Defendant cannot establish deficient performance of trial counsel or prejudice for not asking court to take judicial notice of a NHTSA manual providing that an officer performing the HGN field sobriety test should hold the pen 12-15" from the subject's face. There is not a reasonable probability that Defendant's guilty finding would have been altered by such request. Case turned on credibility, and court largely based its credibility determination on matters unrelated to the HGN test. Court was permitted by law to treat Defendant's refusal to take breath test as competent evidence of consciousness of guilt. (CUNNINGHAM and CONNORS, concurring.)