Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 1770(9), 1770(56), and former Code 1933, § 68-307 are included in the annotations for this Code section.

Cases cited below referring to .12 percent blood alcohol level construe paragraph (a)(4) (now (a)(5)) as it existed prior to the 1988 amendment.

Section constitutional.

- It is not an unreasonable restriction upon the right and use of private property, in violation of the due process clauses of the state and federal Constitutions, to make it unlawful for a person under the influence of intoxicating liquor to operate or drive a vehicle anywhere in the state. Cook v. State, 220 Ga. 463, 139 S.E.2d 383 (1964).

Constitutionality.

- Former Code 1933, § 68A-902 (see now O.C.G.A. § 40-6-391) was constitutional. Cargile v. State, 244 Ga. 871, 262 S.E.2d 87 (1979).

Paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 is not void for vagueness. Lester v. State, 253 Ga. 235, 320 S.E.2d 142 (1984); Scott v. Walker, 253 Ga. 695, 324 S.E.2d 187 (1985) (decided prior to 1988 amendment).

Inasmuch as it is clear what O.C.G.A. § 40-6-391 as a whole prohibits, the statute is not unconstitutionally vague. Steele v. State, 260 Ga. 835, 400 S.E.2d 1 (1991); Harris v. State, 199 Ga. App. 457, 405 S.E.2d 501 (1991).

O.C.G.A. § 40-6-391 is not unconstitutionally vague. King v. State, 200 Ga. App. 511, 408 S.E.2d 509 (1991).

Paragraph (a)(5) of O.C.G.A. § 40-6-391 does not constitute an improper exercise of the police power, is not void for vagueness, is not overbroad, and does not create a mandatory irrebuttable presumption that is unconstitutionally burden-shifting. Bohannon v. State, 269 Ga. 130, 497 S.E.2d 552 (1998).

Subsection (k) of O.C.G.A. § 40-6-391 does not violate the right to equal protection under the federal or state constitutions. Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999).

Provision of paragraph (a)(6) of O.C.G.A. § 40-6-391 allowing a person with pharmaceutical marijuana in that person's body fluids to be convicted of driving with marijuana in that person's system only if it is established that the person was "rendered incapable of driving safely," while a person with metabolites of unprescribed marijuana can be found guilty of driving with marijuana in the person's system without evidence of impairment is an unconstitutional denial of equal protection. Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999).

Provision of paragraph (a)(6) of O.C.G.A. § 40-6-391 making it unlawful to drive while marijuana residue is circulating in the driver's body fluids bears a rational relationship to a legitimate state purpose, protection of the public, and does not violate equal protection. Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999).

"Less safe to drive" under paragraph (a)(2) of O.C.G.A. § 40-6-391 and "rendered incapable of driving safely" under paragraph (a)(6) of O.C.G.A. § 40-6-391 set the same standard of impairment necessary to establish that a driver was driving under the influence of alcohol or other intoxicating substance; thus, the statute did not violate the equal protection clauses of the United States and Georgia Constitutions. State v. Kachwalla, 274 Ga. 886, 561 S.E.2d 403 (2002).

As O.C.G.A. § 40-6-391(a)(5) provided more than adequate notice to a person of ordinary intelligence that driving with a alcohol concentration in excess of 0.08 grams was criminal conduct, O.C.G.A. § 40-6-391(a)(5) was not unconstitutionally vague, and defendant's driving under the influence conviction was affirmed. Noble v. State, 275 Ga. 635, 570 S.E.2d 296 (2002).

Trial court erred when the court concluded that O.C.G.A. § 40-6-391(a)(2) violated the equal protection clauses of the United States and Georgia constitutions because "less safe to drive," under O.C.G.A. § 40-6-391(a)(2), and "rendered incapable of driving safely," under O.C.G.A. § 40-6-391(b), set the same standard of impairment necessary to establish that a driver was driving under the influence of alcohol or other intoxicating substance; thus, there was no disparity in the treatment of those charged under O.C.G.A. § 40-6-391(a)(2) and those charged under O.C.G.A. § 40-6-391(b). State v. Beck, 275 Ga. 688, 572 S.E.2d 626 (2002).

Trial court erred in denying defendant's motion to suppress the results of a blood test as defendant was erroneously advised by a police officer that the implied consent statute was applicable due to the seriousness of the injuries sustained in the accident; although the officer's statement was correct at the time of the accident, the Georgia Supreme Court has since then ruled that O.C.G.A. § 40-5-55(a) was unconstitutional if defendant has not been arrested for a violation of O.C.G.A. § 40-6-391 at the time the consent to the blood test was given. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).

No self-incrimination violation.

- Trial court did not err by denying the defendant's motion to suppress and affirming the defendant's convictions because the trial court's ultimate conclusion that the defendant was not compelled into submitting to the breath test was proper and a reading of the implied consent notice was not, by itself, coercive. Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017).

"Less safe" language surplusage.

- Language referring to driving under the influence "under age 21" in a count charging the defendant with violating O.C.G.A. § 40-6-391(a)(1) by driving under the influence of alcohol to the extent that it was less safe to drive was surplusage; the language did not render the accusation void because the remaining language accurately described a violation of § 40-6-391(a)(1). Striplin v. State, 284 Ga. App. 92, 643 S.E.2d 361 (2007).

Reckless driving charges not affected by unconstitutionality of paragraph (a)(6).

- Fact that O.C.G.A. § 40-6-391(a)(6) was held unconstitutional as a denial of equal protection did not apply to require dismissal of charges against the defendant that the defendant committed reckless driving in violation of O.C.G.A. § 40-6-390(a) and first degree vehicular homicide in violation of O.C.G.A. § 40-6-393(a) by reckless driving; the charges merely included the fact that marijuana was found in the defendant's blood because it was relevant to a determination that the defendant drove "in reckless disregard for the safety of persons or property." Ayers v. State, 272 Ga. 733, 534 S.E.2d 76 (2000).

Constitutionality of implied consent notice.

- Submitting to a breath test was held to implicate a person's right against compelled self-incrimination and prior decisions that held otherwise were overruled. Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017).

Crimes that are malum prohibitum.

- Defendant's claim that the defendant could not form the criminal intent to commit the crimes of driving while under the influence per se and reckless driving because the defendant was involuntarily intoxicated at the time of the offenses had to be rejected as those types of crimes were included under a section of the law that described crimes that were "malum prohibitum," the criminal element of which was simply the intention to do the act which resulted in a violation of the law, and not the intent to commit the crime itself. Since the evidence showed that the defendant intended to commit the acts which resulted in the offenses, the fact that the defendant could not form the requisite intent to commit the specific crimes was immaterial. Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003).

Due process was not violated by the failure to return the defendant's plastic license following a license suspension hearing which was resolved in the defendant's favor since the rationale for confiscation of the license in the first place was a pending charge under this O.C.G.A. § 40-6-391. Wright v. State, 228 Ga. App. 717, 492 S.E.2d 581 (1997).

Trial court properly denied the defendant's amended motion for a new trial, holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I, given that: (1) the claim was raised for the first time in the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when the department promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006).

Evidence of ALS agreement relevant.

- In a DUI case under O.C.G.A. § 40-6-391(a)(1), evidence of an agreement the defendant entered in an administrative license suspension (ALS) proceeding, in which the defendant agreed to plead guilty to DUI in exchange for the return of the defendant's license, was relevant and admissible in the defendant's DUI case although the defendant later decided not to plead guilty and go to trial, and although the agreement did not recite that it could be used against the defendant at trial. Smith v. State, 345 Ga. App. 43, 812 S.E.2d 117 (2018).

Standard is "any drug."

- Accusation brought pursuant to O.C.G.A. § 40-6-391(a)(2) is not insufficient if it fails to name a particular drug; in fact, that provision makes it unlawful to drive while under the influence of any drug. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).

Definition of marijuana under statute.

- Definition of "marijuana" under the Motor Vehicles Act, O.C.G.A. § 40-6-391 et seq., not only includes THC for purposes of determining whether one is driving under the influence, but requires that THC be considered "marijuana" in order for paragraph (a)(6) of O.C.G.A. § 40-6-391 to be actionable since THC in the blood or urine is the method by which the presence of marijuana is detected for purposes of determining whether one is driving under the influence thereof. Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999).

Suspension of license not prosecution for double jeopardy purposes.

- Suspension of a driver's license at an administrative hearing was not punishment, nor was the hearing a prosecution for the purposes of double jeopardy; thus, a subsequent criminal prosecution for driving under the influence was not barred. Nolen v. State, 218 Ga. App. 819, 463 S.E.2d 504 (1995), cert. denied, 518 U.S. 1018, 116 S. Ct. 2550, 135 L. Ed. 2d 1070 (1996); McDaniel v. State, 224 Ga. App. 5, 479 S.E.2d 779 (1996).

Payment of the fee required for reinstatement of a driver's license after the license was suspended following an arrest for driving under the influence was not punishment and did not bar a subsequent prosecution for driving under the influence. Thompson v. State, 229 Ga. App. 526, 494 S.E.2d 306 (1997); Morgan v. State, 229 Ga. App. 861, 495 S.E.2d 138 (1998).

O.C.G.A. § 40-6-391(a)(2) provides adequate notice that a person who ingests marijuana or any other drug specified in that section and then drives a motor vehicle does so at his or her own peril of violating these provisions. Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).

Operator under influence to extent vehicle's operation less safe.

- "Under the influence" means more than having consumed the smallest amount of alcohol possible to imagine. The operator of a motor vehicle must be under the influence of an intoxicant to the extent that it is less safe for the operator to operate a motor vehicle than if the operator were not so affected. Anderson v. State, 226 Ga. 35, 172 S.E.2d 424 (1970) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Trial court did not err in denying the defendant's motion to quash the uniform traffic citation filed against the defendant even though the citation did not specify whether the defendant was being charged with DUI under O.C.G.A. § 40-6-391(a)(1), known as "less safe DUI" or under O.C.G.A. § 40-6-391(a)(5), known as "per se DUI" since those provisions were not separate offenses but were merely alternative ways to prove the offense of DUI; however, the trial court did violate the defendant's procedural due process rights to present evidence when the trial court told the state to stick to proving "per se DUI" because the trial court indicated to the defendant that it was not going to require the defendant to defend against a "less safe DUI" charge even though the trial court later clarified that the resulting conviction was for "less safe DUI." Rigdon v. State, 270 Ga. App. 217, 605 S.E.2d 903 (2004).

Testimony of deputies who observed a defendant driving erratically and a paramedic who examined the defendant at the stop scene to the effect that the defendant was under the influence of alcohol to the extent that the defendant was a less safe driver, along with blood alcohol evidence, was sufficient for the jury to find beyond a reasonable doubt that the defendant was guilty of driving under the influence of alcohol to the extent that the defendant was a less safe driver, and of failing to safely maintain the vehicle within a marked traffic lane in violation of O.C.G.A. §§ 40-6-48(1) and40-6-391(a)(1). Stubblefield v. State, 302 Ga. App. 499, 690 S.E.2d 892 (2010).

No intent to repeal criminal sanctions.

- Legislature, in amending O.C.G.A. § 40-6-391 in 1988, did not intend to repeal the criminal sanctions for driving under the influence of alcohol. Proo v. State, 192 Ga. App. 169, 384 S.E.2d 197 (1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1115, 107 L. Ed. 2d 1022 (1990); Proveaux v. State, 198 Ga. App. 119, 401 S.E.2d 12 (1990).

Legislative intent.

- O.C.G.A. § 40-6-391(b) is clear enough to discern the legislature's intention, which was not, as appellant argues, to allow anyone who has ever legally used a drug to be exempt from the prohibitions of § 40-6-391(a). Burks v. State, 195 Ga. App. 516, 394 S.E.2d 136 (1990).

City ordinance attempting to make penal state offense of DWI.

- To apply a city ordinance attempting to make penal the state offense of driving while intoxicated, would, equally, result in an illegal conviction, as infringing upon the state law governing that subject. In either event, a conviction under the ordinance upon such a state of facts would be void and could not be pleaded in abatement against an accusation in the state court for violating the state law. Smith v. State, 88 Ga. App. 749, 77 S.E.2d 764 (1953) (decided under prior Code 1933, § 68-307).

Offense separate and distinct from public drunkenness.

- Offense of operating vehicle while under the influence is separate and distinct from public drunkenness in that each requires for conviction ingredients not essential to the other, and is separate and distinct from the offense of public drunkenness contained in a city ordinance. Accordingly, a conviction of violation of an ordinance relating to being drunk on the street is no bar to a prosecution in the criminal court of a county for the offense of operating a motor vehicle while under the influence of intoxicants. Smith v. State, 88 Ga. App. 749, 77 S.E.2d 764 (1953) (decided under prior Code 1933, § 68-307).

Vehicle registration numbers are not element of offense.

- Fact that defendant's DUI citation did not state the tag or registration numbers of the vehicle defendant was driving when arrested was irrelevant to the issue of whether defendant was driving under the influence since that information forms no part of the elements of the offense. Uren v. State, 174 Ga. App. 804, 331 S.E.2d 642 (1985).

Indictment may stand upon former Code 1910, § 1770, making it a misdemeanor for one to operate an automobile over the public streets or roads while intoxicated, which was not repealed by the similar unconstitutional 1915 provision. Jones v. State, 151 Ga. 502, 107 S.E. 765 (1921); McDonald v. State, 152 Ga. 223, 109 S.E. 656 (1921) (decided under former Code 1910, § 1770(9)).

Indictment charging defendant in language of section.

- When the indictment charged the defendant with the offense of operating a motor vehicle under the influence of intoxicating liquor substantially in the language of Ga. L. 1953, p. 556, it was not subject to the ground of demurrer (now motion to dismiss) attacking it because it failed to allege that the defendant's driving was affected in any manner by the use of the intoxicating liquors and drugs, and because it failed to allege that the defendant's intoxication made it less safe for the defendant to operate the motor vehicle at the time and place. Hooks v. State, 97 Ga. App. 897, 104 S.E.2d 623 (1958) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 566).

Variation in accusation and citation irrelevant.

- Fact that an accusation issued for violation of O.C.G.A. § 40-6-391 is in fact couched in broader language than the uniform traffic citations originally issued establishes no ground for the dismissal of the accusation. Manning v. State, 175 Ga. App. 738, 334 S.E.2d 338 (1985).

Issuance of a formal accusation after the defendant's arrest, specifying alternative methods by which the defendant violated O.C.G.A. § 40-6-391, did not amend the uniform traffic citation, but superseded the citation as the charging instrument. Ellerbee v. State, 215 Ga. App. 102, 449 S.E.2d 874 (1994).

Inconsistent verdict could not form basis for attacking DUI conviction.

- Fact that the jury found the defendant not guilty of a charge of failing to maintain a lane could not be a basis for attacking the guilty verdict for driving under the influence of alcohol under O.C.G.A. § 40-6-391(a)(1). Renkiewicz v. State, 283 Ga. App. 692, 642 S.E.2d 384 (2007).

Conviction not affected by use of old citation form.

- Validity of defendant's conviction for driving under the influence was not affected by the fact that the uniform traffic citation issued to the defendant was not the form then in use, since the citation showed on the citation's face that the citation had been approved by the Commissioner of Public Safety as required by O.C.G.A. § 40-13-1. Hudson v. State, 261 Ga. 414, 405 S.E.2d 495 (1991).

Variation in accusation and statutory language.

- Accusation charging driving under the influence and reciting the proper statute, but omitting "less safe driver" language in O.C.G.A. § 40-6-391, was sufficient. Broski v. State, 196 Ga. App. 116, 395 S.E.2d 317 (1990).

Accusation that omitted certain statutory language but that apprised the defendant that the defendant was being charged with driving with an unlawful alcohol concentration of 0.10 grams or more within three hours of operating a vehicle was sufficient. Lewis v. State, 215 Ga. App. 486, 451 S.E.2d 116 (1994).

O.C.G.A. § 40-6-391 establishes only one crime, driving under the influence; subsections (a)(1) and (a)(4) of O.C.G.A. § 40-6-391 merely set out two different methods of proving that crime. Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986); Scott v. State, 207 Ga. App. 533, 428 S.E.2d 359 (1993).

While it is impermissible to join distinct offenses in a single count of an indictment or accusation, it is also well settled that subsection (a) of O.C.G.A. § 40-6-391 establishes a single crime of driving while in a prohibited condition and that paragraphs (a)(1) and (a)(4) (now (a)(5)) merely define different modes of committing that one crime; a charging instrument is not subject to the objection of duplicity or multifariousness where, as here, alternative methods of violating the one criminal statute at subsection (a) are alleged in a single count. Morgan v. State, 212 Ga. App. 394, 442 S.E.2d 257 (1994); Hankins v. City of Alpharetta, 217 Ga. App. 635, 458 S.E.2d 858 (1995).

Defect in one count when the defendant was charged with two alternative counts of driving under the influence arising from the same conduct did not affect the other charge. Smith v. State, 239 Ga. App. 515, 521 S.E.2d 450 (1999).

Reference to multiple subsections acceptable.

- Trial court did not err in denying the defendant's motion to quash the uniform traffic citation filed against the defendant and alleging the defendant violated a DUI statute as the uniform traffic citation did not allege more than one offense against the defendant; the citation's reference to multiple subsections involved the different ways that the state could prove the offense and were not allegations that multiple offenses were committed. Slinkard v. State, 259 Ga. App. 755, 577 S.E.2d 825 (2003).

Violation of O.C.G.A. § 40-6-391 was a crime for purposes of the application of a life insurance policy exclusion from the payment of benefits "for any loss caused directly or indirectly, wholly or partly, by: ... committing, or attempting to commit a crime." Barnes v. Greater Ga. Life Ins. Co., 243 Ga. App. 149, 530 S.E.2d 748 (2000).

Violation serves as statutory predicate.

- Trial court did not err in denying the defendant's motion in arrest of judgment that attacked the validity of the defendant's indictment for first-degree homicide by vehicle as the allegation in the indictment that the defendant violated O.C.G.A. § 40-6-391(k)(1) could serve as the statutory predicate for the charged offense of first-degree vehicular homicide since the evidence showed that the defendant was under 21-years-old and was driving the defendant's vehicle with a blood alcohol level measured at .08 grams after the accident, and, thus, the state showed that the statutory predicate offense applied. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003).

Defendant's contention that violation of O.C.G.A. § 40-6-391 was not intended by the legislature to serve as a statutory predicate for vehicular homicide because enactment of the vehicular homicide statute predated enactment of § 40-6-391 had to be rejected; when the legislature enacted § 40-6-391, it was presumed to do so with knowledge of the existing provisions of the vehicular homicide statute and with reference to it. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003).

Paragraph (a)(1) does not require commission of unsafe act.

- Paragraph (a)(1) of O.C.G.A. § 40-6-391 makes it unlawful for a person to drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is "less safe for the person to drive . . .." There is no requirement that the person actually commit an unsafe act. Moss v. State, 194 Ga. App. 181, 390 S.E.2d 268 (1990); State v. Smith, 196 Ga. App. 876, 397 S.E.2d 304 (1990); Shannon v. State, 205 Ga. App. 831, 424 S.E.2d 51, cert. denied, 205 Ga. App. 901, 424 S.E.2d 51 (1992); Shelton v. State, 214 Ga. App. 166, 447 S.E.2d 115 (1994); Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993), overruled on other grounds, State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

Citation adequate under paragraph (a)(1) not paragraph (a)(4).

- Traffic citation which charged the defendant with "D.U.I in violation of Code Section40-6-391" was adequate for prosecution under the less safe standard of paragraph (a)(1) of O.C.G.A. § 40-6-391 but was inadequate to prosecute under paragraph (a)(4) of O.C.G.A. § 40-6-391. Power v. State, 231 Ga. App. 335, 499 S.E.2d 357 (1998).

Paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 creates no presumption of intoxication, but merely proscribes certain conduct. Cunningham v. State, 255 Ga. 35, 334 S.E.2d 656 (1985); Mosley v. State, 185 Ga. App. 610, 365 S.E.2d 451 (1988); Koulianos v. State, 192 Ga. App. 90, 383 S.E.2d 642 (1989).

Paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 defines a specific act as criminal rather than raising a presumption of intoxication. Hudgins v. State, 176 Ga. App. 719, 337 S.E.2d 378 (1985).

In an accusation charging a violation of paragraph (a)(5) of O.C.G.A. § 40-6-391, use of the words "alcohol concentration" did not import into the accusation an unnecessarily minute description of a necessary fact. Mitchell v. State, 269 Ga. 378, 497 S.E.2d 566 (1998).

Use of presumptions established by § 40-6-392. - Presumption of sobriety contained in O.C.G.A. § 40-6-392(b)(1) is irrelevant when the ultimate issue before the jury is the defendant's impaired ability to drive as the result of being under the influence of a drug. Perano v. State, 167 Ga. App. 560, 307 S.E.2d 64 (1983).

Commission of the crime of driving under the influence (DUI) by violating paragraph (a)(1), (a)(2), or (a)(3) of O.C.G.A. § 40-6-391 may include as an element of proof thereof, those presumptions or inferences which are established by paragraph (b)(1), (b)(2), or (b)(3) (now paragraph (b)(1) or (b)(2)) of O.C.G.A. § 40-6-392. The crime of DUI by violating paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 differs only in that proof merely of the commission of a proscribed specific act is sufficient without resort to any inference or presumption. Hogan v. State, 178 Ga. App. 534, 343 S.E.2d 770 (1986).

Criminal defendant was not entitled to jury instructions based on the presumptions in O.C.G.A. § 40-6-392 when the where defendant was on trial for vehicular homicide, and evidence of the defendant's blood-alcohol level was not admitted to show that the defendant was driving under the influence but was admitted as a circumstance of the defendant's arrest for vehicular homicide through reckless driving. Collum v. State, 195 Ga. App. 42, 392 S.E.2d 301 (1990).

Trial court did not err by failing to give the jury the defendant's requested instruction on the statutory presumption of sobriety as set forth in O.C.G.A. § 40-6-392(b)(1) because the defendant's request was predicated upon the driving under the influence (DUI) less safe count of the indictment, of which the jury found the defendant not guilty; O.C.G.A. § 40-6-392(b)(1) applied only to DUI less safe violations and did not entitle the defendant to a presumption of sobriety with respect to the defendant's reckless driving violation. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012).

Impaired driving ability is element.

- Under paragraph (a)(2) of O.C.G.A. § 40-6-391, impaired driving ability is an element of the crime that the state must prove to obtain a conviction. Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).

Impaired driving ability not element under paragraph (a)(4) (now (a)(5)).

- Impaired driving ability is not a fact necessary to constitute the crime established in paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391. Lester v. State, 253 Ga. 235, 320 S.E.2d 142 (1984).

Impaired driving ability is not an element of the offense of driving under the influence of marijuana or a controlled substance under paragraph (a)(5) (now (a)(6)) of O.C.G.A. § 40-6-391. Ryals v. State, 215 Ga. App. 51, 449 S.E.2d 865 (1994).

Same physical condition.

- Phrase "driving under the influence," with respect to both alcohol and drugs, and the phrase "to the extent it is less safe for the person to drive" are not two separate elements; but are equivalent concepts describing the same physical condition. Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).

Double jeopardy.

- Because the trial court's grant of a new trial stemmed from trial error, the defendant could not be retried on an offense of per se DUI, given that the defendant was adjudged not guilty of that charge based upon the insufficiency of the evidence; thus, the trial court erred in denying the plea in bar. Shah v. State, 288 Ga. App. 788, 655 S.E.2d 347 (2007).

Trial court erred in dismissing the defendant's charge for DUI, O.C.G.A. § 40-6-391(k), on double jeopardy grounds under O.C.G.A. § 16-1-7(b) based on the prior disposal online of a separate seat belt citation because there was no showing that the solicitor had actual knowledge of the DUI charge at the time the seat belt charge was handled. State v. Garlepp, 338 Ga. App. 788, 790 S.E.2d 839 (2016).

Multiple convictions based upon same incident.

- Since a defendant cannot be convicted of more than one offense if the offenses are the same in law and fact, a defendant cannot be convicted of both driving under the influence and driving with a blood alcohol level of at least .12% when both convictions are based on the same incident of driving under the influence. Sanders v. State, 176 Ga. App. 869, 338 S.E.2d 5 (1985).

When a defendant was convicted of driving under the influence (DUI), in violation of paragraph (a)(1) of O.C.G.A. § 40-6-391, and driving with a blood-alcohol concentration in excess of .12 grams, in violation of paragraph (a)(4) (now (a)(5)), the court was not authorized to enter convictions on both DUI charges since the convictions were predicated on the same conduct. Love v. State, 195 Ga. App. 392, 393 S.E.2d 520 (1990).

Defendant's convictions for operating a motor vehicle under the influence of alcohol while having a probationary license and driving under the influence of alcohol could not both stand since, under the facts, the latter was a lesser included offense in the violation of the probationary license offense. Williams v. State, 223 Ga. App. 209, 477 S.E.2d 367 (1996).

Defendant could be convicted on both felony possession of methamphetamine and driving under the influence of methamphetamine, a misdemeanor; there is no basis for dismissing a felony based on a misdemeanor conviction at common law, and such a result would defy common sense. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998).

Under the plain language of O.C.G.A. § 40-5-63(a), because the underlying DUI convictions pursuant to O.C.G.A. § 40-6-391 did not have to result from separate arrests or separate and isolated incidents, the Department of Driver Services could suspend a driver's license based upon two separate DUI convictions resulting from a single incident. Dozier v. Jackson, 282 Ga. App. 264, 638 S.E.2d 337 (2006).

Separate offenses.

- Defendant's prosecution for driving under the influence and driving with .12% alcohol level did not result in the defendant's being placed in jeopardy twice for the same offense; the two offenses are separate crimes and upon conviction for the latter, the defendant could not also be convicted for the former. Hadden v. State, 180 Ga. App. 496, 349 S.E.2d 770 (1986).

Defendant's acquittal on a charge of driving under the influence on August 6, 1987, did not bar a subsequent prosecution for driving under the influence on November 2, 1987, where neither of the accusations stated that the date of the alleged offenses was a material averment and the state could prove their commission at any time within the two-year statute of limitations. Sandner v. State, 193 Ga. App. 62, 387 S.E.2d 27 (1989).

Simple battery charge did not "arise from the same conduct" as a driving under the influence (DUI) charge, so as to come within the prohibition of the multiple prosecution bar, since the battery occurred 40 minutes after the defendant's arrest for DUI and at a different location, the officer who made the DUI arrest was not the same person allegedly struck by the defendant, and the DUI involved the defendant's operation of a motor vehicle, but the battery did not. State v. Littler, 201 Ga. App. 527, 411 S.E.2d 522 (1991).

Lesser included offense.

- DUI accusation must allege harm or danger in order to render reckless conduct a lesser included offense. Barber v. State, 204 Ga. App. 94, 418 S.E.2d 436 (1992).

Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530, 549 S.E.2d 154 (2001).

Public drunkenness is not, as matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. State v. Tweedell, 209 Ga. App. 13, 432 S.E.2d 619 (1993).

When person is under the influence.

- Person is under the influence of intoxicating liquor when it appears that it is less safe for such person to operate a motor vehicle than it would be if the person were not so affected. Cargile v. State, 244 Ga. 871, 262 S.E.2d 87 (1979).

Trial court does not err in charging the jury that the jury is authorized to find a driver guilty if the jury finds the driver operated a motor vehicle while under the influence of alcohol to the extent that the driver was a "less safe driver," instead of charging that the use of alcohol must have rendered the driver "incapable of safely driving." Jones v. State, 168 Ga. App. 106, 308 S.E.2d 209 (1983).

Separate sentences for per se and less safe DUI.

- Imposing separate sentences for both driving under the influence per se, O.C.G.A. § 40-6-391(a)(5), and driving under the influence less safe, O.C.G.A. § 40-6-391(a)(1), was improper, and since the conviction based on O.C.G.A. § 40-6-391(a)(5) posed the more serious risk of injury to property or the public, that conviction was affirmed; a conviction under O.C.G.A. § 40-6-391(a)(5) did not require proof of impaired driving ability, so even if the results of the field sobriety tests should have been excluded, it was highly probable that the error did not contribute to the judgment since the breath test results, which were not challenged on appeal, provided sufficient proof of the per se violation, and, thus, any error in denying the defendant's motion to suppress the results of the field sobriety tests was harmless. Partridge v. State, 266 Ga. App. 305, 596 S.E.2d 778 (2004).

Alcohol concentration 0.10 grams or more within three hours after driving.

- Paragraph (a)(5) of O.C.G.A. § 40-6-391 declaring a person per se DUI if an individual's alcohol concentration is 0.10 grams or more at any time within three hours after driving does not require that the person be tested within three hours; it need be established only that the individual's alcohol concentration was 0.10 grams or greater during the three-hour period after the individual ceased driving. Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000).

When operator under influence.

- An operator of a motor vehicle on the public highway of this state is under the influence of intoxicating liquor when the operator is so affected by intoxicating liquor as to make it less safe for the operator to operate such a vehicle than it would be if the operator was not affected by such intoxicating liquor. Sims v. State, 92 Ga. App. 169, 88 S.E.2d 186 (1955) (decided under former Code 1933, § 68-307).

Degree of driver incapacity required for conviction.

- It is not necessary that the defendant be so under the influence as to be incapable of driving. It is necessary only that the defendant be under the influence to a degree which renders the defendant less safe or incapable of driving safely. Howell v. State, 179 Ga. App. 632, 347 S.E.2d 358 (1986).

Presence of alcohol in defendant's body does not, by itself, support inference that the defendant's driving was impaired.

- To win a conviction for driving under the influence under O.C.G.A. § 40-6-391(a)(1), the "less safe driver" statute, the state must prove that the defendant had impaired driving ability as a result of drinking alcohol; impaired driving ability depends solely upon an individual's response to alcohol and because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver. Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003).

Probable cause needed to conduct an arrest for DUI requires that the officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders the suspect incapable of driving safely; mere presence of alcohol is not the issue because in a less safe case, the state must prove that the defendant had impaired driving ability as a result of drinking alcohol and it is not necessary for an officer to give the officer's opinion or state specifically that a defendant was a less safe driver. State v. Sanders, 274 Ga. App. 393, 617 S.E.2d 633 (2005).

Mere occupation of parked automobile while under the influence of alcohol is not a crime. Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551 (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 861 (1989).

Operating vehicle for only few yards while intoxicated.

- It would make no difference to one charged with operating an automobile over a public highway of this state while under the influence of intoxicating liquor that one had just gotten behind the wheel of the car and had gone only a few yards when one was stopped by the officers and arrested. Such an act would come within the meaning of the word "operation," prohibiting the above offense. Austin v. State, 47 Ga. App. 191, 170 S.E. 86 (1933), overruled on other grounds, Harper v. State, 91 Ga. App. 456, 86 S.E.2d 7 (1955) (decided under former Code 1933, § 68-307).

Person under influence steering pushed or towed vehicle.

- One who, while under the influence of intoxicants, steers a vehicle which is unable to move under the vehicle's own power, while being pushed or towed, violates Ga. L. 1953, p. 556 (see O.C.G.A. § 40-6-391). Harris v. State, 97 Ga. App. 495, 103 S.E.2d 443 (1958), overruled on other grounds, New v. State, 171 Ga. App. 392, 319 S.E.2d 542 (1984) and Luke v. State, 177 Ga. App. 518, 340 S.E.2d 30 (1986) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Steering towed vehicle sufficient for conviction.

- Defendant could be convicted of driving under the influence of alcohol even though the vehicle the defendant was steering was being towed. Bridgers v. State, 213 Ga. App. 157, 444 S.E.2d 330 (1994).

Public versus private road.

- O.C.G.A. § 40-6-391(a)(5) provided that it was unlawful for any person to drive or be in actual physical control of any moving vehicle with a blood alcohol level of 0.08 or more and drew no distinction between driving on public roads versus private thoroughfares; thus the defendant had no immunity from prosecution for driving under the influence because the act was committed on private property. Madden v. State, 252 Ga. App. 164, 555 S.E.2d 832 (2001).

Roadblocks used to identify licenses, insurances, and sobriety.

- When the defendant was convicted of less-safe DUI under O.C.G.A. § 40-6-391, the trial court did not err in denying the defendant's motion to suppress the results of breath and blood tests because the daylight roadblock was well-identified as a police checkpoint for the stated and authorized purpose of checking driver's licenses, insurance, and driver sobriety. Clark v. State, 318 Ga. App. 873, 734 S.E.2d 839 (2012).

Pedestrian under the influence.

- As a matter of fact or of law, the offense of being a pedestrian under the influence is not a lesser included offense of the offense of driving under the influence. Dickson v. State, 167 Ga. App. 685, 307 S.E.2d 267 (1983).

Defendant charged with permitting an intoxicated driver to drive could not be convicted unless it was proved that the driver violated O.C.G.A. § 40-6-391 governing driving under the influence; thus, the prosecution was a "criminal action . . . arising out of acts" in alleged violation of that section and admissibility of the results of an intoximeter test given to the driver would be governed by O.C.G.A. § 40-6-392. Munda v. State, 172 Ga. App. 857, 324 S.E.2d 799 (1984).

When source of alcohol was prescription drug.

- When the defendant contended that the defendant's conviction could not stand, relying upon the state's failure to rebut the defendant's contention that prior to the time of the defendant's arrest, the defendant had been taking a prescription drug, the major component of which was alcohol, it was found that a rational trier of fact could reasonably have found from the evidence adduced at trial enough proof of the defendant's guilt beyond a reasonable doubt. Kimberly v. State, 180 Ga. App. 521, 349 S.E.2d 489 (1986).

Conviction proper though found "not unsafe."

- O.C.G.A. § 40-6-391 simply requires a finding that a person was a less safe driver than the person would have been if the person were not under the influence of alcohol, and a jury could and did properly find that the defendant's driving, although not unsafe, violated O.C.G.A. § 40-6-391. Jones v. State, 207 Ga. App. 469, 428 S.E.2d 402 (1993).

Involuntary manslaughter proven.

- One who, while violating this section, drives so dangerously or recklessly that, as a result of that person's intoxication, the person unintentionally kills another human being is guilty of involuntary manslaughter in the commission of an unlawful act. French v. State, 99 Ga. App. 149, 107 S.E.2d 890 (1959) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Lesser included offense of vehicular homicide.

- Offense of driving under the influence was a lesser included offense of first degree vehicular homicide and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).

Reckless conduct.

- Since reckless conduct requires harm or danger to "another person," an element not required by O.C.G.A. § 40-6-391 to be alleged and proven, it is not a lesser included offense of driving under the influence as a matter of law. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296, cert. denied, 188 Ga. App. 913, 372 S.E.2d 296 (1988); Cooney v. State, 205 Ga. App. 385, 422 S.E.2d 286 (1992).

Reckless conduct was not a lesser included crime of driving under the influence as a matter of fact since the accusation included no allegation of harm or danger to another person and there was no proof of such at trial. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296, cert. denied, 188 Ga. App. 913, 372 S.E.2d 296 (1988); Cooney v. State, 205 Ga. App. 385, 422 S.E.2d 286 (1992).

Arrest as prerequisite.

- O.C.G.A. § 40-5-55(a), as the statute now stands, provides that consent is implied only if a person is arrested for a violation of O.C.G.A. § 40-6-391. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).

Warrantless arrest.

- When obtaining a warrant to arrest the defendant for driving under the influence would have required at least two hours, during which time physical evidence of the defendant's alleged intoxication would dissipate, the warrantless arrest was proper under subsection (a) of O.C.G.A. § 40-6-391. State v. Fleming, 202 Ga. App. 774, 415 S.E.2d 513 (1992).

Obligation not to leave accident scene.

- Defendant's conviction for a per se driving under the influence violation was upheld on appeal and no unlawful seizure of the defendant occurred at the collision scene the defendant caused since the defendant was obligated not to leave the scene of the accident regardless of whether an officer told the defendant not to leave. Stadnisky v. State, 285 Ga. App. 33, 645 S.E.2d 545 (2007).

Probable cause for arrest.

- As to the question of whether the arrest of a defendant for the offense of driving under the influence is made with probable cause, the question is whether the officer at the time of the defendant's arrest has knowledge or reasonably trustworthy information that: (1) the defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders the defendant incapable of driving safely. Griggs v. State, 167 Ga. App. 581, 307 S.E.2d 75 (1983).

There was probable cause to arrest the defendant for a violation of O.C.G.A. § 40-6-391(a) when the officer's initial approach was a first level police-citizen encounter and was solely to determine if the defendant was in need of assistance, when the officer then noted that the defendant was unsteady on the defendant's feet, the defendant's voice was slurred, the defendant's eyes were red and glassy, and the defendant smelled strongly of alcoholic beverage, and when the defendant admitted driving the vehicle the officer had observed abandoned in a ditch, and had consumed several beers and gave an implausible explanation for the accident. Childress v. State, 251 Ga. App. 873, 554 S.E.2d 818 (2001).

Although a police officer who stopped the defendant for speeding did not conduct field sobriety tests after the officer noticed that the defendant had bloodshot, glassy eyes and smelled alcohol on the defendant's breath, the officer had probable cause to arrest the defendant for driving under the influence of alcohol because of the defendant's condition and the fact that an alco-sensor test the defendant agreed to take showed the presence of alcohol, and the appellate court reversed the trial court's judgment finding that the officer did not have probable cause to arrest the defendant and granting the defendant's motion to suppress evidence resulting from the defendant's arrest. State v. Sledge, 264 Ga. App. 612, 591 S.E.2d 479 (2003).

Police officer who saw the defendant standing over a motorcycle that was involved in an accident and detected a strong smell of alcohol coming from the defendant had probable cause to believe the defendant violated O.C.G.A. § 40-6-391(a) by driving a motor vehicle under the influence of alcohol to the extent it was less safe for the defendant to drive, and the trial court properly denied the defendant's motion in limine to exclude testimony regarding the results of a blood test the defendant took after the officer informed the defendant of the defendant's rights under Georgia's implied consent statute. Oliver v. State, 268 Ga. App. 290, 601 S.E.2d 774 (2004).

Undisputed testimony from an officer, who had extensive experience in DUI cases, that the defendant admitted to drinking, had a strong odor of alcohol on the defendant's person, and had glossy eyes, provided sufficient probable cause to warrant an arrest for DUI despite the fact that the officer failed to have an independent recollection of the field sobriety tests the officer administered. Frederick v. State, 270 Ga. App. 397, 606 S.E.2d 615 (2004).

Suppression motion was properly denied as there was probable cause to arrest a defendant for driving under the influence after: (1) the defendant was stopped for speeding; (2) an officer noticed that the defendant's eyes were bloodshot, speech was slow, and that the defendant smelled of alcohol; and (3) field sobriety tests indicated that the defendant was under the influence of alcohol. Moody v. State, 273 Ga. App. 670, 615 S.E.2d 803 (2005).

Despite the defendant's claim that an officer's detention was illegal and thus, any statement uttered while detained should have been suppressed, suppression of that statement was properly denied, given that: (1) the officer encountered the defendant after responding to a9-1-1 call reporting a crime at a specific location; and (2) the officer's personal observations, when coupled with the defendant's admission as to being drunk and driving a car onto the curb, as the9-1-1 dispatcher had stated, supplied the officer with probable cause to arrest the defendant. Moore v. State, 281 Ga. App. 141, 635 S.E.2d 408 (2006).

There was probable cause to arrest a defendant for driving under the influence less safe under O.C.G.A. § 40-6-391 when an officer smelled alcohol on the defendant's breath and when the defendant admitted to having been drinking. Therefore, no basis for excluding the result of a blood-alcohol test to which the defendant subsequently consented arose as the fruit of the poisonous tree. Hazley v. State, 289 Ga. App. 558, 657 S.E.2d 628 (2008).

Although there was evidence supporting the trial court's finding that there was not probable cause to arrest the defendant for driving under the influence (DUI)-less safe, there was ample evidence to support probable cause to arrest the defendant for DUI per se. The results of two breath tests, and the defendant's admission that the defendant had three to four drinks prior to driving and that the defendant had consumed the last of these about 30 minutes before the traffic stop established a reasonable probability that the defendant was in violation of O.C.G.A. § 40-6-391(a)(5). State v. Rish, 295 Ga. App. 815, 673 S.E.2d 259, cert. denied, No. S09C0911, 2009 Ga. LEXIS 362 (Ga. 2009).

Officer's observations that a defendant was unsteady, smelled of alcohol, had glassy and blood-shot eyes, had marijuana in the defendant's possession, and was driving at night while playing music loud enough to be heard almost a mile away, gave the officer probable cause to arrest the defendant for DUI in violation of O.C.G.A. § 40-6-391(a)(5). Brown v. State, 302 Ga. App. 272, 690 S.E.2d 907 (2010).

Based on the evidence presented, the combination of the observed speed, the defendant's admitting that the defendant had been consuming alcohol, the odor of alcohol coming from the defendant, the condition of the defendant's eyes, the results of the AlcoSensor being positive, and the horizontal gaze nystagmus test results all provided probable cause for the arrest. Drawing all permissible inferences from the evidence in favor of the trial court's ruling, the trial court did not err by finding sufficient probable cause to support the defendant's arrest for driving under the influence to the extent that the defendant was less safe to drive. Jaffray v. State, 306 Ga. App. 469, 702 S.E.2d 742 (2010).

Officer was entitled to qualified immunity as to false arrest claim of arrestee arrested for driving under the influence because it was not clearly established that probable cause was lacking since, inter alia, the arrestee told the officer the arrestee had consumed at least two beers earlier in the evening, and admitted that the arrestee began changing lanes and abruptly swerved back into the original lane. Bannister v. Conway, F. Supp. 2d (N.D. Ga. Oct. 23, 2013).

Trial court did not err in denying the defendant's motion to suppress as the officer did not lack probable cause to place the defendant under arrest for driving under the influence (DUI) per se because the officer noted the defendant's red and watery eyes and the smell of alcohol on the defendant's breath; and, although the specific reading on the portable breath test was not admitted into evidence at the suppression hearing, the officer's characterization of the reading on the test, in conjunction with the other evidence in the record, including two field tests showing clues of impairment, established a reasonable probability that, at that time, the defendant was in violation of the DUI per se statute. Oh v. State, 345 Ga. App. 729, 815 S.E.2d 95 (2018).

Trial court did not err in denying the defendant's motion to suppress as the officer did not lack probable cause to place the defendant under arrest for driving under the influence less-safe because the officer noted the defendant's red and watery eyes and the smell of alcohol on the defendant's breath; the defendant admitted to consuming alcohol earlier in the evening, and two field tests showed clues of impairment; and the portable breath test showed the presence of alcohol and was consistent with the result the officer suspected based on the two earlier field sobriety tests that the defendant had failed. Oh v. State, 345 Ga. App. 729, 815 S.E.2d 95 (2018).

Cash bond.

- When a person is arrested by a state patrolman inside a municipality for driving under the influence, a deputy sheriff, even without authorization from the court, may accept a cash bond; the trial court, as a result, has the authority to order the cash bond forfeited. Wilson v. State, 167 Ga. App. 421, 306 S.E.2d 704 (1983).

Venue.

- Exact location of operating a motor vehicle under influence of an intoxicant is not a material element of an offense under O.C.G.A. § 40-6-391 and the accusation is sufficiently certain if it charges that the offense was committed in a particular county. Felchlin v. State, 159 Ga. App. 120, 282 S.E.2d 743 (1981).

While the phrase "as prosecuting attorney for the county and state aforesaid" sufficiently established venue to support a violation of O.C.G.A. § 40-6-391(a)(1), the state's failure to sufficiently allege venue in order to sustain a second count, charging a violation of § 40-6-391(a)(5), supported the defendant's motion to quash the second count and reversal of the defendant's conviction on that count. Werner v. State, 280 Ga. App. 853, 635 S.E.2d 234 (2006).

Appeals court rejected the defendant's claim that the accusation failed to adequately charge venue as a charge of DUI incorporated the words "Henry County" in the heading by using the phrase "as prosecuting attorney for the county and state aforesaid" in the body of the accusation; but the court warned the state against such practice as the solicitor could easily devise forms which stated with clarity the county in which the offense allegedly occurred, and thereby avoid the costs which resulted from having to repeatedly defend the type of challenge the defendant raised. Gordy v. State, 287 Ga. App. 459, 651 S.E.2d 471 (2007), cert. denied, No. S07C1866, 2008 Ga. LEXIS 128 (Ga. 2008).

Evidence of highway number insufficient proof of venue.

- In a DUI case under O.C.G.A. § 40-6-391(a)(1), the state failed to prove that venue was proper in Fayette County: the evidence showed only that the defendant was stopped on Highway 138 by a Fayette County Sheriff's deputy, which was insufficient to prove venue; because DUI elements were established by the evidence, retrial was permitted. Smith v. State, 345 Ga. App. 43, 812 S.E.2d 117 (2018).

Removal to federal court disallowed.

- When a substitute rural mail carrier employed by the United States Postal Service, while delivering mail for the United States Postal Service, was arrested and charged with driving under the influence of alcohol pursuant to O.C.G.A. § 40-6-391, the carrier's petition to remove the pending state criminal prosecution to a federal district court was summarily dismissed as there was no causal connection between the carrier's official acts and the criminal allegations the carrier was charged with under state law. Georgia v. Waller, 660 F. Supp. 952 (M.D. Ga. 1987).

Transfer of case involving juveniles to superior court.

- Evidence that a juvenile had a history of using marijuana and other drugs, had used marijuana before the juvenile lost control of a car the juvenile was driving while racing another car on a public street, causing a multi-car collision in which two people died, had challenged other people to automobile races on several occasions, violated the conditions of the juvenile's driver's license by driving with a non-family member, and used drugs after the accident was sufficient to support the juvenile court's judgment that the juvenile was not amenable to treatment in the juvenile court system and that the interests of the juvenile and the community would be better served if the case was transferred to the superior court. In the Interest of W.N.J., 268 Ga. App. 637, 602 S.E.2d 173 (2004).

Conviction for DUI in one county bars prosecution in other.

- When a motorist is charged with speeding and driving under the influence in two counties, the motorist may be tried and convicted in both counties for speeding, but a conviction for driving under the influence in one county will bar prosecution in the other as this charge arises out of the same conduct in both counties. State v. Willis, 149 Ga. App. 509, 254 S.E.2d 743 (1979).

Prosecution of new offense time-barred.

- Filing of a formal accusation beyond the applicable limitations period barred the prosecution for a violation of paragraph (a)(4) of O.C.G.A. § 40-6-391, brought two months after the original charge of a violation of paragraph (a)(1) of O.C.G.A. § 40-6-391, notwithstanding the fact that the new paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 offense may have stemmed from the same conduct as the original charge. State v. Rustin, 208 Ga. App. 431, 430 S.E.2d 765 (1993).

Defendant's plea of nolo contendere waived any defenses and objections to the defendant's conviction for driving under the influence of drugs when the plea was voluntarily entered as shown by the defendant's ratification thereof by entering the plea on the back of the uniform traffic citation and signing the defendant's name. Moffett v. State, 228 Ga. App. 73, 491 S.E.2d 126 (1997).

Challenge to procedures used in reading the defendant the statutory implied consent warning and the proper working of the Intoxilyzer 5000 machine should have been appropriately raised by a motion in limine, not a motion to suppress. Goddard v. State, 244 Ga. App. 730, 536 S.E.2d 160 (2000).

Tort duty invocable against police officer.

- Law enforcement officer owes a tort duty to a member of the general public injured by a drunk driver when the officer allows the noticeably intoxicated driver to continue operating a motor vehicle. Landis v. Rockdale County, 206 Ga. App. 876, 427 S.E.2d 286 (1993).

Tort duty not invocable against police officer.

- Deputy sheriff was not liable to the widow of a motorist killed in a collision with a drunk driver whom the deputy had failed to arrest or otherwise restrain from driving; although the deputy may have been present at the scene of the crime in that the deputy observed an intoxicated driver, the deputy's duty to enforce drunk driving laws was to the public in general, not specifically to the motorist who was killed hours later in a collision with the intoxicated driver at another location. Landis v. Rockdale County, 212 Ga. App. 700, 445 S.E.2d 264 (1994).

When an officer from one agency released a motorist without conducting a complete investigation, if the officers from another jurisdiction have reasonable suspicion that the defendant was driving under the influence, the fact that the first officer chose not to investigate that issue does not deprive the other officers of the officer's independent authority to investigate. State v. Gehris, 242 Ga. App. 384, 528 S.E.2d 300 (2000), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

Prosecutor's closing argument did not violate prohibition against golden rule arguments.

- Prosecutor's remarks during a DUI offense did not violate the prohibition against golden rule arguments by asking the jurors to put themselves in the position of a victim since it is not improper for the state to appeal to the jury to convict for the safety of the community or to curb an epidemic of violence in the community. Nor is it improper for the prosecutor to emphasize to the jury the jury's responsibility to enforce the law. Coghlan v. State, 319 Ga. App. 551, 737 S.E.2d 332 (2013).

Mistrial properly denied.

- Because the defendant was not prejudiced by a challenged juror's conduct in communicating with a state witness, namely, a police officer as: (1) the alleged improper communication was innocent; (2) the case was never discussed; and (3) once the involvement was discovered, the conversation immediately ended; hence, the trial court did not abuse the court's discretion in denying a mistrial. Duncan v. State, 281 Ga. App. 270, 635 S.E.2d 875 (2006).

New trial unwarranted when counsel's failure to object to evidence of prior DUI conviction did not result in prejudice.

- Defendant's ineffective assistance of counsel claim did not warrant a new trial because sufficient evidence of the defendant's intoxication was presented in the record, and the defendant failed to show prejudice resulting from trial counsel's failure to object to the defendant's admission to having a prior DUI conviction, even though it was error for trial counsel not to object. Thomas v. State, 288 Ga. App. 827, 655 S.E.2d 701 (2007).

Continuance of case properly denied.

- Trial court did not abuse the court's discretion by denying the defendant's request for a continuance because the court had granted a certificate pursuant to O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information and witnesses from the breathalyzer manufacturer, set the case with enough time for the defense to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required the defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526 (2013).

Blood test results suppressed properly.

- Before an unconscious person could have been deemed not to have withdrawn the implied consent to blood alcohol testing, that implied consent must have first existed as provided by O.C.G.A. § 40-5-55(a); consent was implied only if a person was arrested for a violation of O.C.G.A. § 40-6-391, and when the defendant was not arrested for any such violation before the blood test was conducted, a trial court properly suppressed the results of the blood test. State v. Bass, 273 Ga. App. 540, 615 S.E.2d 589 (2005).

Under Ga. Const. 1983, Art. I, Sec. I, Para. XIII, the defendant could not suppress the evidence of the blood test taken while the defendant was under suspicion for driving under the influence under O.C.G.A. § 40-6-391; because the state complied with the statutory implied consent requirements, the defendant was deemed under the implied consent provisions of O.C.G.A. § 40-5-55 to have given the defendant's consent to a test of the defendant's blood. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006).

Blood test properly admitted after defendant requested breath test.

- After a defendant's van hit a utility pole, an officer did not violate O.C.G.A. § 40-6-392(a)(3) by failing to reasonably accommodate the defendant's request for a breath test as the officer believed that the defendant could not complete a breath test due to serious injuries to the defendant's mouth and jaw. Since the defendant was not in police custody, but was a hospital patient, and consented to a blood test after first requesting a breath test, evidence of the blood test was admissible in a prosecution for driving under the influence. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. 2009).

Determination of actual consent required.

- Defendant's driving under the influence case was remanded to the trial court because, in considering the defendant's motion to suppress, the court failed to address whether the defendant gave actual consent to the procuring and testing of blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances. Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015).

In a case charging the defendant with driving under the influence (DUI) to the extent it was less safe for the defendant to drive and DUI per se, the motion to suppress the results of the state-administered test of the defendant's breath was properly granted as the defendant lacked the capacity to consent to the breath test based upon the defendant's confusion and high level of intoxication; the state was only able to show that the defendant acquiesced to the officer's request that the defendant submit to a breath test but was unable to show actual consent; and the trial court was not expressly required to address in the court's order each relevant factor in determining if the defendant's consent was voluntary. State v. Jung, 337 Ga. App. 799, 788 S.E.2d 884 (2016).

Blood draw taken from the defendant, who was charged with DUI (methamphetamine), O.C.G.A. § 40-6-391(a)(6), was suppressed from the evidence because the defendant's consent was not voluntarily given; the defendant had been injured in a car accident, was pinned to the ground, mumbling, screaming, and vomiting, and was incapable of making a rational decision. State v. Osterloh, 342 Ga. App. 668, 804 S.E.2d 696 (2017).

Evidence insufficient to establish coercion as defense.

- Appellate court chose not to disturb the jury's determination that the defendant was not coerced into driving while intoxicated because the defendant admitted that the defendant was not coerced into driving a truck away from a restaurant; the defendant testified that an employee of the restaurant asked the defendant to leave; the defendant drove away to avoid a fight; the defendant had three or four beers before driving the truck; the defendant had a cell phone in the defendant's possession but the defendant did not attempt to call9-1-1, nor did the defendant ask the restaurant's employees to call a cab for the defendant; and the person who was trying to fight the defendant was in the parking lot but was not armed. Hines v. State, 308 Ga. App. 299, 707 S.E.2d 534 (2011).

Statute of limitation.

- Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a), and not as a separate crime for which the defendant risked separate criminal liability, a trial court did not err by denying the defendant's plea in bar because as a felony offense prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c); the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007), cert. denied, No. S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007).

Evidence of subsequent DUI arrests admissible.

- Evidence that in the seven months after a defendant was arrested for DUI in violation of O.C.G.A. § 40-6-391(a)(1), the defendant drove the defendant's vehicle twice while under the influence of alcohol to the extent it was less safe for the defendant to drive, was admissible as relevant to the defendant's bent of mind and course of conduct with respect to DUI. Ayiteyfio v. State, 308 Ga. App. 286, 707 S.E.2d 186 (2011).

No provision for judgment notwithstanding the verdict in DUI case.

- Trial court did not err in denying the defendant's motion for judgment notwithstanding the verdict (JNOV) after the defendant was convicted of driving under the influence to the extent that the defendant was a less-safe driver in violation of O.C.G.A. § 40-6-391(a)(1) because JNOV was not a remedy available in a criminal case. Masood v. State, 313 Ga. App. 549, 722 S.E.2d 149 (2012).

Qualified immunity of officer in civil rights claim based on driving under influence arrest.

- Officer was entitled to summary judgment based on qualified immunity as to an arrestee's Fourth Amendment claim regarding the stop of the arrestee's vehicle because the officer had arguable reasonable suspicion to stop the arrestee since the officer responded to an off-duty officer's report that the arrestee was driving at an unusual speed and weaving across the road, and the off-duty officer identified the vehicle; also, officers had arguable probable cause to arrest the arrestee for driving under the influence. Jenkins v. Gaither, F.3d (11th Cir. Oct. 4, 2013)(Unpublished).

Out of time appeal following guilty plea rejected.

- Following guilty pleas to first degree homicide by vehicle and possession of an open container, the trial court properly denied the defendant's motion for an out-of-time appeal finding that the defendant failed to show that the right to an appeal was frustrated by ineffective assistance of counsel since the record showed that the attacks on the guilty plea in the out-of-time appeal were without merit; thus, trial counsel could not have been ineffective in failing to pursue such an appeal. Martin v. State, 329 Ga. App. 10, 763 S.E.2d 363 (2014).

Cited in Carter v. State, 38 Ga. App. 182, 143 S.E. 441 (1928); Hixson v. Barrow, 135 Ga. App. 519, 218 S.E.2d 253 (1975); Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Elder v. State, 143 Ga. App. 610, 239 S.E.2d 160 (1977); Howe v. Cofer, 144 Ga. App. 589, 241 S.E.2d 472 (1978); Huff v. State, 144 Ga. App. 764, 242 S.E.2d 361 (1978); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); Garrett v. State, 146 Ga. App. 610, 247 S.E.2d 136 (1978); Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978); Keenan v. Buchanan, 148 Ga. App. 279, 251 S.E.2d 120 (1978); Lewis v. State, 149 Ga. App. 181, 254 S.E.2d 142 (1979); State v. Black, 149 Ga. App. 389, 254 S.E.2d 506 (1979); Grizzle v. State, 153 Ga. App. 364, 265 S.E.2d 324 (1980); Vann v. State, 153 Ga. App. 710, 266 S.E.2d 349 (1980); Jackson v. Willis, 2 Bankr. 566 (Bankr. M.D. Ga. 1980); Arnold v. State, 163 Ga. App. 94, 292 S.E.2d 891 (1982); State v. Chumley, 164 Ga. App. 828, 299 S.E.2d 564 (1982); Stewart v. State, 165 Ga. App. 62, 299 S.E.2d 134 (1983); Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 311 S.E.2d 193 (1983); Wessels v. State, 169 Ga. App. 246, 312 S.E.2d 361 (1983); Steed v. City of Atlanta, 172 Ga. App. 839, 325 S.E.2d 165 (1984); Pfeiffer v. State, 173 Ga. App. 374, 326 S.E.2d 562 (1985); McElroy v. State, 173 Ga. App. 685, 327 S.E.2d 805 (1985); Russell v. State, 174 Ga. App. 436, 330 S.E.2d 175 (1985); Peters v. State, 175 Ga. App. 463, 333 S.E.2d 436 (1985); Atkins v. State, 175 Ga. App. 470, 333 S.E.2d 441 (1985); Melton v. State, 175 Ga. App. 472, 333 S.E.2d 682 (1985); Drayton v. State, 175 Ga. App. 780, 334 S.E.2d 720 (1985); McNair v. State, 177 Ga. App. 502, 339 S.E.2d 773 (1986); Billingslea v. State, 177 Ga. App. 775, 341 S.E.2d 305 (1986); Lovell v. State, 178 Ga. App. 366, 343 S.E.2d 414 (1986); Smith v. State, 180 Ga. App. 620, 349 S.E.2d 754 (1986); Branch v. State, 182 Ga. App. 818, 357 S.E.2d 136 (1987); House v. State, 184 Ga. App. 724, 362 S.E.2d 429 (1987); Williams v. Hart, 83 Bankr. 840 (Bankr. M.D. Ga. 1987); Odom v. State, 185 Ga. App. 496, 364 S.E.2d 626 (1988); Smith v. State, 185 Ga. App. 531, 364 S.E.2d 907 (1988); Brooks v. State, 187 Ga. App. 194, 369 S.E.2d 801 (1988); Hale v. State, 188 Ga. App. 524, 373 S.E.2d 250 (1988); Browning v. State, 188 Ga. App. 591, 373 S.E.2d 654 (1988); Sapp v. State, 188 Ga. App. 700, 374 S.E.2d 114 (1988); State v. Speir, 189 Ga. App. 254, 375 S.E.2d 298 (1988); Harrison v. Brunson, 82 Bankr. 634 (Bankr. S.D. Ga. 1988); Parsons v. State, 190 Ga. App. 803, 380 S.E.2d 87 (1989); Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 380 S.E.2d 751 (1989); Helms v. State, 191 Ga. App. 283, 381 S.E.2d 428 (1989); Manley v. State, 191 Ga. App. 376, 381 S.E.2d 592 (1989); Corley v. State, 192 Ga. App. 35, 383 S.E.2d 586 (1989); Sturdy v. State, 192 Ga. App. 71, 383 S.E.2d 632 (1989); Griner v. State, 192 Ga. App. 283, 384 S.E.2d 398 (1989); Moore v. Jarvis, 885 F.2d 1565 (11th Cir. 1989); Harbin v. State, 193 Ga. App. 248, 387 S.E.2d 367 (1989); King v. State, 194 Ga. App. 69, 389 S.E.2d 500 (1989); Kolker v. State, 260 Ga. 240, 391 S.E.2d 391 (1990); Lord v. State, 194 Ga. App. 749, 392 S.E.2d 17 (1990); Studebaker's of Savannah, Inc. v. Tibbs, 195 Ga. App. 142, 392 S.E.2d 908 (1990); Trammell v. State, 196 Ga. App. 540, 396 S.E.2d 286 (1990); Menendez v. Jewett, 196 Ga. App. 565, 396 S.E.2d 294 (1990); Eppinger v. State, 198 Ga. App. 889, 403 S.E.2d 829 (1991); Anderson v. State, 199 Ga. App. 595, 405 S.E.2d 504 (1991); Brantley v. State, 199 Ga. App. 623, 405 S.E.2d 533 (1991); Purser v. State, 201 Ga. App. 839, 412 S.E.2d 869 (1991); Kendrick v. State, 202 Ga. App. 164, 413 S.E.2d 785 (1991); Anderson v. State, 262 Ga. 26, 413 S.E.2d 732 (1992); Bowden v. State, 202 Ga. App. 802, 415 S.E.2d 527 (1992); Gazaway v. State, 207 Ga. App. 641, 428 S.E.2d 659 (1993); Pratt v. State, 208 Ga. App. 617, 431 S.E.2d 397 (1993); Payne v. State, 209 Ga. App. 780, 434 S.E.2d 543 (1993); Cheevers v. Clark, 214 Ga. App. 866, 449 S.E.2d 528 (1994); Martin v. State, 217 Ga. App. 860, 460 S.E.2d 92 (1995); Dooley v. State, 221 Ga. App. 245, 470 S.E.2d 803 (1996); Pitts v. State, 231 Ga. App. 9, 498 S.E.2d 534 (1998); Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 499 S.E.2d 722 (1998); Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998); In re B.C.G., 235 Ga. App. 1, 508 S.E.2d 239 (1998); Lambropoulous v. State, 234 Ga. App. 625, 507 S.E.2d 225 (1998); Griffin v. State, 242 Ga. App. 878, 531 S.E.2d 752 (2000); Berkow v. State, 243 Ga. App. 698, 534 S.E.2d 433 (2000); Thompson v. State, 243 Ga. App. 878, 534 S.E.2d 151 (2000); Perdue v. Caffey (In re Caffey), 248 Bankr. 920 (Bankr. N.D. Ga. 2000); Couch v. State, 246 Ga. App. 106, 539 S.E.2d 609 (2000); Rodriguez v. State, 275 Ga. 283, 565 S.E.2d 458 (2002); Northside Equities, Inc. v. Hulsey, 275 Ga. 364, 567 S.E.2d 4 (2002); State v. Johnson, 257 Ga. App. 162, 570 S.E.2d 627 (2002); Perdue v. State, 256 Ga. App. 765, 578 S.E.2d 456 (2002); Lockett v. State, 257 Ga. App. 412, 571 S.E.2d 192 (2002); Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003); Gantt v. State, 263 Ga. App. 102, 587 S.E.2d 255 (2003); Dozier v. Pierce, 279 Ga. App. 464, 631 S.E.2d 379 (2006); Chancellor v. Dozier, 283 Ga. 259, 658 S.E.2d 592 (2008); Brantley v. State, 290 Ga. App. 764, 660 S.E.2d 846 (2008); Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008); Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009); Eason v. Dozier, 298 Ga. App. 65, 679 S.E.2d 89 (2009); State v. Rowell, 299 Ga. App. 238, 682 S.E.2d 343 (2009); Jacobs v. State, 308 Ga. App. 117, 706 S.E.2d 737 (2011); Smith v. State, 324 Ga. App. 100, 749 S.E.2d 395 (2013); Reed v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 755 S.E.2d 356 (2014); Preston v. State, 327 Ga. App. 556, 760 S.E.2d 176 (2014); State v. Hasson, 334 Ga. App. 1, 778 S.E.2d 15 (2015); State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016); State v. Charles, 344 Ga. App. 456, 810 S.E.2d 627 (2018).

Notice of offense.

- Notice given that driving under the influence of alcohol is a crime is adequate. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).

Citation reciting that the defendant was stopped for driving over the centerline, describing the defendant as a less than safe driver with the smell of alcohol on the defendant's breath and unsteady on the defendant's feet, who failed an alco-sensor test and whose blood alcohol measured .10 percent was sufficient to charge a violation of O.C.G.A. § 40-6-391(a)(1). Shannon v. State, 205 Ga. App. 831, 424 S.E.2d 51, cert. denied, 205 Ga. App. 901, 424 S.E.2d 51 (1992).

Provision authorizing punishment for a "high and aggravated misdemeanor" upon a third or subsequent conviction of DUI does not create a separate and independent offense and did not constitute a material allegation in an accusation. State v. Phillips, 206 Ga. App. 421, 425 S.E.2d 412 (1992).

Indictment only put the defendant on notice that the defendant could be convicted if the marijuana or cocaine had made the defendant a less safe driver. The indictment did not put the defendant on notice that the defendant could be convicted solely on the physical act of driving with any amount of marijuana or cocaine in the defendant's blood or urine under O.C.G.A. § 40-6-391(a)(5). Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).

Citation was not vague when the citation informed the defendant that the defendant was charged with violating O.C.G.A. § 40-6-391 by driving the defendant's vehicle under the influence of alcohol and specifically provided that a DUI breath test was administered showing an alcohol level of .17 grams. Shelton v. State, 216 Ga. App. 634, 455 S.E.2d 304 (1995).

Accusation charging an offense under O.C.G.A. § 40-6-391 was sufficient even though the accusation did not contain the exact wording of the current section. Wade v. State, 223 Ga. App. 222, 477 S.E.2d 328 (1996).

Indictment or accusation charging a defendant with driving under the influence of alcohol or drugs, even if it does not specify to the extent it was less safe for the defendant to drive, is an indictment that charges the defendant with violating paragraph (a)(1), (a)(2), or (a)(3) of O.C.G.A. § 40-6-391; but would not put a defendant on notice that a defendant was convicted under paragraph (a)(4) or (a)(5) of § 40-6-391 which does not contain the phrase "under the influence" and does not require the state to prove impaired driving ability. Power v. State, 231 Ga. App. 335, 499 S.E.2d 357 (1998).

Indictment stating that the defendant "did then and there unlawfully drive a moving vehicle while under the influence of alcohol, so that it was less safe for the defendant to drive, there being not less than .10 percent by weight of alcohol in his blood" was sufficient notice of two ways the defendant could be convicted of driving under the influence. Kennon v. State, 232 Ga. App. 494, 502 S.E.2d 330 (1998).

Trial court did not err when the court denied the defendant's motion to quash the defendant's traffic citation because the citation did not identify the specific subsection of O.C.G.A. § 40-6-391 which the defendant violated. Fluellen v. State, 264 Ga. App. 19, 589 S.E.2d 847 (2003).

Trial court properly denied the defendant's motion to quash count one of the accusation filed against the defendant as: (1) although the accusation did not specify a particular drug that the defendant was alleged to have been driving under, O.C.G.A. § 40-6-391(a)(2) prohibited driving under the influence of any drug; (2) the defendant was informed of the charged offense, and that the defendant would need to meet the charges that the defendant drove while under the influence of amphetamines and cannabinoids; (3) the defendant could not reasonably claim that the defendant was surprised by evidence introduced at trial or was unable to prepare a defense; (4) the defendant did not risk future prosecution for the same offenses; and (5) the defendant was not misled to the defendant's prejudice by any imperfection in the accusation, and any error was harmless. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).

Fair construction of defendant's Uniform Traffic Citation showed that the citation indicated a violation of O.C.G.A. § 40-6-391(a)(5), unlawful alcohol concentration; when the citation showed that the defendant's breath results were ".223," and that the defendant was charged with "DUI," defendant was on adequate notice of a charge of unlawful alcohol concentration. Taylor v. State, 265 Ga. App. 637, 595 S.E.2d 344 (2004).

Accusation that charged the defendant, age 19, with being a minor under 18 while driving with an alcohol concentration of .02 or more was not fatally variant with the proof at tria, because the charge cited O.C.G.A. § 40-6-391, the correct statute under which the defendant was charged, and the defendant could not be surprised with proof of the defendant's own age. Mills v. State, 271 Ga. App. 506, 610 S.E.2d 80 (2004).

Count phrasing sufficiently descriptive.

- Accusation was sufficiently descriptive to defeat a motion in arrest of judgment where reference of "such driving and being in actual physical control" incorporated preceding count's explicit reference to "actual physical control of a moving vehicle." Jones v. State, 206 Ga. App. 604, 426 S.E.2d 179 (1992).

Traffic citation's notice sufficient.

- Defendant's contention that the state's failure to recite the words "to the extent that it was less safe for the person to drive" constituted a fatal defect insufficiently alleging the essential elements of O.C.G.A. § 40-6-391 for purposes of notice did not hold when the defendant could not demonstrate any prejudice to oneself. As such, it was enough that the necessary facts could appear in any form, or by fair construction could be found within the terms of the traffic citation, including the mere recital of the statute. Brooks v. State, 207 Ga. App. 477, 428 S.E.2d 357 (1993).

Notice of implied consent rights.

- Trial court erred in concluding that the state's breath tests related to a charge of DUI against the defendant were not admissible and had to be suppressed on the ground that a police officer did not read the defendant's implied consent rights at the scene of the defendant's arrest in a local park; the defendant was not arrested in the local park for DUI, but, instead, was arrested for criminal trespass and it was not until the defendant was taken to a detention center that the defendant was arrested for DUI, at which time the officer read to the defendant the implied consent rights. State v. Jones, 261 Ga. App. 357, 583 S.E.2d 139 (2003).

Because the defendant, who was charged with driving under the influence in violation of O.C.G.A. § 40-6-391, was confused after a police officer read the defendant the implied consent warning, and the defendant failed to respond to the officer's request to administer the chemical breath test, this response was tantamount to a refusal. State v. Adams, 270 Ga. App. 878, 609 S.E.2d 378 (2004).

Pursuant to O.C.G.A. § 40-5-67.1(d.1), a trial court did not err in denying the defendant's motion to suppress based upon the officer's failure to give an implied consent warning before the test was administered because the defendant voluntarily consented to the breath test. Jones v. State, 319 Ga. App. 520, 737 S.E.2d 318 (2013).

Trial court erred when the court granted the defendant's motion to suppress evidence based on the officer adding words to the implied consent notice because the added words did not alter the substance of the notice nor affect the defendant's consent to testing. State v. Fedrick, 329 Ga. App. 75, 763 S.E.2d 739 (2014).

Trial court did not err by refusing to suppress the defendant's blood-test results based on not being under arrest prior to being read Georgia's implied consent notice because, although the defendant's recollection differed from that of the law-enforcement officer, and although defense counsel cross-examined the officer extensively as to alleged inconsistencies in the chronology of events, the officer testified that the officer issued citations to the defendant before reading Georgia's implied consent notice. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015).

Failure to give notice of implied consent rights.

- Trial court did not have to find as a matter of fact that the officer read the implied consent warning before arresting the defendant in order to grant the motion to suppress as the court's grant of the motion was adequately supported by the state's failure to meet the state's burden of proving that the implied consent warning was read after arrest; hence, the state failed to meet the state's burden because the trial court found the officer's testimony lacked credibility and there was no other evidence showing that the warning was given after the defendant's arrest. State v. Stelzenmuller, 285 Ga. App. 348, 646 S.E.2d 316 (2007).

Trial court properly granted the defendant's motion to suppress the results of a state-administered blood test showing that the defendant had marijuana in defendant's system at the time of a fatal car accident as the testing was obtained by an officer without the officer giving the implied consent notice to defendant. State v. Morgan, 289 Ga. App. 706, 658 S.E.2d 237 (2008), cert. denied, No. S08C1017, 2008 Ga. LEXIS 504 (Ga. 2008).

Constitutionality.

- Because a defendant was arrested for driving under the influence under O.C.G.A. § 40-6-391 based on probable cause and the state complied with the implied consent requirements of O.C.G.A. § 40-5-55, the defendant could not complain that drug and alcohol testing violated the search and seizure provisions of the Fourth Amendment or the Georgia Constitution because the implied consent statute allowed for the warrantless compelled testing of bodily fluids based on the existence of probable cause but without proof of the existence of exigent circumstances. Cornwell v. State, 283 Ga. 247, 657 S.E.2d 195 (2008).

Determination of actual consent required.

- Based on the United States Supreme Court decision in Missouri v. McNeely, in which the court rejected a per se rule that the natural metabolization of alcohol in a person's bloodstream constitutes an exigency justifying an exception to the U.S. Const., amend. 4's search warrant requirement for nonconsensual blood testing in all driving under the influence cases, the Georgia Supreme Court overruled Strong v. State, 231 Ga. 514 (1973), to the extent that decision holds otherwise. Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015).

Field sobriety tests were not "statements" and were not inadmissible under the constitution even if the defendant was in custody and had not been read the defendant's Miranda rights. Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8 (1997).

Miranda warnings are not required to precede field sobriety tests during routine roadside questioning when the detained driver is not under formal arrest but exhibits many physical manifestations of intoxication amounting to probable cause to arrest. Arce v. State, 245 Ga. App. 466, 538 S.E.2d 128 (2000).

Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information on the question whether alcohol is present at an impairing level such that the driver is less safe within the meaning of O.C.G.A. § 40-6-391(a)(1). Werner v. State, 246 Ga. App. 677, 538 S.E.2d 168 (2000).

Because a police officer reasonably suspected that the defendant was intoxicated, the officer had a legal basis for asking the defendant to submit to field sobriety tests without violating the Fourth Amendment; when the defendant refused to take the tests, the evidence was sufficient to find the defendant guilty of driving under the influence to the extent that the defendant was a less safe driver in violation of O.C.G.A. § 40-6-391. Long v. State, 271 Ga. App. 565, 610 S.E.2d 74 (2004).

Possibility that officers might have called a tow truck before giving field sobriety tests did not mean that the defendant was in custody after the truck was called, thereby requiring Miranda warnings before the tests were given; the defendant had not known that the tow truck was called and thus there was no basis to believe the detention was not temporary. Grodhaus v. State, 287 Ga. App. 628, 653 S.E.2d 67 (2007), cert. denied, No. S08C0238 2008 Ga. LEXIS 173 (Ga. 2008).

Trial court did not err in denying the defendant's motion to suppress and motion in limine to exclude the defendant's field sobriety test results because the officers who stopped the defendant's vehicle were not required to advise the defendant of the defendant's Miranda rights prior to the field sobriety testing since although the defendant was not free to leave, the defendant was not handcuffed or placed in the patrol car during the investigation, and in addition to informing the defendant of the reason for the stop, the officers told the defendant that the officers had to wait for a HEAT Unit officer to determine whether the defendant was too impaired to safely operate the defendant's vehicle; based upon the circumstances, the trial court was authorized to find that a reasonable person would believe that the defendant's freedom of action was only temporarily curtailed pending further investigation during the traffic stop, and the delay of approximately twenty-five minutes between the initial stop and the HEAT Unit officer's arrival at the scene did not automatically convert the investigation into a custodial situation. Waters v. State, 306 Ga. App. 114, 701 S.E.2d 550 (2010).

Defendant's motion to suppress evidence obtained on the night of the defendant's arrest for driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391(a)(1) should not have been granted as the defendant was not in custody for purposes of Miranda during the investigation. State v. Mosley, 321 Ga. App. 236, 739 S.E.2d 106 (2013).

Arrest is not prerequisite to chemical test.

- Arrest for driving under the influence (DUI) was not a prerequisite for administration of a chemical test. If an officer had reasonable grounds to believe a traffic offense was committed while the defendant was violating DUI laws, a chemical test was proper and admissible. State v. Goolsby, 262 Ga. App. 867, 586 S.E.2d 754 (2003).

Requests for chemical tests.

- Amendment to O.C.G.A. § 40-5-67.1, effective August 18, 1995, provides that the new implied consent warning requirement applies only as to "an offense committed on or after April 21, 1995." The applicable law in situations where the request for testing is made regarding an offense occurring before April 21, 1995, includes, inter alia, that a suspect is not entitled to a warning which tracks the exact language of O.C.G.A. § 40-5-67.1; the sufficiency of the warning is to be judged by its content and not its form; and the warning must inform the suspect that the suspect could have an additional test by a qualified person of the suspect's own choosing. State v. Golub, 220 Ga. App. 810, 470 S.E.2d 331 (1996).

Trial court did not err in granting the defendant's motion to suppress evidence of a state-administered breath test because the state failed to reasonably accommodate the defendant's request for an independent blood test; when a officer learned that the defendant did not have sufficient cash for a blood test at one of the recommended hospitals the defendant should have been offered the opportunity to use a telephone to make other arrangements, and the officer's unilateral determination that the defendant would be unable to pay for the blood test, without confirming the hospitals' policies regarding payment and without offering to accommodate the defendant in obtaining a method of payment, was insufficient. State v. Davis, 309 Ga. App. 558, 711 S.E.2d 76 (2011).

O.C.G.A. § 40-6-392(a)(4), with regard to an independent chemical test of blood, specifies no deadline for requesting full information, no timetable for supplying the information, and no penalty for the state's failure to produce the information. State v. Thompson, 334 Ga. App. 692, 780 S.E.2d 67 (2015).

Chemical test may be requested despite absence of probable cause.

- Chemical test may be requested under the implied consent statute even though the arresting officer lacks probable cause to arrest for substance-influenced driving if the officer has at least reasonable grounds to believe that a violation of O.C.G.A. § 40-6-391 has occurred. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296, cert. denied, 188 Ga. App. 913, 372 S.E.2d 296 (1988).

"Unable" to provide breath sample equals refusal.

- In a prosecution for driving under the influence, when the arresting officer testified that the defendant pretended to, but did not, blow into a breath-alcohol testing machine (which had been tested and was certified as working properly), and the defendant testified as to why the defendant was unable to provide an adequate breath sample, the trial court properly admitted evidence of the defendant's "refusal" to submit to a breath test. Walker v. State, 262 Ga. App. 872, 586 S.E.2d 757 (2003).

Calibration of breath test instrument.

- There is a presumption in all cases arising under O.C.G.A. § 40-6-391 that the Director of the State Crime Laboratory has caused the instrument used to administer the breath test to be checked periodically for calibration. Sapp v. State, 184 Ga. App. 527, 362 S.E.2d 406 (1987).

Source code for breath test machine not discoverable.

- In a driving-while-intoxicated case, the defendant was not entitled to discovery of the "source code" used to program a breath test machine. The defendant did not show that the code was in the possession, custody, or control of the state as required by O.C.G.A. §§ 17-16-1(1) and17-16-23(b). Hills v. State, 291 Ga. App. 873, 663 S.E.2d 265 (2008).

In a DUI case, the state was not required to disclose the computer source code for the Intoxilyzer 5000 used to measure the defendant's blood alcohol under O.C.G.A. § 40-6-392(a)(4) because the state did not have access to the source code from the Intoxilyzer's Kentucky manufacturer and had not attempted to gain access to the code. Smith v. State, 325 Ga. App. 405, 750 S.E.2d 758 (2013).

Lapse of time between test and violation.

- Intoximeter operator's testimony that the operator conducted an intoximeter test on defendant at 2:49 a.m. and that the results were ".14 grams per 100 cc's of blood" was sufficient to sustain the defendant's conviction under paragraph (a)(4) of O.C.G.A. § 40-6-391 even though the operator admitted that the operator was not able to testify as to the defendant's blood alcohol content level at the time of the violation, 40 minutes earlier. Simon v. State, 182 Ga. App. 210, 355 S.E.2d 120 (1987).

Trial court erred in suppressing the defendant's alcohol test results on the ground that there was no evidence that a blood sample was taken within three hours of the accident allegedly caused by the defendant's drunken driving; O.C.G.A. § 40-6-391(a)(5) does not require such test to be administered within three hours of the accident. State v. Allen, 256 Ga. App. 798, 570 S.E.2d 34 (2002).

Breathalyzer machine test results are based on accepted scientific theory or "rest upon the laws of nature"; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test. Brown v. State, 202 Ga. App. 371, 414 S.E.2d 505 (1991), cert. denied, 202 Ga. App. 371, 414 S.E.2d 505 (1992).

When the jury in a first trial "rejected" breath test results, in the sense that the jury concluded the results were insufficient to prove beyond a reasonable doubt that the defendant had the required alcohol concentration, the jury did not necessarily conclude that the breath test results were wholly lacking in probative value, and when the test results were not the only evidence supporting a less safe driver charge, the state was not precluded by the doctrine of collateral estoppel from introducing evidence of the breath test results in a subsequent trial. Sullivan v. State, 235 Ga. App. 768, 510 S.E.2d 136 (1998).

Denial of the defendant's motion to suppress the results of the breath tests was proper when the evidence showed there was probable cause for the defendant's arrest and subsequent testing. Maurer v. State, 240 Ga. App. 145, 525 S.E.2d 104 (1999).

Defendant's conviction for driving under the influence to the extent that the defendant's blood-alcohol content exceeded the legal limit was reversed as the trial court erroneously admitted a photostatic copy of the Intoxilyzer report over a best evidence objection, the state was unable to explain the absence of the original, the state presented no evidence that the state made any effort to locate the original, and former O.C.G.A. § 24-7-20 (see now O.C.G.A. § 24-9-920) did not apply. Lumley v. State, 280 Ga. App. 82, 633 S.E.2d 413 (2006).

Trial court did not err in denying suppression of the results of the defendant's Intoxilyzer 5000 and other field sobriety tests administered upon a defendant's arrest for driving with an unlawful alcohol concentration and driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391 as: (1) the arguments the defendant raised about the officer's ability to manipulate the Intoxilyzer 5000 test went to the weight, and not admissibility of the evidence; (2) the officer was sufficiently trained to administer the tests; (3) the state showed substantial compliance with the required procedures; and (4) no due process violation resulted from the evidence being admitted. Stewart v. State, 280 Ga. App. 366, 634 S.E.2d 141 (2006).

Evidence was sufficient for the trial court to find beyond a reasonable doubt that the defendant was guilty of driving an automobile with an unlawful alcohol concentration in violation of O.C.G.A. § 40-6-391(a)(5) because to carry the state's burden to show that the Intoxilyzer machine on which the defendant's breath was tested was operated with all the machine's electronic and operating components attached and in good working order, the state produced certificates of inspections conducted on the machine before and after the test, and the testimony of the operator that the machine was operating properly when the test was conducted; the machine produced test results showing that the defendant had an alcohol concentration of 0.179 grams. Yeary v. State, 302 Ga. App. 535, 690 S.E.2d 901 (2010).

Only computer printout of intox- ilyzer test is discoverable.

- Trial court did not err in denying the defendant's motion for disclosure of scientific reports pursuant to O.C.G.A. § 40-6-392(a)(4) because intoxilyzer test results were provided to the defendant, and the defendant's discovery request was overbroad when the defendant sought information far beyond the scope of information to which the defendant was entitled under § 40-6-392(a)(4); the only discoverable information from an intoxilyzer test under § 40-6-392(a)(4) is the computer printout of the test result because unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person's blood alcohol level, which means that the machine computes the test result. Stetz v. State, 301 Ga. App. 458, 687 S.E.2d 839 (2009).

Evidence of field sobriety test harmless.

- Conviction under O.C.G.A. § 40-6-391(a)(5) does not require the state to prove impaired driving ability. Thus, even if the results of the field sobriety tests should have been excluded, the trial court's failure to exclude the results was harmless error when the breath test results, which were not challenged on appeal, provide sufficient proof of the per se violation. Partridge v. State, 266 Ga. App. 305, 596 S.E.2d 778 (2004).

Defendant was not harmed by the trial court's denial of a motion to exclude the results of the defendant's horizontal gaze nystagmus (HGN) test from the trial for a charge of driving under the influence of alcohol to the extent the defendant was a less safe driver, O.C.G.A. § 40-6- 391(a)(1), because the record showed that the HGN test evidence did not contribute to the verdict. The trial court found that the administration of the field sobriety tests by the officer were incorrect, but noted that the court had given the results of those tests little or no weight. Cash v. State, 299 Ga. App. 303, 682 S.E.2d 607 (2009), cert. denied, No. S09C1984, 2010 Ga. LEXIS 50 (Ga. 2010).

Correlation between horizontal gaze nystagmus test and blood alcohol content.

- At a trial for a violation of O.C.G.A. § 40-6-391(a)(1), an officer's testimony as to the likelihood of blood/alcohol concentration based on certain results on the horizontal gaze nystagmus test was relevant since field sobriety test results were relevant and there was nothing inflammatory or misleading about the evidence. Webb v. State, 277 Ga. App. 355, 626 S.E.2d 545 (2006).

Breath test evidence irrelevant.

- In defendant's prosecution for driving while under the influence of alcohol to the extent that the defendant was a less safe driver, the defendant's blood alcohol was irrelevant so admission of the results of a breath test, even if erroneous, was harmless error and the defendant's conviction would not be reversed on the ground of admission of that evidence. Worthman v. State, 266 Ga. App. 208, 596 S.E.2d 643 (2004).

Breath test admissible.

- Trial court properly denied the defendant's motion in limine, admitting an Intoxilyzer 5000's certificate of inspection as nontestimonial, as well as the defendant's breath test results; even if error was presented, it was harmless since the defendant was acquitted of driving under the influence with an unlawful blood alcohol concentration. Moreover, the incident report was properly admitted under the rule of completeness as the trial court was authorized to find that it was necessary for the state to admit all relevant parts of the incident report in evidence to show that the omissions noted by the defendant were not so material as to have effected the accuracy of the report. Phillips v. State, 289 Ga. App. 281, 656 S.E.2d 905 (2008).

Trial court did not abuse the court's discretion by denying the defendant's motion for mistrial after the jury accidentally heard the numerical result of an Alco-Sensor test because the trial court gave the jury a curative instruction, and the totality of the evidence was sufficient by itself to support the jury's finding that the defendant was guilty beyond a reasonable doubt of driving under the influence, O.C.G.A. § 40-6-391(k)(1). Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012).

Court of appeals did not err in reversing an order granting the defendant's motion to suppress evidence of the state's breath test results because the procedures followed by the state comported with the fundamental fairness required by due process; the police officer delivered to the defendant the required implied consent notice in an accurate and timely manner, thereby informing the defendant of the right to an independent test under O.C.G.A. § 40-6-392(a)(3). Thus, the state was under no constitutional duty to immediately inform the defendant of the results of the state administered breath test. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012).

Breath test admissible despite delay.

- Breath test results were admissible at a trial for a violation of O.C.G.A. § 40-6-391(a)(1) and (5) as the police officer's notification to the defendant of the implied consent rights under O.C.G.A. § 40-6-392(a)(4) was timely in the circumstances; although the defendant was placed in the police car and not given the notification for 18 minutes, the notice was timely because the officer was attending to the passenger and ensuring that the passenger was unharmed and had a safe way to get home and the officer was transporting possession of the vehicle for purposes of impounding the vehicle. Naik v. State, 277 Ga. App. 418, 626 S.E.2d 608 (2006).

Breath test admissible despite initial refusal.

- Trial court was not required to suppress evidence of the defendant's breath test results, although it was clear that the defendant refused to take a breath test when asked at the scene, as the defendant rescinded that refusal by agreeing to take the test at the police station. Stapleton v. State, 279 Ga. App. 296, 630 S.E.2d 769 (2006).

At the time of a defendant's arrest for DUI, the defendant refused to submit to a breath test; after the officer gave the defendant the chance to rescind this refusal, the defendant agreed to take the test in the absence of any threats or inducements. As the officer did not act unreasonably in attempting to induce the defendant to rescind the initial refusal, the test results were admissible. State v. Quezada, 295 Ga. App. 522, 672 S.E.2d 497 (2009).

Refusal not evidence of the presence of alcohol.

- Jury charge that a DUI defendant's refusal to submit to a blood alcohol test could create an inference that the test would show the presence of alcohol which impaired the defendant's driving was plain error, requiring a new trial, because the charge shifted the burden of proof to the defendant, requiring the defendant to rebut the inference that the defendant was an impaired driver. Wagner v. State, 311 Ga. App. 589, 716 S.E.2d 633 (2011).

Use of terms "percent" or "grams."

- Although the intoximeter test results in this case were expressed in numbers which represent the percentage of alcohol in the blood by weight, or grams, those results frequently have been referred to without qualifying the results with either the term "percent" or the term "grams," and are commonly understood to mean the amount of alcohol in a certain weight of the subject's blood, expressed as a percentage. Page v. State, 202 Ga. App. 828, 415 S.E.2d 487, cert. denied, 202 Ga. App. 907, 415 S.E.2d 487 (1992).

Denial of pretrial intoximeter inspection motion harmless.

- Acquittal under paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 precluded any harm in denying the defendant's motion for pretrial inspection of an intoximeter device and was no basis for reversal of convictions under paragraph (a)(1) of O.C.G.A. §§ 40-6-391 and3-3-23(a)(2). Gilbert v. State, 262 Ga. 840, 426 S.E.2d 155 (1993).

Uncertified photocopies of a certificate of inspection for an Intoxilyzer 5000 were admissible after a police officer testified at trial that the officer personally made the photocopies of the original certificates. Wright v. State, 238 Ga. App. 442, 519 S.E.2d 461 (1999).

Results of defendant's intoximeter test were admissible because the arresting officer advised the defendant of the defendant's rights under the implied consent law as close in proximity to the instant of arrest as the circumstances warranted, since after the officer stopped the defendant and put the defendant in the patrol car, the officer got a call and went after another vehicle, picked up the driver and then took both of the drivers to the police station and read the defendant the implied consent rights while the drivers were in the patrol car. Fore v. State, 180 Ga. App. 196, 348 S.E.2d 579 (1986).

Blood test results were admissible for driving offenses.

- In a prosecution for driving under the influence of marijuana and driving under the influence of drugs to the extent of being a less safe driver, even though the hospital consent form signed by the defendant was entitled "Request for Alcohol Testing," the test results, which were positive for marijuana, were admissible since the defendant had earlier consented to testing after receiving the required implied consent notice. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998).

Trial court did not err in denying a motion to suppress evidence of the blood-alcohol results obtained after the defendant's vehicle was stopped and it was determined that the defendant was driving under the influence; the defendant consented to such a test as a driver using a vehicle on the Georgia highways and the delay in administering the implied consent warning was due to the defendant's drunken condition and difficult behavior. Cain v. State, 274 Ga. App. 533, 617 S.E.2d 567 (2005).

Although the state was unable to prove that the defendant's blood-alcohol content exceeded the legal limit within three hours of driving, as required by O.C.G.A. § 40-6-391(a)(5), the jury was authorized to consider the blood test results in connection with the charge that the defendant was a less safe driver. Furlow v. State, 276 Ga. App. 332, 623 S.E.2d 186 (2005).

Defendant's argument, that the officer advised the defendant that the defendant was under arrest for driving under the influence and not for a violation of O.C.G.A. § 40-6-391(a)(6) and that the defendant never consented to the testing of the defendant's blood for the presence of drugs, failed; nothing in O.C.G.A. § 40-5-55 or O.C.G.A. § 40-6-392 required the officer to tell the defendant that the defendant was under arrest for a drug offense in order for the implied consent to be valid. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006).

Refusal to submit to breath test as search incident to arrest, after warning, was admissible.

- In the defendant's DUI trial, O.C.G.A. § 40-6-391(a)(1), because a breath test was permitted as a search incident to the defendant's DUI arrest, the defendant's refusal to take the breath test was not the exercise of the constitutional right against unreasonable searches and seizures, and evidence of the defendant's refusal was properly admitted under O.C.G.A. § 40-5-67.1(b). Cherry v. State, 345 Ga. App. 409, 813 S.E.2d 408 (2018).

Results of chemical tests administered to defendant were inadmissible since the crime laboratory report on the tests did not state on the report's face the exact numerical quantity of the drugs found in the defendant's blood and urine. Box v. State, 187 Ga. App. 260, 370 S.E.2d 28 (1988).

Trial court erred in denying the defendant's motion to suppress the results of a blood test the defendant consented to after a state trooper read defendant the implied consent notice under O.C.G.A. § 40-5-67.1(b)(2), which informed the defendant that Georgia law required the defendant to submit to chemical testing, that the refusal to submit to testing would lead to the suspension of the defendant's driving privileges, and that the defendant's refusal might be offered into evidence against the defendant at trial; the defendant was not suspected of violating O.C.G.A. § 40-6-391 when the defendant was advised of the implied consent law, O.C.G.A. § 40-5-55(a) (which was unconstitutional), and the defendant's consent was invalid. Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003).

Suppression of chemical breath test results were required because after the defendant failed to respond to the officer's request to administer the chemical breath test and because such a response was tantamount to a refusal, when the defendant was then taken to a detention center, it was error to administer the test without the defendant being asked to consent again or without reading the defendant's implied consent warnings pursuant to O.C.G.A. § 40-5-67.1. State v. Adams, 270 Ga. App. 878, 609 S.E.2d 378 (2004).

Trial court erred in denying a motion to suppress the defendant's chemical test results that were obtained under the implied consent statute, O.C.G.A. § 40-5-55(a), as the defendant was not arrested after a fatal crash for any offense in violation of O.C.G.A. § 40-6-391 nor was there probable cause to arrest the defendant for any such violation. Costley v. State, 271 Ga. App. 692, 610 S.E.2d 647 (2005).

State-administered test results improperly admitted.

- Defendant's conviction for underage driving under the influence (blood alcohol content) was reversed as the trial court improperly denied the defendant's motion in limine premised on the arresting officer's failure to provide the defendant with an independent chemical test of the defendant's blood after defendant plainly requested one; that the defendant's request for a blood test was made prior to the defendant's arrest and the giving of the implied consent warnings was not determinative under these facts and the officer's failure to inquire into the defendant's request for an independent test required the suppression of the results of the state-administered test. McGinn v. State, 268 Ga. App. 450, 602 S.E.2d 209 (2004).

Trial court did not err in denying defendant's motion to exclude state-administered test results.

- Trial court did not err in denying the defendant's motion to exclude the results of a state-administered breath test because a state trooper's initial overstatement of the legal blood alcohol concentration, which the trooper corrected immediately, was so not misleading that it rendered the defendant incapable of making an informed decision about whether to submit to chemical testing; the videotape recording demonstrated that before the trooper read the implied consent notice, the defendant told the trooper that the defendant knew that 0.08 grams was the legal limit applicable to individuals over the age of 21. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012).

Trial court properly denied the defendant's motion in limine to exclude evidence that the defendant refused chemical testing based on the testimony of a deputy that while in the defendant's hospital room, a ticket was written for drunk driving and the defendant was advised of the custodial arrest; thus, there was no error in the trial court's determination that a reasonable person in the defendant's position would not think that they were free to leave at the time the deputy read the implied consent warnings. Plemmons v. State, 326 Ga. App. 765, 755 S.E.2d 205 (2014).

Failure to allow independent urine test.

- Judgment of conviction entered against the defendant for driving under the influence of alcohol to the extent it was less safe to drive had to be reversed as the trial court erred in admitting the results of a breath test since the defendant also requested that an independent urine test be performed as was the defendant's right under the law, and since that right was not honored, the law dictated that the breath test was not admissible to support the defendant's conviction. Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003).

Trial court erred in not suppressing the results of the state-administered breath test that the defendant gave after the defendant was arrested for driving under the influence of alcohol; the defendant exercised the defendant's right to also request that an additional test be performed by asking that the defendant be given an independent urine test, and since that right was not honored, the state-administered breath test was not admissible to support the defendant's conviction. Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003).

Admissibility of results of test performed pursuant to medical treatment.

- When the blood-alcohol test was performed pursuant to the medical treatment of the plaintiff and recorded in the regular course of hospital business, and the blood-alcohol test was not administered for the purpose of determining whether the plaintiff violated O.C.G.A. § 40-6-391, it was not necessary that the defendant establish compliance with that statute to render the test results admissible; the blood test results thus recorded in the regular course of hospital business were admissible under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803). Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 278 S.E.2d 669 (1981).

Trial court did not err in denying the defendant's motion for an independent expert to examine the intoximeter that was used to test the defendant's breath because any testing by such an expert would not prove that the machine gave an inaccurate reading for the defendant since the original test condition, including the defendant's own physical condition, could not have been duplicated. Blanos v. State, 192 Ga. App. 835, 386 S.E.2d 714 (1989).

Trial court did not err in admitting the results of a blood test administered to the defendant in the course of medical treatment as the right to refuse a state-administered test was entirely independent of the state's prerogative, pursuant to a warrant obtained in accordance with the Fourth Amendment, to obtain test results as other evidence of a crime. Rylee v. State, 288 Ga. App. 784, 655 S.E.2d 239 (2007).

Admissibility of blood test.

- State showed to a reasonable certainty that the blood tested at a lab was the same as that drawn from the defendant, notwithstanding a discrepancy between the testimony of the person who drew the blood and the person who tested the blood as to the color of the stopper on a sealed vial. Brown v. State, 201 Ga. App. 441, 411 S.E.2d 286 (1991).

Because the police had probable cause to believe that the defendant was impaired, in violation of O.C.G.A. § 40-6-391, when the defendant caused a vehicle accident that resulted in serious injury of one vehicle occupant and the death of another occupant, based on the defendant's appearance and statements made to medical personnel, the trial court found that the implied consent notice was properly administered and suppression of the state-administered chemical tests was denied; although the defendant was not under arrest at the time the implied consent notice was read to the defendant, given the serious injuries resulting from the accident and the fact that there was probable cause to believe the defendant was driving while impaired, the consent to testing was implied pursuant to O.C.G.A. § 40-5-55. Ellis v. State, 275 Ga. App. 881, 622 S.E.2d 89 (2005).

In a DUI per se case, the trial court did not err in denying the defendant's motion to suppress the results of a chemical testing of the defendant's blood because the defendant freely and voluntarily consented to the test as the defendant gave an affirmative response to the officer's question pursuant to the implied consent notice; the officer did not employ shows of force; and, at the fire station, the defendant reaffirmed the defendant's assent before the medic drew the defendant's blood. Jacobs v. State, 338 Ga. App. 743, 791 S.E.2d 844 (2016).

Inadmissibility of blood test.

- When an officer failed to read appropriate warnings to the defendant, it was error to admit results of the defendant's breath tests, even though the defendant had stipulated to the facts that would be demonstrated by the results of the tests, i.e., that the defendant had a blood alcohol level of .207. Richards v. State, 269 Ga. 483, 500 S.E.2d 581 (1998), reversing Richards v. State, 225 Ga. App. 777, 484 S.E.2d 683 (1997).

Horizontal gaze nystagmus test was a valid indication of the presence of alcohol, the results of which were admissible. Manley v. State, 206 Ga. App. 281, 424 S.E.2d 818 (1992).

Officer was properly permitted to testify that, in the officer's opinion, the defendant was under the influence of alcohol to the extent that it was less safe for the defendant to drive based on the results of the horizontal gaze nystagmus test the officer administered. Sieveking v. State, 220 Ga. App. 218, 469 S.E.2d 235 (1996).

Evidence regarding the officer's training and experience in administering field sobriety tests and the procedures the officer followed in administering horizontal gaze nystagmus tests justified admission of the results of the defendant's tests. Tuttle v. State, 232 Ga. App. 530, 502 S.E.2d 355 (1998).

There was no merit to a defendant's argument that the results of a horizontal gaze nystagmus test should not have been admitted because an officer did not perform the test properly. The officer substantially performed the test in accordance with the guidelines, and the defendant showed six clues of impairment. Hann v. State, 292 Ga. App. 719, 665 S.E.2d 731 (2008).

Defendant, who had cerebral palsy, failed to show that the results of a horizontal gaze nystagmus test performed on the defendant were unreliable and therefore inadmissible due to the defendant's medical condition. Moreover, the officers had sufficient other evidence to arrest the defendant for driving under the influence, including erratic driving, an odor of alcohol, the defendant's admission that the defendant had been drinking, and the results of an alco-sensor test. Harris v. State, 301 Ga. App. 775, 689 S.E.2d 91 (2009).

Arresting officer's performing one of the three evaluative components of the horizontal gaze nystagmus (HGN) test (the smooth pursuit component) "a little quickly" did not render the entire test inadmissible, given evidence of the officer's experience at giving the test, that the defendant was a proper subject, and that the other components were correctly performed. Parker v. State, 307 Ga. App. 61, 704 S.E.2d 438 (2010).

In the defendant's DUI trial, O.C.G.A. § 40-6- 391(a)(1), horizontal gaze nystagmus (HGN) test was properly admitted, although the defendant stated the defendant had taken Prozac, which would influence the results, because the evidence was relevant as to whether the defendant showed signs of impairment, O.C.G.A. § 24-4-401, and the defendant remained free to attempt to persuade the factfinder that the testimony be afforded little weight under the circumstances. Cherry v. State, 345 Ga. App. 409, 813 S.E.2d 408 (2018).

Passive alcohol sensor.

- Trial court properly convicted the defendant of driving under the influence and related charges after a bench trial, and no error occurred with regard to the trial court failing to suppress the evidence gathered by the arresting officer's use of a passive alcohol sensor; the defendant was not harmed by any alleged error since the state never offered any of the evidence directly gathered by the sensor for admission during trial. Sultan v. State, 289 Ga. App. 405, 657 S.E.2d 311 (2008).

Although a trial court should have suppressed the results of an improperly performed horizontal gaze nystagmus (HGN) test, with regard to defendant's convictions for driving under the influence offenses, such error was harmless since the trial court specifically stated on the record that the trial court did not consider the HGN test; therefore, the test did not contribute to the verdict in the case. Sultan v. State, 289 Ga. App. 405, 657 S.E.2d 311 (2008).

Injuries' impact on field sobriety test admissibility.

- Admissibility of field sobriety tests was not affected by the defendant's injuries at the time the tests were given. Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8 (1997).

Error in excluding HGN test results.

- Officer's comment to the defendant that "I'm just going to shut your car door so some other drunk doesn't take it off," was insufficient to cause a reasonable person to believe that the person's detention would not have been temporary, and a trial court erred in excluding on the basis of a Miranda violation evidence of the results of roadside sobriety tests performed on the defendant thereafter; evidence concerning the officer's improper administration of a horizontal gaze nystagmus (HGN) test did not mandate the exclusion of the test results, and the trial court erred in excluding the results of the HGN evaluation. State v. Pierce, 266 Ga. App. 233, 596 S.E.2d 725 (2004).

Miranda warnings before administering field sobriety tests.

- Defendant's suppression motion was properly denied as an officer was not required to give the defendant Miranda warnings before administering field sobriety tests as the officer did not make any statement that would cause a reasonable person to believe that the defendant was under arrest and not temporarily detained during an investigation. Moody v. State, 273 Ga. App. 670, 615 S.E.2d 803 (2005).

Because the Miranda requirements were not triggered until the defendant's arrest, and after performance of the field sobriety tests, suppression of the test results was not required. Doyle v. State, 281 Ga. App. 592, 636 S.E.2d 751 (2006).

Trial court did not err by denying the defendant's motion to suppress or motion for new trial with regard to the defendant's convictions for driving under the influence because it was not necessary for the stopping officer to advise the defendant of the Miranda rights prior to administering the field sobriety tests since the defendant was not under arrest. Officers are not required to provide warnings under Miranda prior to administering field sobriety tests during a traffic stop unless the suspect is in custody. Appling v. State, 320 Ga. App. 379, 739 S.E.2d 816 (2013).

Evidence of the defendant's refusal to submit to voluntary field sobriety tests was admissible, and was not testimonial in nature and thus subject to the Fifth Amendment protection against self-incrimination as a refusal to submit to the tests was not testimonial in nature, and the mere fact that the defendant refused to submit to a blood test was not subject to the privilege against self-incrimination since no impermissible coercion was involved, regardless of the form of refusal. Ferega v. State, 286 Ga. App. 808, 650 S.E.2d 286 (2007), cert. denied, 129 S. Ct. 195, 172 L. Ed. 2d 140 (2008).

In a driving under the influence per se case, the defendant's motion to suppress was properly denied as no Miranda warning was required because the defendant was not in custody when the defendant took the portable breath test and told the officer that the defendant had consumed four beers that evening; the officer indicated to the defendant that the officer believed that the defendant was impaired, but the officer never indicated to the defendant that the defendant would be under arrest regardless of the outcome of the breath test or whether the defendant agreed to submit to the test at all; and nothing in the officer's statements would have given the defendant the impression that the defendant's detention was more than temporary. Oh v. State, 345 Ga. App. 729, 815 S.E.2d 95 (2018).

Probable cause for arrest existed.

- Trial court properly convicted the defendant of driving under the influence and related charges after a bench trial because probable cause existed to arrest the defendant based on the officer's observations of: (1) the defendant having slurred speech and red, watery eyes; (2) having a positive breath test result; (3) having the smell of alcohol coming from the defendant's vehicle; and (4) the defendant admitting to drinking. Sultan v. State, 289 Ga. App. 405, 657 S.E.2d 311 (2008).

Based on the totality of the circumstances, an officer had probable cause to arrest the defendant for driving under the influence; the evidence showed that the officer, while investigating a one-vehicle accident in which the defendant's truck ran off the road, detected the odor of alcohol when talking with the defendant, and observed that the defendant's speech was mumbled and slow, and that the defendant's eyes were bloodshot. The defendant also initially gave the officer a credit card instead of a license, and admitted to having one or more drinks. Cash v. State, 299 Ga. App. 303, 682 S.E.2d 607 (2009), cert. denied, No. S09C1984, 2010 Ga. LEXIS 50 (Ga. 2010).

Probable cause for testing found.

- Under the Fourth Amendment, an officer had probable cause to have a defendant submit to an alco-sensor test. The officer had validly stopped the defendant's car after a passenger littered, and the officer saw open beer bottles in the car and smelled alcohol in the car even after the bottles and the passenger had been removed. Hinton v. State, 289 Ga. App. 309, 656 S.E.2d 918 (2008).

There was probable cause under the Fourth Amendment for an officer to request a blood test under O.C.G.A. § 40-5-55 from a defendant suspected of driving under the influence when the defendant showed four out of six signs of impairment on a horizontal gaze nystagmus test, admitted to drinking, smelled of alcohol, had a positive alco-sensor result, and had bloodshot eyes. The fact that an officer did not believe that there was probable cause to request the blood test did not require a different finding as the scope of a person's Fourth Amendment rights was determined objectively. State v. Preston, 293 Ga. App. 94, 666 S.E.2d 417 (2008).

Because plaintiff arrestee's initial blood alcohol level had been high enough for the initial O.C.G.A. § 40-6-391(a)(5) per se driving under the influence charge, but tests a year later by defendant crime lab employees resulted in lower levels, the lab employees were entitled to qualified immunity on the arrestee's Sixth Amendment compulsory process claim, which alleged the lab employees failed to disclose the lower results. The test of materiality had to be applied post-trial with the arrestee having to show that the suppression of the evidence undermined confidence in the outcome of the trial, and since the state judge and jury had found the arrestee's evidence and arguments convincing enough that the arrestee was not convicted of even the lesser DUI charge under O.C.G.A. § 40-6-391(a)(1), any additional testimony in the arrestee's favor would not have achieved a better result; thus, the materiality test had not been satisfied and the Sixth Amendment claim failed. Kjellsen v. Mills, 517 F.3d 1232 (11th Cir. 2008).

Denying defendant crime lab employees qualified immunity on plaintiff arrestee's Fourth Amendment malicious prosecution claim for nondisclosure of later blood alcohol level test results was reversed because: (1) the arrestee's blood alcohol level had been high enough for the initial O.C.G.A. § 40-6-391(a)(5) per se driving under the influence charge; and (2) it was undisputed that blood alcohol levels often decreased over time; thus, the lower level test results a year later did not negate probable cause. Kjellsen v. Mills, 517 F.3d 1232 (11th Cir. 2008).

Challenging test given by expert.

- Trial court did not abuse the court's discretion by sequestering the defendant's expert witness with regard to challenging the officer's method of administering the horizontal gaze nystagmus test because the expert did not observe the actual test, thus, any opinion would have been based on the officer's testimony or on hypothetical questions posed by counsel and the defendant had previously challenged the officer's method of administering the test in a motion to suppress and had the benefit of that testimony prior to trial. Puckett v. State, 321 Ga. App. 785, 743 S.E.2d 466 (2013).

Request for an independent test.

- After the defendant was convicted of driving under the influence-per se, the defendant's motion to suppress the results of a state-designated breath test was properly denied because, after placing the defendant under arrest and reading the defendant the Georgia implied consent notice, the trooper asked the defendant if the defendant was willing to submit to a chemical test of the defendant's breath, but the defendant responded by saying that the defendant would take a urine test; the trooper then explained that the trooper was asking the defendant to submit to a breath test and the defendant agreed to submit to that test; and the defendant never requested an independent test of the defendant's urine, blood, or breath. Farmer v. State, 335 Ga. App. 679, 782 S.E.2d 786 (2016).

Blood-alcohol content deemed direct evidence.

- When the defendant contended the trial court erred by denying the defendant's request to charge the definitions of "direct" and "circumstantial evidence," arguing that the evidence relating to the percentage of alcohol in the defendant's blood at the time the defendant was driving is circumstantial because the percentage of alcohol in a person's breath, rather than the percentage of alcohol in the blood, is specified in paragraph (a)(4) of O.C.G.A. § 40-6-391, it was held that O.C.G.A. § 40-6-392(a) makes it clear that a breath test is used to determine the amount of alcohol in a person's blood, and since there was direct evidence that the defendant was driving an automobile on a public highway at 1:52 a.m., and direct evidence that 32 minutes later the intoximeter test registered a blood-alcohol content of .15, whether or not the evidence that the defendant was driving with .15 percent alcohol in the defendant's blood was circumstantial was immaterial, because, when there is some direct evidence involved in the case, it is not error to fail to charge on circumstantial evidence. Herndon v. State, 187 Ga. App. 313, 370 S.E.2d 164 (1988) (decided prior to 1988 amendment).

Breath testing instrument inspection certificate admissible.

- In a defendant's prosecution for driving under the influence under O.C.G.A. § 40-6-391, the inspection certificate for the instrument used to conduct the defendant's breath test under O.C.G.A. § 40-6-392(f) was properly admitted because it was not testimonial hearsay and did not violate the defendant's rights of confrontation; it was a business record that was not made in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706 (2006).

Manner of driving may be considered when there is evidence that the defendant has been drinking. Turner v. State, 95 Ga. App. 157, 97 S.E.2d 348 (1957) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Statement by witness that automobile "operated" by defendant.

- Answer by state trooper that automobile was "operated" by the defendant accused of drunken driving was not subject to objection as a conclusion when the answer was in reference to facts observed by the witness when the trooper arrived at the scene. Echols v. State, 104 Ga. App. 695, 122 S.E.2d 473 (1961) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Blood alcohol evidence irrelevant.

- Evidence of defendant's blood alcohol content was irrelevant to defendant's prosecution under the "less safe" provisions of O.C.G.A. § 40-6-391(a)(1). Evans v. State, 253 Ga. App. 71, 558 S.E.2d 51 (2001).

Any error in the admission of the defendant's hospital test results was harmless after the officer testified that, based on the accident, speaking with the defendant, and the odor of alcoholic beverage coming from the defendant's breath, the officer felt that the defendant was a less-safe driver when an accident occurred; even without the hospital's tests, the evidence of guilt was overwhelming in light of the manner of the crash, the defendant's admission to driving the car, and the officer's observations of the defendant's demeanor. King v. State, 272 Ga. App. 8, 611 S.E.2d 692 (2005).

Trial court did not abuse the court's discretion in excluding the evidence of the defendant's blood test obtained after being released from jail, which was negative for marijuana, because the state tried the defendant only for violating O.C.G.A. § 40-6-391 by driving under the influence of alcohol, and the blood test shed no light on the defendant's alcohol impairment; thus, it was properly determined irrelevant by the trial court. Smith v. State, 324 Ga. App. 100, 749 S.E.2d 395 (2013).

Denial of motion in limine not error.

- Trial court did not err in denying the defendant's motion in limine to exclude a failure to take a breath test and other evidence in a criminal trial on a charge of driving under the influence of alcohol to the extent that the defendant was a less safe driver, in violation of O.C.G.A. § 40-6-391, as there was probable cause to arrest the defendant without such tests based on the defendant's conduct and the officer's observations; the defendant was weaving in and out of lanes, fumbled with the bus controls when asked to turn off the vehicle, the defendant exited the vehicle in an unsteady manner, and the officer observed that the defendant spoke in a slow and confused way, and that the defendant smelled of alcohol. Lewis v. State, 276 Ga. App. 248, 622 S.E.2d 912 (2005).

Trial court did not err in denying the defendant's motion in limine to suppress the results of a state-administered breath test as an officer's implied consent warning was substantively accurate so as to allow the defendant to make an informed decision about whether to consent to the test, and solely referred to the defendant's privilege to drive within the state of Georgia with a Georgia driver's license, and not the defendant's Pennsylvania license; further, the officer's initial statement was nothing more than an attention-grabbing preface, and as such did not constitute a substantive change that altered the meaning of the implied consent notice thereafter recited to the defendant. McHugh v. State, 285 Ga. App. 131, 645 S.E.2d 619 (2007).

Trial court properly denied defendant's motion in limine and upheld defendant's conviction for driving under the influence as the traffic stop of his vehicle was justified since the evidence showed that he committed a traffic offense by making an abrupt turning maneuver in his vehicle to evade a roadblock, which was a sufficiently suspicious and deliberately furtive response to the road check so as to give the officer at least a reasonable suspicion of defendant's criminal activity and to warrant further investigation. Stinson v. State, 318 Ga. App. 351, 733 S.E.2d 390 (2012).

Evidence sufficient to justify brief investigatory stop.

- Merely observing a can of beer in the hand of one who is otherwise driving a car or operating a boat in a safe manner does, in and of itself, constitute an articulable suspicion that a violation of O.C.G.A. § 40-6-391 or O.C.G.A. § 52-7-12 may be occurring so as to authorize a brief investigatory stop. State v. Baker, 197 Ga. App. 1, 397 S.E.2d 554 (1990).

Denial of a motion to suppress was not error because the police officer who pulled the defendant over had probable cause to believe that the defendant was a less safe driver because the defendant was all over the road, smelled of alcohol, and threw up all over the place and the officer could have arrested the defendant under O.C.G.A. § 40-6-391, rather than wait for a DUI officer. Abrahamson v. State, 276 Ga. App. 584, 623 S.E.2d 764 (2005).

Because the defendant's apparent violation of O.C.G.A. § 40-6-16(a) gave the investigating officer a reasonable and articulable suspicion to stop the defendant and inquire further, the trial court erred in granting the defendant's motion to suppress a refusal to take a breath test in connection with DUI charges; moreover, the trial court erroneously concluded that the defendant could have had an innocent explanation for a last-minute swerve to avoid hitting the officer's patrol car as the issue went to the question of guilt or innocence and was not the dispositive question on a motion to suppress. State v. Rheinlander, 286 Ga. App. 625, 649 S.E.2d 828 (2007).

Trial court erred by granting the defendant's motion to suppress the evidence of a DUI violation obtained during the traffic stop of the defendant's vehicle by committing clear error in finding that the officer lacked a reasonable, articulable suspicion to stop the defendant's car as the officer had received a radio dispatch and had obtained information from a fast-food restaurant employee that suspicious persons in a vehicle were banging on the windows and cursing at the fast-food restaurant. Such actions involved engaging in disorderly conduct, which was an allegation of a crime that gave the officer grounds for conducting a brief traffic stop of the defendant's vehicle for investigatory purposes. State v. Melanson, 291 Ga. App. 853, 663 S.E.2d 280 (2008).

Defendant's conviction for DUI per se in violation of O.C.G.A. § 40-6-391(a)(5) was upheld. The traffic stop of the defendant was proper because the officer observed the defendant driving erratically, including sudden braking and weaving within the lane, even though the defendant was acquitted of failure to operate the vehicle within a single lane, O.C.G.A. § 40-6-48(1). Ivey v. State, 301 Ga. App. 796, 689 S.E.2d 100 (2009).

Trial court did not err by denying a motion to suppress because the evidence supported the trial court's conclusion that a police officer, who responded to a report of a fight in a parking lot, had an articulable suspicion to stop the defendant when the officer saw the defendant driving fast from the parking lot, and investigate further the defendant's connection to the reported fight. Hines v. State, 308 Ga. App. 299, 707 S.E.2d 534 (2011).

With regard to the defendant's conviction for driving under the influence, the trial court properly denied the defendant's motion to suppress because the officer had a reasonable, articulable suspicion to detain the defendant upon finding the defendant asleep behind the wheel of a vehicle with the engine running, and the defendant was unresponsive when the officer initially shined the officer's flashlight inside the vehicle. Pierce v. State, 319 Ga. App. 721, 738 S.E.2d 307 (2013).

After the defendant was convicted of driving under the influence per se, the trial court did not err in denying the defendant's motion to suppress evidence obtained during a traffic stop that resulted in the defendant's arrest as the trial court did not clearly err in finding that the officer had reasonable suspicion to initiate the investigatory stop based on a traffic violation because some evidence supported the trial court's findings that the officer's testimony was credible and that the defendant crossed the fog line. Phillips v. State, 338 Ga. App. 231, 789 S.E.2d 421 (2016).

Opportunity to take independent test.

- Because the trial court found that the arresting officer made a reasonable effort to accommodate the defendant's request for an independent blood test pursuant to O.C.G.A. § 40-6-392(a)(3), the court did not err in denying the defendant's motion to suppress the blood test. Whittle v. State, 282 Ga. App. 64, 637 S.E.2d 800 (2006).

Defendant's right to an independent blood alcohol content test under O.C.G.A. § 40-6-392(a)(3) was not invoked by asking the officer if the defendant could blow again because the defendant admitted that, at the time, the defendant did not know there was a difference between an independent test and the state's test and that the defendant was satisfied when the officer said that the defendant could blow again down at the station. Waterman v. State, 299 Ga. App. 630, 683 S.E.2d 164 (2009).

Request for an independent test.

- Allegedly impaired driver's statement that the driver wanted "more tests" could not reasonably be construed as a request for an independent chemical test of the driver's own choosing because the driver made the request to the officer immediately after being given field sobriety tests. Therefore, the results of the state-administered test were properly admitted at trial. Avery v. State, 311 Ga. App. 595, 716 S.E.2d 729 (2011).

Breath test admissible despite refusal to permit defendant to consult with counsel.

- Motion filed by a defendant to exclude the results of a breath test under the Georgia implied consent law in the defendant's prosecution for driving under the influence under O.C.G.A. § 40-6-391 was properly denied because the defendant was not entitled to the advice of counsel before deciding whether to submit to the test; the right to counsel under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XIV did not come into play until the proceedings had reached a critical stage, and the breath test was not such a stage because it did not signal the beginning of a formal adversary hearing and because a lawyer could add little to the warnings required from the officer administering the test by O.C.G.A. § 40-6-392(a)(4). Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706 (2006).

Delay in releasing state administered blood test results.

- State's failure to immediately inform a defendant of the results of the state administered test does not create a situation where the defendant is left with no, or so little, information that he or she is denied any meaningful choice in violation of due process; driving under the influence defendants must determine, often under difficult and stressful circumstances, whether to request an independent test, and that the choice may be difficult does not render it fundamentally unfair and this fact alone does not support a due process claim. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012).

Suppressed breath test results remained admissible for impeachment purposes.

- Despite an order suppressing the defendant's breath test results, the results remained admissible for impeachment purposes once the defendant testified that the limited alcohol consumed did not affect or impair the defendant's ability to drive. Moreover, absent bad faith or an order requiring production, the state did not fail to fully disclose all information regarding the breath test. Rosandich v. State, 289 Ga. App. 170, 657 S.E.2d 255 (2008), cert. denied, No. S08C0861, 2008 Ga. LEXIS 380 (Ga. 2008).

Obtaining breathalyzer information from out-of-state manufacturer.

- Trial court did not err by requiring defendant to proceed to trial without the source code and other requested information as it had granted a certificate under O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information from the breathalyzer manufacturer located in Kentucky, set the case with enough time to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526 (2013).

Use of roadblock.

- Driving under the influence of alcohol conviction was upheld as the trial court properly denied the defendant's motion to suppress breath test results taken from an officer posted at a secondary roadblock, since the evidence supported the fact that the officer was part of the primary roadblock, and thus had a legitimate authority to stop the defendant; the fact that the officer may have served as the chase car was irrelevant as the chase car was also part of the primary roadblock. Fischer v. State, 261 Ga. App. 44, 581 S.E.2d 680 (2003).

In a trial for driving under the influence in violation of O.C.G.A. § 40-6-391(a)(1) and (5), the trial court properly suppressed results of the breath tests after determining that the arresting officer's testimony was not credible; although the defendant had bloodshot, red, and watery eyes and an odor of alcohol during a routine roadblock, those facts did not establish probable cause to arrest, and the defendant's refusal to perform field sobriety tests did not necessarily result in an inference that the defendant was unable to successfully perform the tests. State v. Ellison, 271 Ga. App. 898, 611 S.E.2d 129 (2005).

Even assuming that the probate court erroneously failed to grant the defendant's oral motion in limine concerning the constitutionality of a roadblock, the defendant's conviction for driving under the influence to the extent that it was less safe to drive was affirmed on appeal as similar evidence concerning the roadblock was admitted, without objection, making any error related to the admission of the objected-to evidence harmless beyond a reasonable doubt. State v. Rigdon, 284 Ga. App. 785, 645 S.E.2d 17 (2007), cert. denied, No. S07C1211, 2007 Ga. LEXIS 541 (Ga. 2007).

Because a form document, entitled the "Henry County Police Department Roadblock & Safety Checkpoint Record," introduced at a motion to suppress hearing by the state was properly admitted as a business record under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803), and the testimonial evidence regarding the primary purpose of the roadblock passed constitutional muster, in that it was legitimately conducted as part of a statewide "zero tolerance" campaign, the defendant's motion to suppress the evidence seized as a result was properly denied. Yingst v. State, 287 Ga. App. 43, 650 S.E.2d 746 (2007).

Trial court properly found that a roadblock leading to the defendant's arrest was lawful, pretermitting whether the requesting sergeant was a supervisory officer, and the trial court properly denied the defendant's motion to suppress evidence seized as a result of an arrest for DUI. The record also supported the conclusions that all vehicles were stopped, that the delay to motorists was minimal, and that the roadblock was well identified, the stop was made within the constitutional confines of a routine motorist roadblock, and the defendant's arrest was the result of a personal decision to operate a motor vehicle while in an intoxicated state. Velasquez v. State, 288 Ga. App. 109, 653 S.E.2d 518 (2007).

In the defendant's trial for driving under the influence under 18 U.S.C. §§ 7 and 13 and O.C.G.A. § 40-6-391 and an open container violation under O.C.G.A. § 40-6-253, a motion to suppress evidence obtained as a result of a Selective Traffic Enforcement Program roadblock was denied because the roadblock reasonably fit within the Fourth Amendment constraints. Implied consent protections did not apply to field sobriety tests because the defendant was not under arrest at the time such tests were performed. United States v. Howard, F. Supp. 2d (S.D. Ga. Sept. 24, 2008).

Trial court did not err in denying the defendant's motion to suppress evidence obtained during a roadblock or in convicting the defendant of driving under the influence per se in violation of O.C.G.A. § 40-6-391 because the evidence was sufficient to show that the decision to implement the roadblock was made by a supervisory officer, which prevented the field officers from exercising unfettered discretion in stopping the drivers since the lieutenant and corporal who implemented the roadblock testified that they were supervisors in the traffic unit of the county sheriff's office; the trial court was authorized to find that the purposes of the roadblock were as stated by the lieutenant and corporal, and each of the identified purposes set forth in the order for the roadblock was a legitimate primary purpose. Rappley v. State, 306 Ga. App. 531, 702 S.E.2d 763 (2010).

Testimony from a sheriff's chief deputy authorized a trial court to find that a sergeant had authority to implement roadblocks and that the sergeant had a legitimate primary purpose for implementing a roadblock at which the defendant was stopped and arrested, which was highway safety and driver sobriety. Martin v. State, 313 Ga. App. 226, 721 S.E.2d 180 (2011).

Trial court did not err in denying the defendant's motion to suppress evidence seized at a roadblock because the state met the state's burden of establishing the legitimate purpose of the roadblock by introducing a certified copy of a department of public safety roadblock approval form; the programmatic purposes set out in the roadblock form were supported by the other evidence at the suppression hearing, and the police officers' actions at the scene were in line with those purposes. Hite v. State, 315 Ga. App. 221, 726 S.E.2d 704 (2012), cert. denied, No. S12C1286, 2012 Ga. LEXIS 1020 (Ga. 2012).

Detention reasonable.

- Trial court did not err in denying the defendant's motion to suppress evidence obtained at a roadblock after finding that the defendant's detention by the officers was not excessive because the trial court was authorized to conclude that the brief detention of the defendant was neither unreasonable nor illegal; the trial court's findings that the arresting officer detained the defendant for 20 minutes after the initial portable breath test to conduct an additional test and that the 20 minute delay was for the defendant's benefit of to insure that the portable alcohol test was not affected by residual alcohol due to the defendant's recent consumption of alcoholic beverages were supported by the evidence. Owens v. State, 308 Ga. App. 374, 707 S.E.2d 584 (2011), cert. denied, No. S11C1036, 2011 Ga. LEXIS 498 (Ga. 2011).

Trial court did not err in denying the defendant's motion to suppress evidence obtained at a roadblock because given the evidence presented, the trial court was authorized to conclude that the sergeant issued the order for the roadblock properly and initiated, authorized, and supervised the roadblock and that the sergeant's decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose; the evidence supported the trial court's findings of fact that the information on the roadblock approval form, which stated the reasons for the roadblock, did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom the roadblock was authorized. Owens v. State, 308 Ga. App. 374, 707 S.E.2d 584 (2011), cert. denied, No. S11C1036, 2011 Ga. LEXIS 498 (Ga. 2011).

No probable cause for arrest.

- Officers did not have probable cause to arrest the defendant for driving under the influence when the defendant displayed none of the telltale signs of inebriation and the defendant had an explanation for the wreck. State v. Burke, 230 Ga. App. 392, 496 S.E.2d 755 (1998).

Under the Tate standard, the defendant's breath test results, obtained while defendant was in custody, were properly suppressed as the arresting officer lacked probable cause to arrest the defendant for driving under the influence since: (1) the defendant had a single-car accident; (2) the defendant had two clues for intoxication in the HGN test, while the other four clues were inconclusive or indicated no intoxication; (3) the defendant's alco-sensor test results were positive for alcohol; (4) the trial court found that all of the alleged indicia of impairment were caused by the accident or lacked credibility; and (5) the defendant adequately explained the accident to the officer. State v. Gray, 267 Ga. App. 753, 600 S.E.2d 626 (2004), disapproved, Hughes v. State, 296 Ga. 744, 770 S.E.2d 636 (2015).

Trial court should have directed a verdict of acquittal on a charge of DUI to the extent that the defendant was less safe; the only evidence was the smell of alcohol on the defendant's breath, but there was no evidence that the defendant's driving ability was impaired due to alcohol consumption. Ojemuyiwa v. State, 285 Ga. App. 617, 647 S.E.2d 598 (2007).

Trial court erred in denying a defendant's motion to suppress because the state did not establish sufficient probable cause to arrest the defendant for driving under the influence when the state offered no evidence showing that the defendant's driving ability was impaired due to alcohol consumption; evidence that an officer smelled alcohol on the defendant's breath, that an alco-sensor test revealed the presence of alcohol, and that the defendant admitted that the defendant had been drinking "earlier in the day" was insufficient as a matter of law to constitute probable cause to arrest the defendant for driving under the influence. Handley v. State, 294 Ga. App. 236, 668 S.E.2d 855 (2008).

Although the defendant had glassy and watery eyes, smelled of alcohol, and admitted to drinking a glass of wine, other testimony supported an inference that the defendant was not an impaired driver; accordingly, the defendant's motion to suppress was properly granted based on a finding that there was no probable cause to arrest the defendant for violating O.C.G.A. § 40-6-391(a)(1). State v. Goode, 298 Ga. App. 749, 681 S.E.2d 199 (2009), disapproved, Hughes v. State, 296 Ga. 744, 770 S.E.2d 636 (2015).

Trial court did not clearly err in granting a DUI defendant's motion to suppress evidence based on a lack of probable cause to arrest the defendant. The state failed to show that the defendant's driving ability was impaired due to alcohol consumption, O.C.G.A. § 40-6-391(a)(1), but only that the defendant tested positively for alcohol, that the defendant smelled of alcohol, and that the defendant admitted having drinks hours earlier. State v. Damato, 302 Ga. App. 181, 690 S.E.2d 478 (2010).

Order denying the defendant's motion to suppress any evidence obtained as a result of arrest was reversed because the officer lacked probable cause to arrest the defendant for driving under the influence since the officer testified that the stop was initiated not because of the defendant's driving, but because of an obstructed license plate, and the defendant indicated no signs of intoxication following certain tests and the only evidence was defendant's admission the defendant had consumed a beer earlier. Bostic v. State, 332 Ga. App. 604, 774 S.E.2d 175 (2015).

Weaving as providing probable cause.

- It is well established that weaving, both out of one's lane and within one's own lane, particularly when combined with other factors, may give rise to reasonable articulable suspicion on the part of a trained law enforcement officer that the driver is violating the driving under the influence laws, and the conduct forming the basis of the reasonable suspicion need not be a violation of the law. Veal v. State, 273 Ga. App. 47, 614 S.E.2d 143 (2005).

Stop authorized when officer witnesses driver weaving outside lane.

- Police officer who witnessed a driver weaving from the driver lane to the curb lane had reasonable information to believe that a criminal offense was being committed, and therefore had probable cause to stop the automobile. State v. Bowen, 231 Ga. App. 95, 498 S.E.2d 570 (1998).

Trial court did not err in denying the defendant's motion to suppress because the officer was justified in stopping the defendant's vehicle based on the videotaped evidence that established that the officer observed the defendant's vehicle failing to maintain the vehicle's lane in violation of O.C.G.A. § 40-6-48(1). Acree v. State, 319 Ga. App. 854, 737 S.E.2d 103 (2013).

Stop authorized when driver on wrong side of road.

- Investigating officer had a reasonable articulable suspicion to stop the defendant's vehicle based on a violation of O.C.G.A. § 40-6-40 for driving on the wrong side of the road; hence, the defendant's motion to suppress was properly denied on this ground. Dunbar v. State, 283 Ga. App. 872, 643 S.E.2d 292 (2007).

Stop held invalid.

- Since a9-1-1 call from an unidentified informant did not provide the police with reasonable suspicion to stop the defendant's vehicle, the stop unreasonably intruded upon the defendant's Fourth Amendment rights; as a result, the trial erred by denying the defendant's motion to suppress. Slocum v. State, 267 Ga. App. 337, 599 S.E.2d 299 (2004).

In a prosecution for driving under the influence, the trial court erroneously denied the defendant's motion to suppress evidence seized as a result of a traffic stop made by an officer armed with only a "be on the lookout" warning as the officer lacked a particularized and objective basis for suspecting that the defendant was involved in any criminal activity, but admitted to possessing only scant information about the driver, the year and make of the vehicle being driven, and the vehicle's direction of travel; moreover, the mere fact that the defendant's gold Ford truck was located in the vicinity of the alleged crime did not necessarily give rise to articulable suspicion. Murray v. State, 282 Ga. App. 741, 639 S.E.2d 631 (2006).

Trial court did not err in finding that an officer's traffic stop was unreasonable and not based on the observation of an illegal right turn in violation of O.C.G.A. § 40-6-120(1), given evidence that the defendant activated the turn signal and checked for traffic behind the vehicle prior to turning right from a lane adjacent to the right-hand-turn lane. Therefore, evidence of the defendant's alcohol consumption taken after the officer's stop was properly suppressed. State v. Mincher, 313 Ga. App. 875, 723 S.E.2d 300 (2012).

Stop held valid.

- Despite the defendant's claim that a sheriff's deputy lacked a specific and articulable suspicion of criminal activity necessary to execute a traffic stop of the defendant's vehicle, and thus that the evidence seized thereafter had to be suppressed, the appeals court found otherwise as sufficient facts had been conveyed to the deputy prior to the stop for the deputy to have a reasonable belief that the defendant had been involved in a domestic dispute, and might be under the influence of alcohol to justify a finding that the resulting stop was valid; hence, suppression was properly denied. Lacy v. State, 285 Ga. App. 647, 647 S.E.2d 350 (2007), cert. denied, No. S07C1514, 2007 Ga. LEXIS 620 (Ga. 2007).

In a driving under the influence case, there was no merit to the defendant's argument that an officer lacked articulable suspicion to stop the defendant's vehicle. Testimony that the defendant was swerving showed that the defendant was not stopped because of mere inclination, caprice, or harassment, and the trial court accepted the officer's testimony that the full extent of the defendant's actions was not reflected on a video shown to the jury. Hann v. State, 292 Ga. App. 719, 665 S.E.2d 731 (2008).

Sufficient evidence to withstand motion for directed verdict.

- Evidence was sufficient to deny a defendant's motion for a directed verdict in a prosecution for reckless vehicular homicide, reckless driving, DUI, running a red light, and failure to exercise due care when, after smoking crack and arguing with the defendant's former spouse, the defendant had struck a car from behind, struck a pedestrian, and collided with a burgundy car, killing the burgundy car's two occupants; the defendant was found slumped over on the front driver's side of the pickup truck the defendant was driving. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).

Because sufficient evidence was presented to support a finding that the defendant was intoxicated to the level that the intoxication caused both the defendant's loss of consciousness and an accident resulting in the defendant's truck straddling a ditch with the truck's nose down at close to a 90-degree angle, and the responding deputies testified that the defendant appeared to be under the influence of alcohol to the extent that it was less safe to drive, the defendant's conviction for violating O.C.G.A. § 40-6-391(a)(1) was supported by sufficient direct evidence of guilt; thus, a directed verdict of acquittal as to that charge was properly denied. Stewart v. State, 288 Ga. App. 735, 655 S.E.2d 328 (2007).

In a trial for driving under the influence of alcohol to the extent of being a less safe driver in violation of O.C.G.A. § 40-6-391(a)(1), the trial court properly denied the defendant's motion for a directed verdict, given a properly admitted9-1-1 call describing the defendant's erratic driving, the defendant's admission to having had three drinks, the defendant's refusal to submit to chemical testing, and a police officer's testimony that it was the officer's opinion that the defendant was under the influence of alcohol to the extent of being a less safe driver. Key v. State, 289 Ga. App. 317, 657 S.E.2d 273 (2008).

Prior consumption only circumstantial evidence of later being under influence.

- While there was direct evidence that the defendant had consumed some alcoholic beverage prior to the collision, this was at most only circumstantial evidence that the defendant was under the influence of alcoholic beverages at the time of the collision. Culver v. State, 80 Ga. App. 438, 56 S.E.2d 197 (1949) (decided under former Code 1933, § 68-307).

Use of circumstantial evidence.

- Driving a vehicle while intoxicated may be shown by circumstantial evidence. State v. Hill, 178 Ga. App. 669, 344 S.E.2d 491 (1986); Wooten v. State, 234 Ga. App. 451, 507 S.E.2d 202 (1998).

While circumstantial evidence of a defendant's intoxication at the time of the defendant's arrest would not be admissible in a case charging violation of paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 as proof that the defendant had violated paragraph (a)(1) of O.C.G.A. § 40-6-391, such evidence is admissible as evidence of the circumstances surrounding the appellant's arrest for having violated paragraph (a)(4) (now (a)(5)). Sapp v. State, 184 Ga. App. 527, 362 S.E.2d 406 (1987).

To be guilty of the offense of driving under the influence of intoxicants one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol or drugs. However, it is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence, such as a police officer finding the defendant in a parked car, intoxicated, with the motor running. Jones v. State, 187 Ga. App. 132, 369 S.E.2d 509 (1988).

Although the evidence was circumstantial, the evidence justified a finding of guilt beyond a reasonable doubt after the officer observed and testified to circumstances from which a jury could infer that the defendant was in actual physical control of the car when the car was moved to the location where the officer found the car, and that the defendant was intoxicated while moving it there. Johnson v. State, 194 Ga. App. 501, 391 S.E.2d 132 (1990).

When the defendant smelled of marijuana, slurred the defendant's speech, admitted smoking marijuana, and refused to submit to testing to confirm the presence of the drug, the trial court reasonably concluded that there was at least some marijuana present in the defendant's system. Albert v. State, 236 Ga. App. 146, 511 S.E.2d 244 (1999).

Although the officer never saw the defendant in control of the vehicle on the public highway and no evidence was presented that the defendant was observed under the influence of alcohol at the time the defendant was driving since the defendant admitted driving the car when the defendant lost control and that the defendant moved the car to the parking lot after the accident, the evidence of events was sufficient to allow the trier of fact to conclude that the defendant was intoxicated at the time the defendant was in control of the defendant's car. Goodson v. State, 242 Ga. App. 167, 529 S.E.2d 175 (2000).

Evidence was sufficient to convict the defendant of driving under the influence under O.C.G.A. § 40-6-391(a)(1) since the evidence showed that the officer was almost struck by the defendant's erratic driving, that the defendant appeared to be intoxicated shortly thereafter, and that the defendant fled from the would-be arresting officer, thereby providing enough circumstantial evidence for the jury to conclude that the defendant's driving was less safe due to the use of alcohol. Shockley v. State, 256 Ga. App. 892, 570 S.E.2d 67 (2002).

Driving under the influence was provable by circumstantial evidence; although an officer did not see the defendant's car moving, the officer saw sufficient circumstances to support the defendant's driving under the influence-less safe driver conviction because, inter alia, the officer found the defendant passed out behind the steering wheel of a car haphazardly parked in a lot with the car's engine running and lights on, and the defendant admitted to driving after taking medicine. Stephens v. State, 271 Ga. App. 634, 610 S.E.2d 613 (2005).

Sufficient circumstantial evidence supported the defendant's conviction for driving under the influence of alcohol to the extent that the defendant was a less safe driver; a reasonable inference could be made from the circumstantial evidence when the defendant was found with alcohol on the defendant's breath and the defendant's truck in a ditch. Raby v. State, 274 Ga. App. 665, 618 S.E.2d 704 (2005).

Evidence supported a conviction for driving under the influence as: (1) a trooper found the defendant sleeping behind the wheel with two young children in the car; (2) the defendant's blood-alcohol content was well over the legal limit; and (3) the defendant had clearly driven off the road at some point before the trooper discovered the car. Furlow v. State, 276 Ga. App. 332, 623 S.E.2d 186 (2005).

Defendant's conviction for driving under the influence to the extent that the defendant was a less safe driver was affirmed as a police officer opined that the defendant was impaired and the officer testified that: (1) the defendant smelled of alcohol; (2) the defendant was speeding; (3) the defendant's eyes were red and glassy and the defendant's speech was slurred; (4) the defendant refused to submit to any field sobriety tests; and (5) the defendant swayed while standing still. Lee v. State, 280 Ga. App. 706, 634 S.E.2d 837 (2006).

Because sufficient evidence existed for the arresting officer to believe that the defendant was under the influence of alcohol, specifically, the defendant's erratic driving; detecting the odor of alcohol on the defendant's breath; observing that the defendant was very emotional, had been crying, and had a flushed face and watery eyes; and that the defendant admitted to consuming alcohol, the trial court properly denied suppression of the evidence gathered. Slayton v. State, 281 Ga. App. 650, 637 S.E.2d 67 (2006).

Even without evidence of the failed field sobriety tests, because the experienced officer's undisputed testimony sufficiently showed that the defendant: (1) traveled at a high rate of speed; (2) swerved in and out of the defendant's lane of travel at least five times; (3) switched lanes by crossing over the gore area of the highway several times; (4) had bloodshot eyes and slow, uncoordinated movements; (5) smelled of alcohol, slurred words, and was unsteady on the defendant's feet, both the arrest and conviction for driving under the influence were supported by sufficient evidence and sufficient probable cause. Gregoire v. State, 285 Ga. App. 111, 645 S.E.2d 611 (2007).

Sufficient circumstantial evidence existed to support the defendant's convictions given that: (1) the defendant admitted to drinking and driving the vehicle that an officer testified to as having a warm engine; (2) the defendant had slurred speech, bloodshot eyes, and swaying movements; and (3) the surrounding circumstances helped to show that the defendant had been drinking and driving recently enough to satisfy the three-hour requirement under O.C.G.A. § 40-6-391(a)(5). O'Connell v. State, 285 Ga. App. 835, 648 S.E.2d 147 (2007).

Defendant's conviction of driving under the influence was proper, though based on circumstantial evidence only, because the fact finder was not required to accept as reasonable the hypothesis that the defendant became intoxicated only after the defendant arrived home or that someone else was driving the defendant's car when a citizen saw the car running other cars off the road. Silvers v. State, 297 Ga. App. 362, 677 S.E.2d 410 (2009).

Trial court did not err in convicting the defendant of driving under the influence of alcohol to the extent the defendant was a less safe driver in violation of O.C.G.A. § 40-6-391(a) because the trial court could have found from the evidence that no other reasonable hypothesis existed for the defendant's presence at the scene of an accident other than that the defendant wrecked a car while driving under the influence when: (1) a police officer found the defendant slumped over the wheel of a wrecked car, which was resting up against a curb and blocking the road, with the ignition on; (2) there was no evidence of anyone else in the area who could have driven the vehicle; and (3) the defendant was passed out in the car, drooling, and smelling of alcohol; although the car was not running when the officer arrived, and the officer had not seen the car moving, the officer observed circumstances from which a fact-finder could infer that the defendant was in actual physical control of the car when the car was moved to the location where the officer found the car and that the defendant was intoxicated while moving the car there. Patterson v. State, 302 Ga. App. 27, 690 S.E.2d 625 (2010).

Evidence that a defendant was found slumped over, asleep, in the driver's seat of a car in a fast food restaurant, with the defendant's hands on the steering wheel, the engine running, the headlights on, and two empty bottles of vodka, along with evidence that the defendant admitted drinking prior to driving to the restaurant, was sufficient to convict the defendant of driving under the influence in violation of O.C.G.A. § 40-6-391(a)(5). Lawson v. State, 313 Ga. App. 751, 722 S.E.2d 446 (2012).

Evidence was sufficient to convict the defendant of DUI less safe under O.C.G.A. § 40-6-391(a)(1), given that the defendant admitted to driving home from a bar where the defendant stopped to urinate, the defendant was just outside the vehicle, the engine was running, and no one else was around. Although the officer did not see the defendant driving, a jury could infer that the defendant had driven the car there. Pough v. State, 325 Ga. App. 547, 754 S.E.2d 129 (2014).

Appellant's conviction for vehicular homicide was affirmed because the verdict led to the strong inference that the appellant, while driving under the influence, killed the victim with a vehicle that the appellant was driving at a high rate of speed, and there was no other evidence that another car or anything else struck the victim with such force as to kill. Taylor v. State, 337 Ga. App. 486, 788 S.E.2d 97 (2016).

Stop based on erroneous facts.

- It was not error to admit evidence and statements showing intoxication, even though the stop of the defendant's automobile was erroneous due to an error on the part of the officer or the dispatcher who "ran the tag" and erroneously determined that the automobile was stolen. Cunningham v. State, 231 Ga. App. 420, 498 S.E.2d 590 (1998).

Delay in reading implied consent warnings.

- Trial court properly granted the defendant's motion to suppress the results of a chemical test of blood based on the undue delay between the arrest, after a traffic stop, and the reading of the implied consent warnings as: (1) the state trooper was presented with numerous opportunities to issue the warnings to the defendant, but did not; and (2) the trial court rejected the trooper's rationale for not reading the defendant the implied consent warnings at any other earlier opportunity, implicitly determining that the trooper's testimony was not credible. State v. Austell, 285 Ga. App. 18, 645 S.E.2d 550 (2007).

Evidence of prior DUI convictions.

- Trial court properly admitted evidence of two prior driving under the influence convictions when there were sufficient similarities between the incidents that the two prior incidents were admissible to show course of conduct and bent of mind. Simon v. State, 182 Ga. App. 210, 355 S.E.2d 120 (1987); Casoria v. State, 210 Ga. App. 269, 435 S.E.2d 678 (1993).

In a prosecution for driving under the influence of alcohol to the extent that the defendant was a less safe driver, the trial court did not err in admitting evidence of the defendant's prior per se DUI conviction to establish the defendant's bent of mind and course of conduct. Miller v. State, 250 Ga. App. 84, 550 S.E.2d 134 (2001).

Regardless of any slight variance of circumstances, evidence of the defendant's prior crime of driving with an unlawful blood alcohol content was properly admitted as similar transaction evidence to prove bent of mind or course of conduct in the defendant's subsequent prosecution for driving under the influence to the extent that it was less safe to drive in violation of O.C.G.A. § 40-6-391(a)(1) and for driving with an unlawful blood alcohol content in violation of § 40-6-391(a)(4). Moran v. State, 257 Ga. App. 236, 570 S.E.2d 673 (2002).

Because the defendant refused any testing of sobriety or blood alcohol content, an officer's testimony was sufficient to support a conviction for driving under the influence because the officer who arrested the defendant had stopped the defendant on a prior occasion as to which the defendant eventually admitted being less safe to drive so the officer was familiar with the defendant's appearance and demeanor when intoxicated, and could provide evidence sufficient to sustain a conviction and to provide probable cause to arrest the defendant. Berry v. State, 274 Ga. App. 831, 619 S.E.2d 339 (2005).

In a prosecution for vehicular homicide and driving under the influence (DUI), the trial court properly allowed evidence regarding the defendant's prior DUI as the defendant had pled guilty to that offense, the blood test results appeared on the uniform traffic citation, a certified copy of the accusation and plea was entered into evidence, and an officer testified that the defendant was the person arrested on that charge. Hurston v. State, 278 Ga. App. 472, 629 S.E.2d 18 (2006).

Defendant's prior driving under the influence (DUI) convictions were properly admitted as similar transaction evidence; not only was the evidence relevant for the purpose of showing the defendant's bent of mind and course of conduct on the night in question, but the prior DUI offenses were sufficiently similar to the defendant's current offense to be admissible. The state's evidence showed that all of the offenses occurred near midnight and at similar locations, that the defendant made similar statements to officers on each occasion, and that the indicia of intoxication were similar in each case including the strong odor of alcohol, slurred speech, and bloodshot eyes. Gamble v. State, 283 Ga. App. 326, 641 S.E.2d 556 (2007).

In a less safe DUI case, the state made the required showing for similar transaction evidence under Ga. Unif. Super. Ct. R. 31.3(B) by stating the nature of the evidence and asking that the evidence be admitted to show the defendant's bent of mind and course of conduct, which were proper purposes for allowing similar transaction evidence in less safe DUI cases. Steele v. State, 306 Ga. App. 870, 703 S.E.2d 5 (2010).

Defendant's conviction for driving under the influence (DUI) and other crimes was affirmed because the defendant's prior DUI conviction was properly admitted as the conviction was relevant to the issue of the defendant's knowledge of the consequences of both consenting to and refusing the tests, and its probative value outweighed any prejudice. Kim v. State, 337 Ga. App. 155, 786 S.E.2d 532 (2016).

In a driving under the influence (DUI) per se case, the defendant's prior DUI conviction was improperly admitted to show intent as the probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the jury could infer intent from the defendant's act of driving after admittedly consuming alcohol without considering the prior DUI, and there was a danger of interjecting unfair prejudice at trial; however, admission of that evidence was harmless as the direct evidence of the defendant's guilt for the DUI-per se charge was overwhelming as the defendant admitted to consuming alcohol, and the breath tests showed the defendant's blood alcohol content was substantially in excess of 0.08 grams. Jones v. State, 301 Ga. 544, 802 S.E.2d 234 (2017).

After the defendant was arrested for driving under the influence (DUI) and refused to submit to a state administered breath test, the state's motion to introduce evidence of other DUI violations was improperly denied as the danger of undue prejudice did not substantially outweigh the probative value of the evidence of other occasions when the defendant drove under the influence because the state demonstrated the state's prosecutorial need for the extrinsic act evidence; the close proximity in time between the three prior DUI arrests and the charged offense; and the overall similarity between the three prior arrests and the current charge, especially with regard to the defendant's experiences with the requested state administered tests. State v. Voyles, 345 Ga. App. 634, 814 S.E.2d 767 (2018).

Evidence of defendant's reputation for sobriety was irrelevant to the charge of driving under the influence. King v. State, 205 Ga. App. 825, 423 S.E.2d 429, cert. denied, 205 Ga. App. 900, 423 S.E.2d 429 (1992).

State need not prove defendant was drunk when driving.

- It was not necessary that the state prove that the defendant was drunk when driving but rather that the state prove beyond a reasonable doubt that the defendant was under the influence of alcohol so as to make it less safe for the defendant to operate a motor vehicle. Anderson v. State, 203 Ga. App. 118, 416 S.E.2d 309, cert. denied, 203 Ga. App. 905, 416 S.E.2d 309 (1992).

Evidence supporting citation.

- Even though the citation charging the defendant with driving under the influence to the extent it was less safe to drive contained a reference to the defendant's breath test result, the state was not required to prove the test result since it was not a part of the formal charge. Tomko v. State, 233 Ga. App. 20, 503 S.E.2d 300 (1998).

True test of the basis of conviction of driving while under the influence of intoxicants was when it was shown beyond a reasonable doubt that it was less safe for such person to operate a motor vehicle than it would be if the person were not so affected. Turner v. State, 95 Ga. App. 157, 97 S.E.2d 348 (1957) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

When evidence supported a guilty verdict under either paragraph (a)(1) or (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391, the state was not required to proceed under one paragraph or the other nor was the jury required to disclose the paragraph on which the jury based the jury's verdict. Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986).

Photograph of defendant taken shortly after the defendant's arrest was admissible when the defendant's condition vis-a-vis alcohol influence was an issue and the defendant's physical appearance was some evidence in the case. Farmer v. State, 180 Ga. App. 720, 350 S.E.2d 583 (1986).

Police officers' opinion testimony that the defendant was under the influence of alcohol to the extent that the defendant was rendered a less safe driver was admissible. Chance v. State, 193 Ga. App. 242, 387 S.E.2d 437 (1989).

Police officer who stopped defendant at a supervised roadblock was competent to give the officer's opinion that the defendant's condition rendered the defendant a less safe driver, even though the officer had not observed the defendant's driving. Waits v. State, 232 Ga. App. 357, 501 S.E.2d 870 (1998).

Because an officer gave an opinion that the defendant was driving under the influence (DUI) after giving an extensive outline of the officer's years of DUI training and experience and of the officer's observations of the defendant, the opinion did not impermissibly invade the jury's province. Karafiat v. State, 290 Ga. App. 15, 658 S.E.2d 801 (2008).

Evidence was sufficient to convict a defendant of DUI (less safe) in violation of O.C.G.A. § 40-6-391(a)(2) after the defendant ran a police officer off the road, did not maintain the defendant's lane of travel, and exhibited impairment on sobriety tests; a blood test showed positive results for lorazepam, zolpidem, and mirtazapine. Rivera v. State, 309 Ga. App. 544, 710 S.E.2d 694 (2011).

In the defendant's DUI trial, the state trooper who stopped the defendant was permitted to give the trooper's opinion regarding whether the defendant was impaired based on the trooper's observations and field sobriety tests; moreover, the trial court cautioned the jury that although the trooper was permitted to give the trooper's opinion, it was solely for the jury to determine whether the defendant was impaired to the extent the defendant was less safe to drive. Scott v. State, 332 Ga. App. 559, 774 S.E.2d 137 (2015).

Officer's testimony regarding authority to operate intoximeter.

- Police officer's testimony as to authority to operate an intoximeter was sufficient, notwithstanding the defendant's assertion that a directed verdict should have been granted to the defendant on the charge of driving under the influence because the document offered by the state failed to reveal the officer was certified to operate the machine. Williamson v. State, 194 Ga. App. 439, 390 S.E.2d 658 (1990).

Evidence of implied consent warning.

- When the state's only evidence concerning the implied consent warning was the deputy's conclusory statement that the deputy read a warning contained on a card, the state failed to meet the state's burden of proving compliance with the implied consent notice requirements. Miller v. State, 238 Ga. App. 61, 516 S.E.2d 838 (1999).

Admissibility of properly-con- ducted breathalyzer test.

- Admissibility of breathalyzer test results is controlled solely by O.C.G.A. § 40-6-392 so that, as long as a test has been conducted in compliance with that statute, a defendant is precluded from attacking the admissibility of the test based on a challenge to the scientific reliability of the result. Brannan v. State, 261 Ga. 128, 401 S.E.2d 269 (1991).

Sufficient evidence was offered to allow admission of the defendant's breath test in order to prove the defendant's violation of O.C.G.A. § 40-6-391(a)(5) since the oral testimony of the administering officer indicated the officer's qualifications and compliance with the approved methods of the test as required by O.C.G.A. § 40-6-392(a)(1)(A); thus, the court had an adequate foundation laid in order to admit the test results. Scara v. State, 259 Ga. App. 510, 577 S.E.2d 796 (2003).

Trial court properly denied a defendant's motion to suppress the results of the breath test administered with regard to the defendant's conviction for driving with an unlawful alcohol concentration because the defendant's statement that "I will take a blood test" was not a request for an independent test under the implied consent law but was an attempt to designate which test would be administered by the state, which was not an option for the defendant; further, the officer's response to the defendant merely clarified the designation that the state-administered test would be a breath test and did not mislead the defendant regarding the defendant's right to have an independent chemical test. Anderton v. State, 283 Ga. App. 493, 642 S.E.2d 137 (2007).

Trial court properly denied defendant's motion to suppress the results of the defendant's breath test because the officer's reading of the implied consent notice was accurate, the officer asked whether defendant consented, the officer told the defendant to answer yes or no, and the officer's statement, that "as long as you continue to be cool and be cooperative, I'll make the process go by real quick for you," was not coercive or deceptively misleading and did not render the defendant incapable of making an informed decision about whether to submit to the breath test. Miller v. State, 317 Ga. App. 504, 731 S.E.2d 393 (2012).

Admissibility of other evidence obtained at roadblocks.

- In a prosecution for driving under the influence, evidence obtained at a roadblock set up to check for driver's licenses and intoxicated drivers was admissible because the roadblock was legitimate and the defendant's detention at the roadblock did not constitute an arbitrary, random stop or an unreasonable seizure. White v. State, 233 Ga. App. 276, 503 S.E.2d 891 (1998).

Roadblock failed to satisfy Fourth Amendment standard.

- Because the state failed to show that a police department's checkpoint program had an appropriate primary purpose other than ordinary crime control when viewed at the programmatic level, the checkpoint violated the Fourth Amendment, and the defendant's DUI convictions were reversed. Charales v. State, 329 Ga. App. 533, 765 S.E.2d 701 (2014).

Suppression motion erroneously granted.

- Because a police officer possessed sufficient information regarding both the defendants via a police dispatcher, who was relaying information from a9-1-1 caller, and after signaling for the defendants to pull the vehicle over, the officer observed both the defendants switch places, the officer observed sufficient and particular facts to investigate both men for driving under the influence; hence, the trial court erroneously ordered suppression of the evidence obtained from the resulting traffic stop. State v. Bingham, 283 Ga. App. 468, 641 S.E.2d 663 (2007).

Order granting the defendant's motion to suppress evidence at the defendant's trial for DUI-less safe driving, O.C.G.A. § 40-6-391(a)(1), was error because, contrary to the trial court's findings, the arresting officer's observations of the defendant's odor of alcohol, bloodshot and watery eyes, unsteadiness, and the defendant's positive alco-sensor test, were sufficient to support a finding of impairment; the officer also testified that, based on the officer's observations and experience, the officer was of the opinion that the defendant was a less safe driver, which was evidence showing that the defendant was a less safe driver. The state was not required to prove that the defendant committed an unsafe act in order to show it was less safe for the defendant to drive. State v. Burke, 298 Ga. App. 621, 680 S.E.2d 658 (2009).

Suppression motion properly granted.

- Because the evidence sufficiently showed that the defendant's mental condition was clearly vulnerable, and that the defendant: (1) could not read; (2) had to be forcibly restrained while the consent form was initially being read; (3) was weeping while the remainder of the form was read; and (4) never actually signed the consent form, the trial court properly found that any consent to submit to blood and urine tests was not freely and voluntarily given. Moreover, the proper standard of review on appeal, based on the fact that credibility was an issue, was not a de novo standard, but a clearly erroneous standard. State v. Stephens, 289 Ga. App. 167, 657 S.E.2d 18 (2008).

Suppression motion properly denied.

- In a DUI prosecution, the trial court did not err in denying the defendant's motion to suppress the results of a blood test as the notice given to the defendant by a state trooper under the implied consent law, O.C.G.A. § 40-5-67.1(a), was sufficiently accurate to permit the defendant to make an informed decision about whether to consent to testing, and the evidence failed to show that the defendant requested an independent test. Collins v. State, 290 Ga. App. 418, 659 S.E.2d 818 (2008).

With regard to a defendant's conviction for driving under the influence and other related crimes, the trial court properly denied the defendant's motion to suppress field sobriety test results, which the defendant based on being unreasonably detained without receiving the Miranda warnings, as the defendant was not under arrest and the defendant's detainment while waiting for a second officer to arrive at the scene was not unreasonable nor unnecessary since the first officer who initiated the stop after observing the defendant driving erratically had a suspect in the patrol car. The court also found that the second officer timely gave the defendant the implied consent warnings after the defendant was arrested. Thomas v. State, 294 Ga. App. 108, 668 S.E.2d 540 (2008).

With regard to a defendant's convictions for driving under the influence and child endangerment, the trial court properly denied the defendant's motion to suppress evidence of the defendant's intoxication as an officer's insistence that the defendant return outside the defendant's day care facility after bringing children back in after arriving with the children in a vehicle was justified by a reasonable suspicion of criminal activity based on the defendant's failure to call the police regarding a domestic violence incident that occurred on the premises earlier, which indicated that the defendant may have engaged in reckless conduct. Upon talking to the defendant, the officer noticed that the defendant's eyes were glassy and that the defendant was in an overly emotional state, which gave additional justification to the officer to suspect that the defendant was intoxicated. Johnson v. State, 299 Ga. App. 474, 682 S.E.2d 601 (2009).

Trial court did not err in denying the defendant's motion to suppress and motion in limine to exclude the defendant's field sobriety test results because the implied consent warning was timely given; a HEAT Unit officer gave the defendant the warning immediately after the defendant's arrest. Waters v. State, 306 Ga. App. 114, 701 S.E.2d 550 (2010).

Trial court did not err in denying the defendant's motion to suppress the results of a blood-alcohol-content test that was obtained via the seizure of the defendant's blood samples and pursuant to a search warrant because the warrant was narrowly drafted to seek only the blood samples and medical records from the hospital where the defendant was treated on the night of the accident; even if the warrant could be construed as authorizing a broader seizure of all of the defendant's medical records instead of only those relevant to the defendant's treatment related to the accident, the defendant failed to show that any such broader seizure occurred and, thus, failed to show any harm. Jones v. State, 313 Ga. App. 590, 722 S.E.2d 202 (2012).

In a DUI per se case, the trial court did not err in denying the defendant's motion to suppress statements the defendant made to police because the defendant was not in custody when the defendant made the statements; thus the statements were not taken in violation of Miranda; there was no evidence of flashing police lights, guns drawn, or other officers present; and the defendant was standing in a parking lot. Jacobs v. State, 338 Ga. App. 743, 791 S.E.2d 844 (2016).

Identification of driver.

- Although a passenger in the defendant's truck claimed that the passenger was the driver in a single vehicle accident, based on a positive identification of the defendant as the driver from a witness, the testimony from the arresting officer about the defendant's injuries, which were consistent with a driver's, and a taped conversation between the defendant and the passenger while they were in the officer's cruiser, there was sufficient evidence upon which any rational trier of fact could have based a verdict of guilty as to the charges; in the conversation in the officer's cruiser, the defendant told the passenger that the passenger should say that the passenger was driving because the defendant would not spend another night in jail, and also said that the passenger should have been driving when the wreck occurred. Becker v. State, 280 Ga. App. 97, 633 S.E.2d 436 (2006).

Failure to produce evidence of marijuana usage.

- Defendant's conviction for driving under the influence was reversed since the state's failure to produce evidence of marijuana usage in a "written scientific report" left the defense counsel at a huge disadvantage in trying to cross-examine the state's witness as to the implications of test results and the formation of the witness's opinion based upon the results. Durden v. State, 187 Ga. App. 154, 369 S.E.2d 764, aff'd, 258 Ga. 720, 375 S.E.2d 610 (1988).

Combined alcohol and drugs conviction.

- Defendant who was acquitted of driving under the influence of drugs, and as to whom the court directed a verdict of "not guilty" of driving under the influence of alcohol, could nonetheless be found guilty of driving under the combined influence of drugs and alcohol, arising from the same incident, since the arresting officer testified that the defendant refused to submit to a chemical test of defendant's blood, defendant had glassy and bloodshot eyes, and that the defendant tested positive for alcohol on the alco-sensor and for drugs using two field sobriety eye tests. Mendoza v. State, 196 Ga. App. 627, 396 S.E.2d 576 (1990).

Golf cart was a vehicle.

- Because: (1) O.C.G.A. § 40-6-391(a), by the statute's plain language, applied to any moving vehicle, and, a golf cart was a "vehicle" within the meaning of O.C.G.A. § 40-1-1(75); (2) the defendant stipulated at trial to driving the golf cart in Fayette County, making such a "moving vehicle" within the scope of O.C.G.A. § 40-6-391(a), and to being under the influence of alcohol while doing so; and (3) under O.C.G.A. § 40-6-3(a)(3), the provisions of § 40-6-391 applied anywhere in Georgia, whether on a street, highway, or private property, the defendant's DUI conviction was upheld on appeal. Simmons v. State, 281 Ga. App. 252, 635 S.E.2d 849 (2006).

Presence of cocaine in blood supported conviction.

- Evidence that while driving a truck the defendant was involved in an accident and that a blood test revealed a metabolite of cocaine in the defendant's blood was sufficient to support the defendant's conviction for driving under the influence. Holland v. State, 329 Ga. App. 103, 763 S.E.2d 894 (2014).

Evidence sufficient to support conviction of driving under influence.

- See Lawrence v. State, 157 Ga. App. 264, 277 S.E.2d 60 (1981); Fuller v. State, 166 Ga. App. 734, 305 S.E.2d 463 (1983); Fuller v. State, 169 Ga. App. 468, 313 S.E.2d 745 (1984); Collins v. State, 177 Ga. App. 758, 341 S.E.2d 288 (1986); Pryor v. State, 182 Ga. App. 79, 354 S.E.2d 690 (1987); Daugherty v. State, 182 Ga. App. 730, 356 S.E.2d 902 (1987); Schofill v. State, 183 Ga. App. 251, 358 S.E.2d 651 (1987); Flanders v. State, 188 Ga. App. 98, 371 S.E.2d 918 (1988); Grizzard v. State, 188 Ga. App. 303, 372 S.E.2d 683 (1988); Campbell v. State, 189 Ga. App. 303, 375 S.E.2d 654 (1988); Clark v. State, 192 Ga. App. 718, 386 S.E.2d 379 (1989); Rustin v. State, 192 Ga. App. 775, 386 S.E.2d 535 (1989); Ussery v. State, 195 Ga. App. 394, 393 S.E.2d 522 (1990); Stanley v. State, 195 Ga. App. 706, 394 S.E.2d 785 (1990); Mickey v. State, 196 Ga. App. 895, 397 S.E.2d 148 (1990); Hudson v. State, 261 Ga. 414, 405 S.E.2d 495 (1991); Austin v. State, 200 Ga. App. 91, 406 S.E.2d 500, cert. denied, 200 Ga. App. 895, 406 S.E.2d 500 (1991); Mullis v. State, 201 Ga. App. 75, 410 S.E.2d 182 (1991); Laminack v. State, 201 Ga. App. 663, 411 S.E.2d 895 (1991); Gordon County Farms v. Edwards, 204 Ga. App. 770, 420 S.E.2d 607 (1992); Bryant v. State, 204 Ga. App. 856, 420 S.E.2d 801 (1992); Butts v. City of Peachtree City, 205 Ga. App. 492, 422 S.E.2d 909 (1992); Conner v. State, 205 Ga. App. 564, 422 S.E.2d 872 (1992); Lanier v. City of Manchester, 205 Ga. App. 597, 423 S.E.2d 30 (1992); King v. State, 205 Ga. App. 825, 423 S.E.2d 429 (1992); Rylee v. State, 210 Ga. App. 314, 436 S.E.2d 52 (1993); Harris v. State, 210 Ga. App. 366, 436 S.E.2d 231 (1993); Moon v. State, 211 Ga. App. 559, 439 S.E.2d 559 (1993); Schoicket v. State, 211 Ga. App. 636, 440 S.E.2d 65 (1994); Marsh v. State, 211 Ga. App. 751, 440 S.E.2d 478 (1994); Fouche v. State, 211 Ga. App. 875, 440 S.E.2d 758 (1994); Leigner v. State, 213 Ga. App. 871, 446 S.E.2d 770 (1994); Shelton v. State, 214 Ga. App. 166, 447 S.E.2d 115 (1994); Lewis v. State, 214 Ga. App. 830, 449 S.E.2d 535 (1994); Crawford v. City of Forest Park, 215 Ga. App. 234, 450 S.E.2d 237 (1994); Shelton v. State, 216 Ga. App. 634, 455 S.E.2d 304 (1995); Parrish v. State, 216 Ga. App. 832, 456 S.E.2d 283 (1995); Torrance v. State, 217 Ga. App. 562, 458 S.E.2d 495 (1995); Keef v. State, 220 Ga. App. 134, 469 S.E.2d 318 (1996); Lee v. State, 222 Ga. App. 389, 474 S.E.2d 281 (1996); Hill v. State, 223 Ga. App. 493, 478 S.E.2d 406 (1996); Burrell v. State, 225 Ga. App. 264, 483 S.E.2d 679 (1997); Tanner v. State, 225 Ga. App. 702, 484 S.E.2d 766 (1997); McClain v. State, 226 Ga. App. 714, 487 S.E.2d 471 (1997); Apperson v. State, 225 Ga. App. 804, 484 S.E.2d 739 (1997); Kovacs v. State, 227 Ga. App. 870, 490 S.E.2d 539 (1997); Piast v. State, 230 Ga. App. 222, 495 S.E.2d 875 (1998); Reynolds v. State, 230 Ga. App. 458, 496 S.E.2d 474 (1998); Horne v. State, 237 Ga. App. 844, 517 S.E.2d 74 (1999); Davidson v. State, 237 Ga. App. 580, 516 S.E.2d 90 (1999); Walker v. State, 239 Ga. App. 831, 521 S.E.2d 861 (1999); O'Brien v. State, 242 Ga. App. 344, 529 S.E.2d 657 (2000); Vaughn v. State, 243 Ga. App. 816, 534 S.E.2d 513 (2000); Duvall v. State, 250 Ga. App. 87, 550 S.E.2d 479 (2001); Slinkard v. State, 259 Ga. App. 755, 577 S.E.2d 825 (2003); In the Interest of A.A., 265 Ga. App. 369, 593 S.E.2d 891 (2004).

Under the evidence, the jury was authorized to find that the defendant was operating the defendant's motor truck on a public street while under the influence of an intoxicating liquor. Langford v. State, 69 Ga. App. 619, 26 S.E.2d 385 (1943) (decided under former Code 1933, § 68-307).

Appeals court found the following facts indicated there was sufficient evidence to convict a defendant driver of driving under the influence (DUI) since the defendant: (1) after being stopped for going through a red light, told the officer the defendant was talking on a cell phone; (2) had a flushed face and smelled like beer; (3) could not say certain sequences of the alphabet according to instructions; (4) admitted to drinking beer; (5) refused to submit to field sobriety tests but had a slurred voice when telling the officer why; and (6) had a cup of beer in the car. Lanwehr v. State, 265 Ga. App. 359, 593 S.E.2d 897 (2004).

Evidence was sufficient to support conviction of per se driving under the influence under O.C.G.A. § 40-6-391(a)(5) when, inter alia, an officer saw the defendant's truck weaving and straddling two lanes, the defendant smelled of an alcoholic beverage, the defendant's speech was slurred, the defendant's eyes were red and bloodshot, when the defendant failed three field sobriety tests, and when the blood alcohol breath tests showed alcohol concentrations of .164 and .156; the fact that the jury acquitted the defendant of driving under the influence to the extent that it is less safe for a person to drive and improper lane change did not invalidate the verdict since Georgia did not recognize an inconsistent verdict rule. Smith v. State, 265 Ga. App. 756, 596 S.E.2d 13 (2004).

Sufficient evidence supported convictions of driving under the influence of alcohol under the former version of O.C.G.A. § 40-6-391 to the extent that the defendant was less safe to drive and driving while having an alcohol concentration of 0.10 grams or more when an officer stopped the defendant after seeing the defendant closely following another car on a highway and weaving, when the defendant had an odor of alcohol, slurred speech, bloodshot eyes, and admitted that the defendant had three alcoholic beverages that night, when an alco-sensor indicated positive for alcohol, and breath tests registered .114 and .101 grams of alcohol in the defendant's blood; evidence supporting a per se charge was not insufficient simply because the machine's margin of error brought a breathalyzer test result below the legal limit for blood alcohol content. Totino v. State, 266 Ga. App. 265, 596 S.E.2d 749 (2004).

There was sufficient evidence to support the defendant's convictions for driving under the influence of alcohol and obstructing a police officer as the police corporal observed the defendant staggering around the defendant's vehicle, which was parked in the middle of a public street, and driving in violation of the traffic laws, and, after the defendant was stopped, the defendant had a strong odor of alcohol on the defendant's breath, slurred speech, and gave a positive result for consumption of alcohol on the alco-sensor. Monas v. State, 270 Ga. App. 50, 606 S.E.2d 80 (2004).

Defendant's conviction for violation of O.C.G.A. § 40-6-391(a)(1) was supported by sufficient evidence as the state was not required to prove that the defendant committed an unsafe act, but rather, the state needed only to prove beyond a reasonable doubt that the defendant was under the influence of alcohol to the degree that rendered the defendant a less safe driver; the trooper who observed the defendant testified that the trooper believed the defendant was a less than safe driver, based on the defendant's condition, and there was also testimony as to the defendant's blood alcohol level and how it affected the defendant's reaction time. Overton v. State, 270 Ga. App. 285, 606 S.E.2d 306 (2004).

Motion to dismiss "driving under the influence" charges was properly denied because the defendant was not charged with an offense under O.C.G.A. § 40-6-391(a)(4), but was charged with violations under §§ 40-6-391(a)(1) and40-6-391(a)(2); while the defendant's drug test results were suppressed, there was evidence to support conviction under § 40-6-391(a)(1). Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

Evidence supported the defendant's conviction for DUI as a less safe driver, in violation of O.C.G.A. § 40-6-391(a)(1), after a police officer observed the defendant's vehicle traveling without the vehicle's headlights on at night, the defendant failed to heed the officer's hand motions, the defendant drove through a red light, and the defendant failed to yield to oncoming traffic, and upon being stopped, the officer smelled alcohol on the defendant, who refused to take voluntary field sobriety tests or the required state breath test. Drogan v. State, 272 Ga. App. 645, 613 S.E.2d 195 (2005).

Evidence supported the defendant's driving under the influence conviction because: (1) the defendant's erratic, dangerous behavior more than showed an impaired state; (2) the defendant's refusal to submit to field sobriety tests or to state-administered chemical tests was circumstantial evidence of intoxication; and (3) a police officer who observed the defendant testified that, in the officer's opinion, the defendant was intoxicated such that it was less safe to drive. Jones v. State, 273 Ga. App. 192, 614 S.E.2d 820 (2005).

In a prosecution for vehicular homicide based on the defendant's impaired driving, the fact that the defendant's expert was unable to conclude from the state's testing whether the defendant was impaired did not mean the state failed to prove the defendant's impairment as the state's expert testified that use of the drugs found in the defendant's system after an accident would have made the defendant a less safe driver so a jury could find beyond a reasonable doubt that the defendant was impaired. McClure v. State, 273 Ga. App. 751, 615 S.E.2d 856 (2005).

Evidence supported the defendant's conviction for driving under the influence of alcohol-less safe driver because the defendant drove erratically, had a strong odor of alcohol, had glassy eyes, had slurred speech, and repeatedly failed to respond to questions posed by the officer; the defendant also refused to submit to state-administered chemical testing after being read the implied consent warning. Alewine v. State, 273 Ga. App. 629, 616 S.E.2d 472 (2005).

Observations by an officer that the defendant's vehicle was weaving in traffic, that portions of the car actually crossed over into the adjacent lane of traffic, that there was an odor of an alcoholic beverage and that the defendant had red, watery eyes, and that the defendant failed three sobriety tests provided sufficient evidence to support a conviction of driving under the influence as a less safe driver. Kuehne v. State, 274 Ga. App. 668, 618 S.E.2d 702 (2005).

Evidence was sufficient to support the defendant's convictions for driving under the influence, vehicular homicide, reckless driving, and other charges as the evidence showed that the defendant was caught trying to take merchandise from a store, and then struck and killed the victim as the defendant left the store parking lot and turned on to a highway at a time when the defendant admittedly was under the influence of drugs. Cromartie v. State, 275 Ga. App. 209, 620 S.E.2d 413 (2005).

Evidence was sufficient to convict a defendant of driving under the influence of alcohol to the extent it was less safe for the defendant to drive in violation of O.C.G.A. § 40-6-391(a)(1) based on the defendant's indicia of intoxication, the defendant's driving, the defendant's refusal to submit to sobriety tests, and the officer's opinion that the defendant was intoxicated to the extent that the defendant was a less safe driver. Hoffman v. State, 275 Ga. App. 356, 620 S.E.2d 598 (2005).

Sufficient evidence supported the defendant's conviction of driving under the influence to the extent that the defendant was less safe in violation of O.C.G.A. § 40-6-391(a)(1); the defendant was weaving down a street when the defendant struck a parked car and witnesses, including a police officer, testified that the defendant exhibited an indicia of intoxication. Dotson v. State, 276 Ga. App. 418, 623 S.E.2d 252 (2005).

Evidence was sufficient to support a conviction for driving under the influence of alcohol despite the defendant's contention that the defendant was not driving the car when the officer saw the car speeding; the jury was authorized to reject that testimony in favor of that offered by the state. Morgan v. State, 277 Ga. App. 670, 627 S.E.2d 413 (2006).

Driving under the influence of marijuana conviction was upheld on appeal as: (1) the court rejected the defendant's claim that the conviction had to be reversed merely because the state produced no evidence of marijuana in the defendant's system, given that the refusal to submit to a test of urine or blood created an inference that these tests would have shown the presence of a prohibited substance; and (2) the evidence, when combined with the defendant's poor performance on the field sobriety tests, bloodshot eyes, unsteadiness while exiting the car, and the odor of marijuana, adequately supported this conviction; moreover, the fact that the trial court found the defendant not guilty of a marijuana possession charge did not require a different result as Georgia abolished the inconsistent verdict rule. Graves v. State, 280 Ga. App. 420, 634 S.E.2d 186 (2006).

Convictions against the defendant for driving under the influence of alcohol to the extent that it was less safe for the defendant to drive and possession of an open container of alcohol in violation of O.C.G.A. §§ 40-6-391(a)(1) and40-6-253(b)(1)(B) were supported by sufficient evidence when police officers who responded to a call observed the defendant driving into a parking lot with a damaged car, the defendant screamed and cried when asked what had happened and if the defendant was okay, there was a strong odor of alcohol, the defendant had bloodshot and watery eyes, admitted to having had "too many," and the defendant refused to take field sobriety tests or a chemical breath test; further, a search of the vehicle after the defendant's arrest revealed open bottles of wine cooler. Crenshaw v. State, 280 Ga. App. 568, 634 S.E.2d 520 (2006).

After a review of the evidence surrounding the auto accident which the defendant caused while under the influence of methamphetamine, with the defendant's four-year-old son as a passenger, and in which the defendant rear-ended the driver in front of the defendant causing that driver to become paralyzed from the neck down, when coupled with the testimony of two law enforcement officers who were at the scene and described the defendant's erratic behavior after the collision, the defendant's serious injury by vehicle, driving under the influence of methamphetamine, and endangering a child by driving under the influence convictions were supported by the evidence. Duncan v. State, 281 Ga. App. 270, 635 S.E.2d 875 (2006).

Even in the absence of forensic evidence as to a defendant's blood alcohol concentration, the defendant's convictions for reckless driving and driving under the influence of alcohol to the extent that it was less safe to drive were supported by evidence of the defendant's erratic driving, including following another vehicle too closely, and of the defendant's slurred speech, staggering gait, and flight of irrational belligerence, combined with the detection of a strong order of alcohol emanating from the defendant; the witness testimony was certainly sufficient to authorize any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the charged offenses. Rutland v. State, 282 Ga. App. 728, 639 S.E.2d 628 (2006).

There was sufficient evidence to find the defendant guilty of driving under the influence of alcohol to the extent that the defendant was a less safe driver; the officer who stopped the defendant at a roadblock testified that the defendant had a strong odor of alcohol about the defendant, that the defendant's eyes were bloodshot, that the defendant was slack-jawed, and that the defendant's speech was slurred; the defendant told the officer that the defendant had consumed two alcoholic drinks. Gamble v. State, 283 Ga. App. 326, 641 S.E.2d 556 (2007).

Although defense counsel in a DUI case under O.C.G.A. § 40-6-391(a)(1) was ineffective in tendering a report into evidence that contained the otherwise inadmissible numerical result of an alco-sensor test, the defendant was not prejudiced; evidence of guilt, including the fact that the defendant was passed out behind the wheel in a left turn lane with the car in gear, the fact that the defendant had to be roused from sleep and was disoriented, the defendant's admission to drinking, and the defendant's failing a field sobriety test was overwhelming. Hopkins v. State, 283 Ga. App. 654, 642 S.E.2d 356 (2007).

Trial court did not err in denying the defendant's motion to suppress evidence seized by a state trooper who was lawfully investigating a serious injury accident the defendant was involved in as evidence the trooper found, specifically, some steel wool and prescription drugs, when coupled with other information the trooper possessed concerning the nature and cause of the crash, provided sufficient probable cause for the trooper to believe that the defendant was driving under the influence; further, the appeals court agreed that the evidence would have been inevitably discovered. Cunningham v. State, 284 Ga. App. 739, 644 S.E.2d 878 (2007).

Deputy had probable cause to arrest a defendant for DUI independent of field sobriety tests; when the deputy arrived on the scene and before the deputy conducted the tests, the deputy was told by another officer that the defendant had been driving on the wrong side of the road and had been drinking, the deputy noticed that the defendant was unsteady, nervous, and smelled strongly of alcohol, and the defendant admitted to having been drinking two or three hours before. Tune v. State, 286 Ga. App. 32, 648 S.E.2d 423 (2007).

Defendant's DUI conviction was upheld on appeal based on the investigating officer's testimony that the defendant: (1) sped through a residential area; (2) crossed the centerline in the roadway; (3) drove on the wrong side of the road; (4) drifted in and out of a marked lane of traffic; (5) smelled strongly of alcohol; (6) had a red face, bloodshot and watery eyes, and slurred speech; (7) was unsteady; and (8) failed three field sobriety tests. McDevitt v. State, 286 Ga. App. 120, 648 S.E.2d 481 (2007).

Given the arresting officer's observations, the defendant's failure to maintain a lane of driving, the evidence presented surrounding the defendant's arrest, and the defendant's failed field sobriety and breath tests, sufficient evidence was presented to support the DUI convictions; thus, a new trial based on the insufficiency of the evidence was properly denied. Trull v. State, 286 Ga. App. 441, 649 S.E.2d 571 (2007).

Defendant's DUI conviction was upheld on appeal as the evidence of guilt, specifically: smelling strongly of alcohol, having trouble walking and speaking, fumbling with a wallet, a half-empty can of beer in the defendant's truck, hiding the truck's keys and a license in the bathroom, the officer having just seen the defendant driving, despite the defendant's claim to the contrary, and the multiple similar transactions, was overwhelming. Caraway v. State, 286 Ga. App. 592, 649 S.E.2d 758 (2007), cert. denied, No. S07C1736, 2007 Ga. LEXIS 686 (Ga. 2007).

Sufficient evidence existed to support a defendant's conviction for DUI when there was evidence that the defendant had been drinking via an officer's observation of the defendant running a red light, speeding, and failing to maintain the lane, and the defendant refused to submit to an alco-sensor test; further, evidence that a strong smell of alcohol came from the defendant and that four field sobriety tests were conducted indicated that the defendant was impaired. Horne v. State, 286 Ga. App. 712, 649 S.E.2d 889 (2007), cert. denied, No. S07C1912, 2007 Ga. LEXIS 744 (Ga. 2007).

State's evidence, both direct and circumstantial, was sufficient to uphold the defendant's conviction of vehicular homicide and that the defendant violated O.C.G.A. § 40-6-391 by driving while under the influence of alcohol as the evidence established the following: testimony of eyewitnesses and of the trooper who investigated the accident established that the defendant was driving erratically and dangerously prior to the collision; the jury was entitled to consider the defendant's admitted flight from the scene as evidence of the defendant's guilt; the defendant admitted that there were two open bottles of liquor in the defendant's car prior to the fatal crash and that the defendant had an alcohol problem on that day. Merritt v. State, 288 Ga. App. 89, 653 S.E.2d 368 (2007).

Defendant's conviction for driving under the influence of alcohol to the extent that it was less safe to drive was supported by the defendant's driving 70 miles per hour in a 45-miles-per-hour zone; an officer's description of the defendant's odor of alcohol, bloodshot eyes, and lack of balance; the defendant's performance on field sobriety and breath tests; the defendant's testimony that the defendant drank six alcoholic drinks over the evening; and the officer's opinion that the defendant was under the influence. Yglesia v. State, 288 Ga. App. 217, 653 S.E.2d 823 (2007).

Trial court properly denied a motion to suppress the defendant's breath test results as the officer that stopped the defendant had probable cause to arrest based on: (1) the defendant's admission to consuming alcohol; (2) the arresting officer's detection of alcohol on both the defendant's breath and the defendant's person; and (3) the fact that impaired driving ability was not an element under O.C.G.A. § 40-6-391(k)(1). Dodds v. State, 288 Ga. App. 231, 653 S.E.2d 828 (2007), cert. denied, No. S08C0518, 2008 Ga. LEXIS 335 (Ga. 2008).

Defendant's bloodshot, watery eyes, admission to drinking, the positive result from an alco-sensor test, and an officer's smelling alcohol on the defendant's breath provided probable cause to arrest the defendant for driving under the influence (DUI). Moreover, it appeared that the arrest had been not for DUI (less safe) but for DUI (underage per se) for which the officer had ample probable cause in light of the above factors as well as the low per se limit and the officer's extensive experience in this area. Kellogg v. State, 288 Ga. App. 265, 653 S.E.2d 841 (2007), cert. denied, No. S08C0458, 2008 Ga. LEXIS 229 (Ga. 2008).

Trial court properly convicted a defendant of driving under the influence, less safe, in violation of O.C.G.A. § 40-6-391(a)(1), after a bench trial because the evidence showed that: (1) an officer saw the defendant drunk earlier in the evening while responding to a dispute between neighbors; (2) the defendant admitted to drinking; and (3) the defendant admitted to driving the defendant's vehicle while drunk from the defendant's home to a lake home. Any error in the charging instrument was deemed waived on appeal as the defendant should have addressed any purported error by a special demurrer and, likewise, the defendant failed to file a motion to suppress challenging the officers' entry into the defendant's dwelling without authority; thus, that issue was deemed waived. Pruitt v. State, 289 Ga. App. 307, 656 S.E.2d 920 (2008).

Sufficient evidence supported convictions for driving under the influence of drugs to the extent of being a less safe driver under O.C.G.A. § 40-6-391(a)(2) in that: (1) an officer saw the defendant's vehicle weaving, tailgating, and going over 80 miles per hour; (2) the defendant spoke slowly, was unsteady, had bloodshot, glassy eyes, and performed poorly on field sobriety tests; and (3) the defendant's urine tested positive for cocaine, marijuana, and six prescription drugs. Cornwell v. State, 283 Ga. 247, 657 S.E.2d 195 (2008).

There was sufficient evidence supporting convictions of driving under the influence of alcohol to the extent that it was less safe to drive and of driving with an unlawful blood-alcohol concentration. Although the defendant claimed that the defendant drank only while the defendant's truck was parked, officers found no containers of alcohol in the truck, and the testimony as to the manner in which the truck was parked authorized a finding that the defendant had been driving the truck erratically; furthermore, a test showing the defendant's blood alcohol level of 0.198 was administered within three hours of the time the defendant testified that the defendant began drinking. Dorris v. State, 291 Ga. App. 716, 662 S.E.2d 804 (2008).

Evidence that a defendant's vehicle left the road, traversed a drainage ditch, and became lodged between two trees, along with evidence that the defendant was unsteady on the defendant's feet, had extremely dilated pupils, had a strong odor of alcohol about the defendant's person, and admitted to having two beers was sufficient to support the defendant's convictions for failure to maintain a lane and driving under the influence of alcohol to the extent it was less safe for the defendant to drive. Chancellor v. State, 284 Ga. 66, 663 S.E.2d 203 (2008).

Sufficient evidence supported defendant's conviction for driving under the influence of an intoxicating substance since the evidence established that the defendant purchased two cans of an aerosol computer cleaning product and approximately nine minutes later drove a vehicle over a curb and a sidewalk, through the grass in a straight line, and across a street, striking a mailbox and a car before coming to rest in an open field. When an officer approached the defendant and a passenger, the officer immediately noticed symptoms that, based on the officer's training and experience, were consistent with inhalant use. Castaneda v. State, 292 Ga. App. 390, 664 S.E.2d 803 (2008).

Testimony from the driver of a van struck by a defendant's vehicle, combined with the defendant's admission regarding drinking, the defendant's failed field sobriety tests, and a breath test that showed the defendant had a blood alcohol level of .146 was sufficient to support a jury's conviction of the defendant for driving under the influence of alcohol (less safe) under O.C.G.A. § 40-6-391(a)(1). Thrasher v. State, 292 Ga. App. 566, 666 S.E.2d 28 (2008).

Because a police officer observed the defendant make a turn even though the arrows indicating that turn remained red, the valid traffic stop was not impermissibly prolonged pending the arrival of a second officer due to the first officer's incapacity to smell; accordingly, the evidence was sufficient to sustain the defendant's conviction for driving under the influence and failing to obey a traffic control device under O.C.G.A. §§ 40-6-20 and40-6-391. Peterson v. State, 294 Ga. App. 128, 668 S.E.2d 544 (2008).

Evidence was sufficient to convict a defendant of DUI per se under O.C.G.A. § 40-6-391(a)(5) because as the defendant did not consume any alcohol between the time of the accident and the arrival of the police, after which a breath test revealed the defendant's blood alcohol content to be .245, the jury was authorized to find that the defendant's blood alcohol level was .08 or more when the defendant drove a van into the ditch. Reese v. State, 296 Ga. App. 186, 674 S.E.2d 68 (2009), overruled in part by Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376, (2015).

Because a police officer's actions, including reading the defendant the implied consent warnings in O.C.G.A. § 40-5-67.1(g)(2)(B) multiple times, were reasonable and the procedure utilized was fair, the results of a toxicology report, indicating that 0.24 milligrams per liter of benzoylecgonine, a metabolite of cocaine, was present in the defendant's blood was sufficient for the jury to find the defendant guilty of violating O.C.G.A. § 40-6-391(a)(6). Page v. State, 296 Ga. App. 431, 674 S.E.2d 654 (2009).

With regard to a defendant's convictions for improper lane change, serious injury by vehicle while driving under the influence, and misdemeanor obstruction of an officer, there was sufficient evidence to support the convictions. The conviction was supported by an officer's testimony that the defendant attempted to leave the scene several times, and the evidence of the defendant's vehicle passenger suffering a severe injury to the left eye. Wells v. State, 297 Ga. App. 153, 676 S.E.2d 821 (2009).

Evidence was sufficient to sustain convictions of driving under the influence (less safe and per se), and vehicular homicide as a result under circumstances in which the defendant admitted to drinking two beers on the morning of a fatal accident, the defendant was seen with beer that morning, the defendant was not aware whether the children in the defendant's vehicle were buckled in as was required by law, and the victim probably was not buckled in, the defendant had a .235 blood alcohol level shortly after the accident, the defendant smelled of the odor of alcohol, and the defendant was unable to control the defendant's automobile, all of which led to the death of a child; it was for the jury to decide the reasonableness of the hypotheses that the defendant drove off the road because of problems with the tires on the vehicle. Daniel v. State, 298 Ga. App. 245, 679 S.E.2d 811 (2009).

Conviction of driving under the influence of drugs to the extent it was less safe to drive, O.C.G.A. § 40-6-391(a)(2), was proper because the state was not required to present the results from scientific testing of blood or urine to prove a charge under § 40-6-391(a)(2); further, the defendant admitted to having smoked marijuana earlier that day, and an alcosensor test performed on the defendant was negative. Finally, the arresting officer testified that, based upon years of experience observing people who were under the influence of marijuana and all of the officer's observations in this case, it was the officer's opinion that the defendant was under the influence of marijuana to the extent that the defendant was a less safe driver. Richardson v. State, 299 Ga. App. 365, 682 S.E.2d 684 (2009).

Officer had reasonable suspicion to conduct field sobriety tests based on the smell of alcohol emanating from a defendant, the defendant's watery, bloodshot eyes, and the defendant's admission to drinking alcohol. The failure of three field sobriety tests supplied the officer with probable cause to arrest the defendant, and all of this evidence, along with the defendant's refusal to submit to a chemical test of the defendant's blood and breath, was sufficient to support a conviction for driving under the influence. Blankenship v. State, 301 Ga. App. 602, 688 S.E.2d 395 (2009).

Evidence was sufficient to authorize a jury to find the defendant guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent that it was less safe for the defendant to drive; a police officer, who had extensive experience and training in DUI detection, testified that in the officer's opinion, the defendant was under the influence of alcohol to the extent the defendant was less safe to drive, based on the officer's observation of the defendant's unsteadiness, flushed face, bloodshot, watery, glazed eyes, confused mental state, mumbled speech, and the strong odor of alcohol about the defendant's body as well as the statement of a passenger that the defendant had been drinking beer a short time before. The defendant's refusal to submit to field sobriety tests, an alco-sensor test, and the state-administered breath test was admissible as circumstantial evidence of intoxication and, together with other evidence, would support an inference that the defendant was an impaired driver. Crusselle v. State, 303 Ga. App. 879, 694 S.E.2d 707 (2010).

Evidence presented by the state was sufficient for any rational trier of fact to find the defendant guilty of driving under the influence less safe beyond a reasonable doubt because the defendant's consumption of alcohol was established by the defendant's own testimony, the positive result from the alcosensor test, evidence that the defendant's blood alcohol content was between 0.073 and 0.085 an hour after the incident, the smell of alcohol emanating from the defendant, and the defendant's watery and bloodshot eyes. Moreover, the evidence that the defendant was speeding constituted evidence that the defendant's driving was impaired and the officer testified that in the officer's opinion, the defendant was under the influence of alcohol to the extent that it was less safe for the defendant to drive. A police officer may give opinion testimony as to the state of sobriety of a driving under the influence (DUI) suspect and whether the suspect was under the influence to the extent it made the suspect less safe to drive; further, it was well-settled that DUI could be proved solely by circumstantial evidence and it was not necessary that the circumstantial evidence exclude every other hypothesis except that of guilt. Jaffray v. State, 306 Ga. App. 469, 702 S.E.2d 742 (2010).

Evidence was sufficient to support a defendant's convictions for driving under the influence of alcohol (DUI) per se and DUI less safe in violation of O.C.G.A. § 40-6-391(a)(5) and (a)(1), respectively, because the arresting officer smelled alcohol, the defendant admitted drinking and wrecking the defendant's motorcycle, and the defendant's breath test result was 0.152 grams. Jacobson v. State, 306 Ga. App. 815, 703 S.E.2d 376 (2010), cert. denied, No. S11C0498, 2011 Ga. LEXIS 582 (Ga. 2011).

Evidence of the defendant's erratic driving, some of which was recorded by a deputy's dashboard camera, the defendant's failing field sobriety tests, the defendant's admission that the defendant had been drinking, and the defendant's Intoxilyzer 5000 result exceeding .08 grams, were sufficient to support the defendant's conviction of driving under the influence of alcohol under O.C.G.A. § 40-6-391(a)(5). Miller v. State, 307 Ga. App. 701, 706 S.E.2d 94 (2011).

Evidence was more than sufficient to establish not only that the defendant had been drinking, but that the defendant was a less safe driver because the defendant was impaired. During the trial: (1) a truck driver testified that the truck driver called9-1-1 to report that the defendant was driving erratically; (2) a police officer, who responded to the call, testified that the officer videotaped the erratic driving and stopped the defendant; (3) the videotape showed the erratic driving; (4) the officer testified and the video showed that, when the defendant exited the vehicle, the defendant was unsteady on the defendant's feet; (5) the officer testified that the defendant's speech was slightly slurred, the defendant's eyes were bloodshot and glassy, and that a strong odor of alcohol was coming from the defendant's breath or person; (6) the officer testified that the defendant mentioned that the defendant had consumed a couple of beers or drinks; (7) the officer testified that the defendant unsuccessfully attempted to perform standardized field sobriety tests; and (8) the defendant agreed to blow into an alcosensor, which indicated positive for alcohol. Schenck v. State, 307 Ga. App. 890, 706 S.E.2d 218 (2011).

Assuming that the defendant's post-verdict motion for judgment notwithstanding the verdict was a motion for new trial, it was, nevertheless, wholly without merit because the evidence was sufficient to convict the defendant of driving under the influence (to the extent that the defendant was a less-safe driver, O.C.G.A. § 40-6-391(a)(1)) because a police officer administered two field-sobriety tests, and defendant exhibited clues of impairment on each. Masood v. State, 313 Ga. App. 549, 722 S.E.2d 149 (2012).

Evidence was sufficient for the jury to find the defendant guilty of first degree homicide by vehicle, O.C.G.A. § 40-6-393(a), first degree feticide by vehicle, O.C.G.A. § 40-6-393.1(b)(1), driving under the influence (DUI) of alcohol, O.C.G.A. § 40-6-391(a)(5), and DUI of alcohol to the extent that it was less safe for the defendant to do so, § 40-6-391(a)(1), because the state presented evidence that the defendant had a blood-alcohol content of nearly double the legal limit at or near the time the defendant veered across three lanes of traffic and collided with a driver's pick-up truck, which resulted in the death of the driver, a passenger, and the passenger's unborn child. Jones v. State, 313 Ga. App. 590, 722 S.E.2d 202 (2012).

Sufficient evidence supported defendant's conviction on three counts of endangering a child under the age of 14 while driving under the influence, in violation of O.C.G.A. § 40-6-391(a)(1), because defendant drove into a tree while operating a vehicle containing three children as passengers, resulting in a fatality and other serious injuries, a clear plastic bottle containing 77 proof alcohol was found on the floorboard, and the defendant's blood alcohol content was 0.207 grams. Crowe v. State, 314 Ga. App. 527, 724 S.E.2d 831 (2012).

The evidence was sufficient for the jury to find the defendant guilty beyond a reasonable doubt of driving under the influence (DUI) less safe in violation of O.C.G.A. § 40-6-391(a)(1) because upon questioning, the defendant told the officer that the defendant had been drinking, an alco-sensor administered to the defendant tested positive for alcohol, and a second officer smelled the odor of alcohol on the defendant's breath. Cordy v. State, 315 Ga. App. 849, 729 S.E.2d 13 (2012).

Evidence that the defendant was found in the driver's seat of the irregularly parked vehicle with the keys in the ignition, the defendant was the sole occupant of the vehicle, there was no evidence another party drove the vehicle to the location, the defendant failed field sobriety tests, and the defendant had a blood-alcohol concentration of .212 grams according to intoxilyzer tests was sufficient to support the defendant's conviction for driving with an unlawful alcohol concentration. Stallings v. State, 319 Ga. App. 587, 737 S.E.2d 592 (2013).

Defendant's conviction for DUI was affirmed because the officer's testimony was sufficient to prove beyond a reasonable doubt that the defendant was under the influence of alcohol. The officer's opinion testimony that the defendant was under the influence of alcohol was direct evidence of the defendant's guilt; thus, the reasonable hypothesis rule did not apply. Hinton v. State, 319 Ga. App. 673, 738 S.E.2d 120 (2013).

Witnesses' observations of the defendant's slurred speech, bloodshot eyes, lack of balance, odor of alcohol, and repeated collisions with the victim's truck was sufficient to support the defendant's conviction for driving under the influence to the extent it was less safe for the defendant to drive. Simmons v. State, 321 Ga. App. 743, 743 S.E.2d 434 (2013).

Evidence was sufficient to support the defendant's conviction for DUI per se as an officer observed that the defendant exited the driver's side door of the vehicle, appeared nervous, had glassy, bloodshot eyes, and had a very strong odor of alcohol about the defendant's person. A second officer made the same observations and performed a breath test, which registered positive for the presence of alcohol. Daniels v. State, 321 Ga. App. 748, 743 S.E.2d 440 (2013).

Evidence that the defendant was found in the driver's seat of a vehicle that had the vehicle's flashers on and was stopped in the lane of travel, the defendant was the sole occupant of the vehicle, the defendant failed field sobriety tests, and the defendant had a blood-alcohol concentration that was double the legal limit supported the conviction for DUI per se. Green v. State, 323 Ga. App. 832, 748 S.E.2d 479 (2013).

Sufficient evidence supported the defendant's conviction for driving under the influence, less safe, based on the evidence of the defendant's refusal to take the state-administered breath test, the smell of alcohol on the defendant's person, and the defendant's repeated refusals to follow the officer's commands. Taylor v. State, 326 Ga. App. 27, 755 S.E.2d 839 (2014).

Sufficient evidence supported the defendant's conviction for driving under the influence based on testimony that prior to the accident, the defendant was driving aggressively at an excessive rate of speed and weaving before crossing the median and making impact with the victim's car and the testimony from a witness and law-enforcement officer that the defendant reeked of alcohol, had bloodshot eyes, spoke with slurred speech, became belligerent, and refused to submit to a state-administered test. Holman v. State, 329 Ga. App. 393, 765 S.E.2d 614 (2014).

Defendant's testimony that the defendant had smoked synthetic marijuana and taken prescription Thorazine on the day of the offense and the officer's testimony that the officer administered the horizontal gaze nystagmus test and observed all six traits was sufficient for the jury to find the defendant guilty of driving under the influence of a drug to the extent that it was less safe to drive. Jones v. State, 332 Ga. App. 449, 773 S.E.2d 408 (2015).

Evidence was sufficient to convict the defendant of driving under the influence of alcohol to the extent that the defendant was a less safe driver, speeding, failure to maintain lane, and driving while possessing an open container of an alcoholic beverage when the evidence showed that a sergeant pulled over the defendant's car for speeding and failing to maintain the defendant's lane, another officer observed six out of six clues of impairment in the officer's horizontal gaze nystagmus evaluation of the defendant and smelled the odor of an alcoholic beverage coming from the defendant's mouth, and, after the defendant's arrest, the sergeant searched the defendant's car and found a glass filled with ice and a dark liquid that smelled like an alcoholic beverage. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).

Evidence that the defendant lost control of a motorcycle on a straight road, the defendant's blood alcohol level was nearly double that required for a conviction of DUI per se, the defendant professed lack of memory of driving, and the defendant's addled state of mind authorized the court to find the defendant guilty of DUI less safe. Canelas v. State, 345 Ga. App. 497, 813 S.E.2d 170 (2018).

Evidence supporting verdict of drunken driving.

- Evidence supports a verdict of drunken driving when, at the time the troopers arrived at the scene of the alleged crime, the defendant was sitting under the steering wheel of the automobile and attempting to get the car in gear, the motor of the automobile was running, and the automobile rolled backwards when the witness started to get out of the patrol car. Echols v. State, 104 Ga. App. 695, 122 S.E.2d 473 (1961) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Evidence showing that the defendant was speeding, drove at least a short distance without car headlights, was unruly and belligerent upon arrest, was unsteady, smelled of alcohol, and repeatedly refused to submit to an intoximeter test was sufficient to support a conviction. Howell v. State, 179 Ga. App. 632, 347 S.E.2d 358 (1986).

When the state's evidence shows that the defendant was driving under the influence of alcohol (.16 grams percent) at a high rate of speed without any lights, recklessly passed two other vehicles immediately prior to the collision with the victim, and was driving in the wrong lane when the defendant crashed into the victim's car, the evidence is sufficient to enable any rational trier of fact to find that a causal connection existed between the defendant's violation of O.C.G.A. § 40-6-390 or O.C.G.A. § 40-6-391 and the victim's death and thus to find the defendant guilty beyond a reasonable doubt of the offense of homicide by vehicle in the first degree. McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986).

When the arresting officer testified that there was an odor of alcohol about the car driven by the defendant, that the defendant was unstable on the defendant's feet and the defendant's speech was slurred, and the officer stated that, based on the officer's experience of almost 20 years as a police officer and having observed four or five hundred people driving under the influence of alcohol, the defendant was under the influence of alcohol and that the defendant's driving ability was impaired as a result of the defendant being under the influence of alcohol, the evidence was sufficient to allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt of driving under the influence of alcohol. Williams v. State, 190 Ga. App. 361, 378 S.E.2d 886, cert. denied, 190 Ga. App. 899, 378 S.E.2d 866 (1989).

When a defendant's intoximeter test revealed an alcohol concentration of .26 grams, a rational trier of fact could reasonably conclude that the defendant was guilty beyond a reasonable doubt of driving under the influence of alcohol. Jones v. State, 195 Ga. App. 569, 394 S.E.2d 387 (1990).

Superior court did not err in concluding, on de novo review of the evidence presented to the probate court, that the defendant was intoxicated to the extent that the defendant was rendered a less safe driver and in finding the defendant guilty as charged since the where defendant presented no evidence to rebut the presumption raised by evidence that a breath test properly administered to the defendant resulted in a reading of .17 grams. Bell v. State, 197 Ga. App. 175, 398 S.E.2d 29 (1990).

Evidence was sufficient to support conviction of driving under the influence after the officer observed only one occupant in the vehicle during the course of a prolonged erratic pursuit and witnessed the removal of the vehicle's sole occupant, whom the officer positively identified as the defendant, when the vehicle stopped. Hilburn v. State, 207 Ga. App. 127, 427 S.E.2d 97 (1993).

When the evidence revealed that the defendant had a blood-alcohol concentration of .11 percent within less than an hour after operating a moving vehicle, that the defendant "had glassy eyes" at the time of arrest and that a strong odor of alcohol permeated the vehicle defendant was driving shortly before the defendant's arrest, this evidence and testimony that the defendant consumed alcoholic beverages before defendant's arrest was sufficient to authorize the jury's finding that the defendant was guilty, beyond a reasonable doubt, of driving under the influence of alcohol in violation of paragraph (a)(1) of O.C.G.A. § 40-6-391. Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993), overruled on other grounds, State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

Direct evidence that the defendant was passed out in the driver's seat behind the wheel of a truck, with the engine running and the lights on and that the truck moved a few inches when the officer roused the defendant, coupled with other circumstantial evidence, was sufficient to support a finding that the defendant was in control of a moving vehicle while intoxicated. Green v. State, 214 Ga. App. 664, 448 S.E.2d 758 (1994).

Evidence that the defendant was speeding and abruptly changing lanes while there was marijuana in the defendant's system was sufficient to authorize a jury's finding that the defendant was under the influence of any drug to the extent that it was less safe for the defendant to drive in violation of paragraph (a)(2) of O.C.G.A. § 40-6-391 beyond a reasonable doubt. Grant v. State, 215 Ga. App. 10, 449 S.E.2d 545 (1994).

Evidence that defendant drove an automobile while the defendant's blood-alcohol level was in excess of the legal limit was sufficient to authorize the jury's finding that the defendant was guilty beyond a reasonable doubt. Ellerbee v. State, 215 Ga. App. 102, 449 S.E.2d 874 (1994).

Whether the person is a less safe driver is irrelevant because to obtain a conviction the state only needs to prove the physical act of driving with any amount of the specified drugs in the blood or urine. Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).

Evidence was sufficient to support a conviction for driving under the influence, notwithstanding the reversal of the defendant's conviction for making an improper turn, when the arresting officer testified that the defendant abruptly turned in front of another vehicle and almost caused an accident and that the officer noticed an odor of alcohol on the defendant's breath and that the defendant had bloodshot and glassy eyes. Burke v. State, 233 Ga. App. 778, 505 S.E.2d 528 (1998).

Two breathalyzer tests, which showed blood alcohol concentrations of .101 and .103 were sufficient to support a conviction for driving under the influence, notwithstanding that the breathalyzer machine had a margin of error of .010. Scheipers v. State, 234 Ga. App. 112, 505 S.E.2d 835 (1998).

When the evidence showed that the defendant lost control of the defendant's vehicle while the defendant was speeding and attempting to pass in a no-passing zone and that the defendant had ingested both alcohol and cocaine, the defendant was properly convicted of driving under the influence. Gentry v. State, 236 Ga. App. 820, 513 S.E.2d 528 (1999).

When the evidence showed that the defendant not only smelled of alcohol and failed field sobriety tests, but also that the defendant sped through a stop sign, the jury was authorized to find beyond a reasonable doubt that the defendant was guilty of driving under the influence of alcohol to the extent that it was less safe for defendant to drive. Kelly v. State, 242 Ga. App. 30, 528 S.E.2d 812 (2000).

Police officer's testimony and evidence of the state-administered blood alcohol result to which the defendant stipulated were sufficient to enable the jury to conclude beyond a reasonable doubt that the defendant was guilty of DUI in violation of O.C.G.A. § 40-6-391(a)(1). Schoolfield v. State, 251 Ga. App. 52, 554 S.E.2d 181 (2001).

Evidence was sufficient to support a conviction for driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391(a)(1) since the evidence showed that the defendant smelled strongly of alcohol, had watery bloodshot eyes, failed the horizontal gaze nystagmus test, and was positive for alcohol on the alcosensor test. Duren v. State, 252 Ga. App. 257, 555 S.E.2d 913 (2001).

When police discovered the defendant, passed out in the driver's seat of the defendant's truck, with the engine running, in a front yard and the defendant's blood-alcohol content was over the legal limit, the reasonable conclusion was that the defendant was driving the truck while under the influence and it followed that the evidence of defendant's guilt was sufficient to sustain defendant's conviction. Jarriel v. State, 255 Ga. App. 305, 565 S.E.2d 521 (2002).

Evidence was sufficient to convict the defendant of driving while under the influence of alcohol as the state introduced evidence to satisfy the statutory requirement that the defendant's alcohol concentration was equal or greater to the legal limit within three hours of driving. Young v. State, 275 Ga. 309, 565 S.E.2d 814 (2002).

Because there was no requirement that a driver actually committed an unsafe act to be found to be under the influence of alcohol to the extent that it was less safe for the driver to drive, or that the state had to prove impaired driving ability, a rational trier of fact was authorized to find beyond a reasonable doubt that the defendant was driving while impaired by alcohol to the extent that the defendant was a less safe driver after the state produced evidence that, at the time of a vehicle stop, the defendant had glassy, bloodshot eyes, was unsteady, smelled of alcohol, had jumpy eyes in field sobriety tests, had alcohol on the breath, had trouble reciting the alphabet, had a blood-alcohol level of approximately .09 grams, and had admitted to drinking alcohol that evening. Susman v. State, 256 Ga. App. 94, 567 S.E.2d 736 (2002).

There was sufficient evidence to support defendant's conviction of driving under the influence of alcohol to the extent that it was less safe to drive in violation of O.C.G.A. § 40-6-391(a)(1) since, inter alia, the defendant was stopped for speeding, defendant's eyes were glassy and blood-shot, the defendant's speech was slightly slurred, the defendant's breath had a strong odor of alcohol, the defendant admitted to having consumed more than one drink, and the defendant failed several field sobriety tests. Mueller v. State, 257 Ga. App. 830, 572 S.E.2d 627 (2002).

Trial court did not err in denying the defendant's motions for directed verdict and new trial because the evidence was sufficient to sustain the defendant's convictions for vehicular homicide and DUI where several witnesses on the scene testified that the defendant was in the driver's seat of the vehicle immediately after the accident. Hunt v. State, 261 Ga. App. 417, 582 S.E.2d 493 (2003).

Evidence that the defendant was driving erratically, that the defendant's breath smelled of alcohol, that the defendant's eyes were red, that the defendant's speech was slurred, and that the defendant exited the vehicle in a slow and unsteady manner after the defendant was stopped by a police officer for traffic violations was sufficient to support the defendant's conviction for driving under the influence of alcohol. Stearnes v. State, 261 Ga. App. 522, 583 S.E.2d 195 (2003).

Evidence that the defendant had crack cocaine in defendant's urine at the time the defendant led police on a high-speed motor vehicle chase, including subsequent tests that confirmed the defendant had crack cocaine in the defendant's system, was sufficient to support the defendant's conviction for driving with drugs present in the defendant's urine. Arnold v. State, 262 Ga. App. 61, 584 S.E.2d 662 (2003).

Police officer's testimony that the defendant was driving erratically, failed to pass field sobriety tests, and, when confronted smelled of alcohol and was exhibiting strange behavior was sufficient to sustain a DUI conviction in violation of O.C.G.A. § 40-6-391(a)(1). Weldon v. State, 262 Ga. App. 854, 586 S.E.2d 741 (2003).

There was sufficient evidence to support the defendant's conviction for driving under the influence of alcohol to the extent it was less safe for the defendant to drive pursuant to O.C.G.A. § 40-6-391(a)(1), including the defendant's admission to police, the admissibility of which the defendant conceded by brief on appeal, the condition of the defendant's person upon being arrested, and the defendant's failure of the field sobriety tests administered on the scene, as well as the breath tests administered shortly thereafter; there is no requirement that the defendant actually commit an unsafe act to violate § 40-6-391(a)(1). Marryott v. State, 263 Ga. App. 65, 587 S.E.2d 217 (2003).

Defendant's conviction for drunk driving was upheld on appeal because sufficient evidence showed that the defendant failed the field sobriety tests administered to the defendant and because, upon arrest, the defendant had red glassy eyes, an unsteady stance, mumbled speech, smelled of alcohol, admitted to having had two beers, and admitted to driving to a bar. Mullady v. State, 270 Ga. App. 444, 606 S.E.2d 645 (2004).

Defendant was properly found guilty of driving under the influence given the evidence regarding the manner of failing to yield when entering the roadway, the smell of alcohol on the defendant's person, the positive result of the blood alcohol test, the defendant's performance on the field sobriety tests, the open containers of alcohol in the vehicle, and the defendant's decision to flee from the scene. Dorsey v. State, 327 Ga. App. 226, 757 S.E.2d 880 (2014).

Evidence supported the defendant's conviction for DUI and driving with a suspended license, O.C.G.A. §§ 40-5-121 and40-6-391, based on evidence that the homeowners called 911 to report the defendant leaving their home intoxicated, that police observed signs of impairment (odor of alcohol, horizontal gaze nystagmus clues, and positive breath test), and a blood test. Danley v. State, 342 Ga. App. 61, 802 S.E.2d 851 (2017).

Evidence insufficient to sustain conviction of driving under influence.

- When it was not shown whether or not it was less safe for the defendant to operate the car than it would have been without the alleged intoxicants, opinion evidence that the defendant had been drinking was insufficient to sustain a conviction for operating an automobile upon a public highway while under the influence. Turner v. State, 95 Ga. App. 157, 97 S.E.2d 348 (1957).

When the evidence introduced on behalf of the state showed merely that an automobile belonging to the defendant was observed being operated on a public street or thoroughfare, that when the officers stopped the automobile the officers arrested the defendant, who was in the automobile and was in an intoxicated condition, and that another adult person was also an occupant of the automobile; since the evidence wholly fails to show directly that the defendant was the operator of the automobile; and since the circumstances otherwise appearing in the case are equally consistent with the theory that the other occupant was the driver of the automobile as with the theory that the defendant was the driver, the evidence was insufficient to authorize the verdict of guilty. Spence v. State, 96 Ga. App. 851, 102 S.E.2d 51 (1958).

Arresting officer's testimony that the defendant's "eyes were red and glassy, and he had an odor of alcoholic beverage about his breath" was insufficient to sustain a conviction under paragraph (a)(1) of O.C.G.A. § 40-6-391 since the officer testified unequivocally that the defendant's speech was not slurred, that the defendant was not staggering, and that there was nothing unusual or erratic about the defendant's driving. Clay v. State, 193 Ga. App. 377, 387 S.E.2d 644 (1989).

With the exclusion of the defendant's medical records from evidence, the remaining evidence was not sufficient to enable a rational trier of fact to find the defendant guilty of violating O.C.G.A. § 40-6-391. King v. State, 272 Ga. 788, 535 S.E.2d 492 (2000).

Because no one saw the defendant drive the truck and there was no testimony or other evidence about the defendant's manner of driving or ability to drive, the evidence was insufficient to support a verdict on the driving under the influence count. Peck v. State, 245 Ga. App. 599, 538 S.E.2d 505 (2000).

Evidence was sufficient to convict the defendant of DUI when the victim the defendant hit with the defendant's truck testified in considerable detail about the defendant's failed effort to move the defendant's truck uneventfully from the truck's parking space and the victim also testified without dispute that the defendant smelled of alcohol, the defendant's speech was slurred, the defendant was slumped over the steering wheel, and seemed "incoherent." McKay v. State, 264 Ga. App. 726, 592 S.E.2d 135 (2003).

Because the state failed to prove that the defendant's blood alcohol level exceeded the legal limit within three hours of the time that the defendant was in actual physical control of a vehicle, and failed to present expert testimony to establish this fact, the appeals court agreed with the defendant's contention that insufficient evidence supported the defendant's DUI conviction under O.C.G.A. § 40-6-391(a)(5). Peters v. State, 281 Ga. App. 385, 636 S.E.2d 97 (2006).

Defendant's blood test results should have been suppressed because, although a nurse and an officer testified that the officer read the implied consent warning to the defendant prior to the blood draw, the actual card from which the officer read was not admitted into evidence, the state did not produce evidence of what was read to the defendant, and the state thus failed to prove that the state complied with the O.C.G.A. § 40-5-67.1(b) implied consent notice requirements; in the absence of the blood test results, there was no competent evidence that the defendant had an alcohol concentration of .08 grams or more within three hours after driving as charged in the accusation. Thus, the conviction for DUI per se was not supported by sufficient evidence. Epps v. State, 298 Ga. App. 607, 680 S.E.2d 636 (2009).

Since the state failed to show that the defendant had driven any vehicle during the relevant period or that a particular vehicle was involved in a hit-and-run incident, the evidence was not sufficient to support defendant's convictions for hit-and-run and less safe DUI, in violation of O.C.G.A. §§ 40-6-270 and40-6-391(a)(1); there was also no evidence that the defendant owned the car or was authorized to drive the car. Reynolds v. State, 306 Ga. App. 1, 700 S.E.2d 888 (2010).

Defendant's conviction for driving under the influence of alcohol was reversed because there was insufficient evidence to support the conviction given the state's failure to tender the Intoxilyzer 5000 test results into evidence. In the absence of the blood test results, there was no competent evidence that the defendant had an alcohol concentration of 0.08 grams or more at a time within three hours after driving and being in actual physical control of a moving vehicle. Cash v. State, 337 Ga. App. 511, 786 S.E.2d 560 (2016), cert. denied, No. S16C1760, 2017 Ga. LEXIS 123 (Ga. 2017).

Because the state failed to demonstrate that exigent circumstances justified the warrantless search, the trial court erred in admitting into evidence the results of the defendant's blood and urine tests and the defendant's conviction for DUI per se was reversed due to insufficient evidence. Bailey v. State, 338 Ga. App. 428, 790 S.E.2d 98 (2016).

Evidence insufficient for "less safe driver" conviction.

- Trial court erred in the court's conviction of an underage defendant who, while speeding, lost vehicular control, when the companions' testimony did not adduce that the defendant was a less safe driver as a result of being under the influence of alcohol, officer's testimony did not trace alcohol specifically to the defendant, and the defendant had blood test results indicating .04 grams. Davis v. State, 206 Ga. App. 647, 426 S.E.2d 267 (1992).

City police officer's testimony that the defendant was exceeding the speed limit by 10 miles per hour as shown by radar could not be used with evidence of a positive urine sample to support the defendant's conviction under paragraph (a)(2) of O.C.G.A. § 40-6-391. Webb v. State, 223 Ga. App. 9, 476 S.E.2d 781 (1996).

Evidence was sufficient to sustain a conviction since the arresting officer testified that the defendant had slurred speech, red and glassy eyes, was loud and boisterous, had the odor of an alcoholic beverage, and that the officer believed the defendant was under the influence of alcohol to a point where it was less safe to drive. Moore v. State, 234 Ga. App. 332, 506 S.E.2d 685 (1998).

When the evidence that the defendant was impaired as a result of ingesting marijuana consisted of a police officer's testimony that the defendant had red, glassy eyes and red eyelids at the time the defendant was stopped and admitted to having smoked marijuana earlier that evening, but the officer's testimony did not indicate that the defendant's speech was slurred, that the defendant was staggering, that the defendant failed any field sobriety tests or that there was anything unusual or erratic about the defendant's driving, it was insufficient to sustain a less safe driver conviction. Bowen v. State, 235 Ga. App. 900, 510 S.E.2d 873 (1999).

Evidence was not sufficient to establish that the defendant was driving under the influence of alcohol to the extent it made the defendant a less safe driver as the evidence at most showed the defendant had consumed an alcoholic beverage earlier in the day and, thus, that the defendant had alcohol in the defendant's system; however, the evidence did not show the alcohol in the defendant's system impaired the defendant or made the defendant a less safe driver. Ricks v. State, 255 Ga. App. 188, 564 S.E.2d 793 (2002).

Evidence supported a conviction of DUI to the extent that it was less safe to drive after the officer testified that the defendant drove erratically, had a flushed face and bloodshot eyes, and smelled of alcohol; the officer also noticed that the defendant's speech was heavily slurred, the defendant staggered and was unsteady on the defendant's feet, the defendant almost fell four times during the field sobriety tests, and that the defendant's performance on the tests indicated that the defendant was impaired. Grodhaus v. State, 287 Ga. App. 628, 653 S.E.2d 67 (2007), cert. denied, No. S08C0238 2008 Ga. LEXIS 173 (Ga. 2008).

Defendant's conviction for driving while under the influence of any drug to the extent that it was less safe for the defendant to drive, in violation of O.C.G.A. § 40-6-391(a)(2), was reversed because there was no evidence as to the effect of the drugs in the defendant's blood, alprazolam and a cocaine metabolite, on the defendant's ability to drive safely. Head v. State, 303 Ga. App. 475, 693 S.E.2d 845 (2010).

Evidence sufficient to establish that the defendant was a "less safe driver" within the meaning of paragraph (a)(1) of O.C.G.A. § 40-6-391. Lee v. State, 188 Ga. App. 406, 373 S.E.2d 28, cert. denied, 188 Ga. App. 912, 373 S.E.2d 28 (1988); Ayers v. City of Atlanta, 221 Ga. App. 381, 471 S.E.2d 240 (1996); Tam v. State, 225 Ga. App. 101, 483 S.E.2d 142 (1997); Thomas v. State, 226 Ga. App. 1, 485 S.E.2d 246 (1997); Dixon v. State, 227 Ga. App. 533, 489 S.E.2d 532 (1997); Hamilton v. State, 228 Ga. App. 285, 491 S.E.2d 485 (1997); Heath v. State, 229 Ga. App. 69, 493 S.E.2d 225 (1997); Garrett v. State, 230 Ga. App. 97, 495 S.E.2d 579 (1998); Walker v. State, 230 Ga. App. 376, 497 S.E.2d 12 (1998); Kollman v. State, 231 Ga. App. 630, 498 S.E.2d 745 (1998); Tuttle v. State, 232 Ga. App. 530, 502 S.E.2d 355 (1998); Self v. State, 232 Ga. App. 735, 503 S.E.2d 625 (1998); Mealor v. State, 233 Ga. App. 193, 504 S.E.2d 29 (1998); Sheffield v. State, 237 Ga. App. 701, 516 S.E.2d 563 (1999); Lanier v. State, 238 Ga. App. 875, 517 S.E.2d 106 (1999); Forsman v. State, 239 Ga. App. 612, 521 S.E.2d 410 (1999); Byrd v. State, 240 Ga. App. 354, 523 S.E.2d 578 (1999); Driver v. State, 240 Ga. App. 513, 523 S.E.2d 919 (1999); Harding v. State, 242 Ga. App. 609, 530 S.E.2d 514 (2000); Fairbanks v. State, 244 Ga. App. 123, 534 S.E.2d 529 (2000); Poole v. State, 249 Ga. App. 409, 548 S.E.2d 113 (2001).

Evidence was presented from which a rational trier of fact could reasonably find the defendant was intoxicated and that the defendant's intoxication caused the defendant to be a "less safe" driver which caused the collision and deaths of the defendant's three passengers. Mote v. State, 212 Ga. App. 551, 442 S.E.2d 799 (1994).

When the officer questioned the defendant about the vehicle, the defendant admitted that the defendant had been driving the vehicle, the defendant was unsteady on the defendant's feet and was unable to coordinate the defendant's motor and verbal skills, the defendant's eyes were bloodshot, a strong odor of alcohol permeated the defendant's body and clothing and the defendant subsequently submitted to an alco-sensor test, which was positive, this evidence was sufficient to authorize the trial court's finding that the defendant was guilty beyond a reasonable doubt of operating a moving vehicle under the influence of alcohol to the extent that it was less safe to drive. Martin v. State, 216 Ga. App. 25, 453 S.E.2d 498 (1995).

Testimony of one police officer that the officer observed the defendant drive into a parking lot at a high rate of speed, "scrub" a curb, abruptly make a loop, run a stop sign, and continue driving at a reckless speed, and testimony of that officer and a second officer that the defendant had bloodshot eyes, slurred speech, and a strong odor of alcohol about the defendant was sufficient to support the defendant's conviction for driving under the influence of alcohol (DUI) to the extent that it was less safe for the defendant to drive. Boyd v. State, 259 Ga. App. 864, 578 S.E.2d 472 (2003).

Evidence that the police officer noticed the distinct smell of alcohol about the defendant, that the defendant admitted consuming two beers, and that the defendant had trouble performing field sobriety tests was sufficient to support the defendant's conviction for driving under the influence to the extent that the defendant was a less safe driver. Long v. State, 261 Ga. App. 478, 583 S.E.2d 158 (2003).

Evidence was sufficient to support a less safe conviction under O.C.G.A. § 40-6-391(a)(1) since, although the arresting officer did not see the defendant drive, the defendant told the arresting officer the defendant was driving, that the defendant had collided with a tractor trailer, since the defendant never told the officer that the defendant was not driving or that another person had been driving the car, since the officer, who was an experienced accident investigator, testified that the tractor trailer's lane was clearly established when the tractor trailer was struck, that the defendant admitted that the defendant had been drinking, that the defendant smelled like alcohol, that the defendant's eyes were bloodshot, that the defendant's speech was slurred, and since the results of a test of the defendant's blood alcohol showed a level of .178 grams. Shoemake v. State, 266 Ga. App. 342, 596 S.E.2d 805 (2004).

Evidence that, while attempting to elude a police officer, the defendant drove at over 80 miles per hour, ran stop signs and traffic lights, struck two vehicles and tried to strike another, along with evidence of marijuana in the defendant's system, established the defendant's guilt of driving under the influence of marijuana to the extent that the defendant was a less safe driver. Ponder v. State, 274 Ga. App. 93, 616 S.E.2d 857 (2005).

Evidence that the defendant approached a stop sign at a high rate of speed on a highway's right shoulder between stopped traffic and the guardrail, passed stopped vehicles, and turned right at the stop sign without stopping, along with the defendant's bloodshot eyes, sobriety test results, and a trooper's opinion that the defendant was impaired, were sufficient to sustain a conviction of driving under the influence to the extent that the defendant was a less safe driver; since the state did not try to use the defendant's positive alco-sensor results, the requested charge that the jury be instructed that the alco-sensor test could not be used to establish breath-alcohol content was neither apt nor relevant. Hatcher v. State, 277 Ga. App. 611, 627 S.E.2d 175 (2006).

Evidence was sufficient to find the defendant guilty of vehicular homicide by driving under the influence of alcohol to the extent that it was less safe to drive, O.C.G.A. § 40-6-391(a)(1); despite the defendant's claims that the officers' statements were insufficient to prove that the blood alcohol concentration was .08 grams or more, the defendant stipulated that the Intoxilyzers used were "used to measure the blood alcohol content" of the body, and both officers read into evidence their implied consent cards which included the language ".08 grams." Corbett v. State, 277 Ga. App. 715, 627 S.E.2d 365 (2006).

Convictions of driving under the influence of alcohol to the extent that it was less safe for the defendant to drive, O.C.G.A. § 40-6-391(a)(1), reckless driving, O.C.G.A. § 40-6-390, and failure to maintain a lane, O.C.G.A. § 40-6-48, were supported by sufficient evidence when an officer stopped to assist the defendant, whose car was parked on the side of a road, the defendant told the officer that the defendant had driven off the road, the officer found tire marks and a fender in the area where the defendant ran off the road and the defendant's vehicle was missing the vehicle's left front fender, the officer noticed a strong odor of alcohol on the defendant's breath, the defendant admitted to drinking for over four hours and could not tell the officer how many drinks had been consumed, and the defendant then failed field sobriety tests. Taylor v. State, 278 Ga. App. 181, 628 S.E.2d 611 (2006).

Because the state failed to present sufficient evidence that the defendant had driven a vehicle within three hours prior to the Intoxilyzer 5000 test being administered, and no evidence was presented to support a per se violation of the offense, a driving under the influence of alcohol with an unlawful blood alcohol level conviction was reversed; but, given the defendant's admission to losing control of the vehicle and running into an embankment on the opposite side of the road, and evidence of a blood alcohol level well above the legal limit, which constituted circumstantial evidence of being a less-safe driver, a less-safe driving under the influence conviction was upheld. Norton v. State, 280 Ga. App. 303, 640 S.E.2d 48 (2006).

Defendant's conviction for driving under the influence to the extent that the defendant was a less safe driver under O.C.G.A. § 40-6-391(a)(1) was affirmed as it was supported by sufficient evidence including: (1) the defendant's admissions that the defendant had been driving a motorcycle and that the defendant had consumed "beer, tequila, and lots of alcohol" earlier in the day; (2) the defendant's refusal to submit to state-administered chemical testing; and (3) a deputy's opinion that the defendant was under the influence of alcohol to the extent that the defendant was a less safe driver. Kimbrell v. State, 280 Ga. App. 867, 635 S.E.2d 237 (2006).

Given that the state's evidence sufficiently showed that the defendant essentially admitted to being drunk to an investigating officer, and as a result of an attempt to drive, the car was lodged on a curb, and the officer found an open beer container inside the car, although circumstantial, this evidence was sufficient to support a finding that the defendant was driving the car while intoxicated; hence, the defendant was not entitled to a directed verdict of acquittal. Moore v. State, 281 Ga. App. 141, 635 S.E.2d 408 (2006).

Convictions for driving under the influence of drugs and to the extent that the defendant was a less-safe driver were upheld on appeal as supported by sufficient evidence, given that the defendant drove erratically, manifested signs of impairment, and had three drugs in the defendant's system; hence, when coupled with the fact that no evidence of tampering with the defendant's urine sample was submitted, the trial court did not abuse the court's discretion in admitting the sample and in denying the defendant's motion for a new trial. Kelly v. State, 281 Ga. App. 432, 636 S.E.2d 143 (2006).

Because an officer's description of the defendant's speech, behavior, bloodshot eyes, odor, performance on the field sobriety tests, and the result of the alco-sensor test, when coupled with the defendant's own testimony, were sufficient to authorize a jury to convict the defendant of driving under the influence of alcohol to the extent of being a less safe driver, the trial court properly denied the defendant a new trial. Renkiewicz v. State, 283 Ga. App. 692, 642 S.E.2d 384 (2007).

Appeals court found sufficient evidence to support the defendant's convictions for DUI to the degree of being a less-safe driver and of failing to stop at a stop sign as the evidence, although not overwhelming, showed that the defendant smelled of alcohol, had run a stop sign, and that the arresting officer believed that the defendant was a less-safe driver as a result of alcohol consumption. Sistrunk v. State, 287 Ga. App. 39, 651 S.E.2d 350 (2007).

Because: (1) the appeals court did not weigh the evidence or determine witness credibility, despite the two conflicting views of the evidence; and (2) a jury charge related to HGN tests, where no HGN test was given, was proper, sufficient evidence supported the defendant's less-safe driver conviction under O.C.G.A. § 40-6-391(a)(1); thus, the trial court did not err in denying the defendant's motion for a directed verdict of acquittal. Massa v. State, 287 Ga. App. 494, 651 S.E.2d 806 (2007).

Evidence was sufficient to sustain the defendant's conviction for "less safe" driving under the influence, O.C.G.A. § 40-6-391(a)(1), as in addition to the defendant having slurred speech and bloodshot, watery eyes, being unsteady on the defendant's feet, admitting to drinking, having a blood-alcohol content of .136 gram percent, and driving the defendant's car off the roadway, the experienced arresting officer testified that, in the officer's opinion, the defendant was less safe to drive. Schlanger v. State, 290 Ga. App. 407, 659 S.E.2d 823 (2008).

Evidence was sufficient for any rational trier of fact to find the defendant guilty of driving under the influence of alcohol to the extent that the defendant was a less safe driver, O.C.G.A. § 40-6-391(a)(1), beyond a reasonable doubt because the defendant's drinking was established by evidence that the defendant's blood-alcohol level was between .078 and .115 at the time of the incident, and the defendant drove the vehicle off the roadway, spun out of control, and struck an electrical pole; the arresting deputies testified to the defendant's slurred speech, stumbling gait, "glazy" eyes, and "pasty" complexion, one of the officers smelled alcohol coming from the defendant's person and vehicle, and the experienced officers testified that, in their opinion, the defendant was under the influence to the extent that it was less safe for the defendant to drive. Davis v. State, 301 Ga. App. 484, 687 S.E.2d 854 (2009), cert. dismissed, No. S10C0633, 2010 Ga. LEXIS 339 (Ga. 2010).

Trial court did not err in convicting the defendant of driving under the influence of alcohol to the extent it was less safe for the defendant to drive, possession of an open container of alcoholic beverage, and disorderly conduct because the testimony of the driver accosted by the defendant and the arresting officer was sufficient to enable a rational jury to find the defendant guilty beyond a reasonable doubt of the charged crimes; the defendant's erratic driving in a crowded parking lot, the defendant's odd and belligerent behavior toward the other driver in a drive-thru line, the odor of alcohol on the defendant's breath and person, the defendant's watery and bloodshot eyes, the defendant's staggering on the sidewalk, the defendant's refusal to submit to the alco-sensor test, the field sobriety tests, and the state-administered breath test, and the open container in the defendant's truck were sufficient to show that alcohol impaired the defendant's ability to drive safely. Corbin v. State, 305 Ga. App. 768, 700 S.E.2d 868 (2010).

Although a police officer did not conduct field sobriety tests due to the defendant's injuries, the evidence was sufficient to sustain the defendant's DUI less safe conviction because the evidence showed that: (1) the defendant lost control of the vehicle the defendant was driving and left the roadway; (2) the defendant told a9-1-1 operator after the accident that the defendant was intoxicated; (3) there was an odor of alcohol inside the vehicle; (4) there was an odor of alcohol on the defendant's person; and (5) the defendant's eyes were dilated in a well-lit room. Fletcher v. State, 307 Ga. App. 131, 704 S.E.2d 222 (2010).

Sufficient evidence including: (1) the defendant's excessive speed and erratic driving; (2) the defendant's possession of methamphetamine; and (3) the defendant's blood results showing the presence of methamphetamine and amphetamine, supported the jury's finding that the defendant's ability to safely operate the vehicle was impaired by the defendant's ingestion of methamphetamine and amphetamine. Kar v. State, 318 Ga. App. 379, 733 S.E.2d 387 (2012).

Evidence sufficient for vehicular homicide conviction.

- After the defendant admitted having consumed a six-pack of beer approximately two-and-one-half hours prior to the accident, and a forensic chemist testified that the defendant's blood-alcohol level at the time of the accident would have been between .105 and .13 percent, the expert testimony was sufficient, pursuant to former subparagraph (b)(3) of O.C.G.A. § 40-6-392, to authorize the conclusion that the defendant was "under the influence of alcohol" within the contemplation of paragraph (a)(1) of O.C.G.A. § 40-6-391. Based on this evidence, combined with the evidence of the defendant's erratic driving, a rational trier of fact could reasonably have found the defendant guilty of vehicular homicide beyond a reasonable doubt. Collum v. State, 186 Ga. App. 822, 368 S.E.2d 578 (1988).

In a prosecution for vehicular homicide, the state was not required to produce direct evidence showing that the defendant's impaired driving ability proximately caused the collision. Dobson v. State, 222 Ga. App. 331, 474 S.E.2d 630 (1996).

Allegations in an indictment of reckless driving and vehicular homicide through reckless driving, in violation of O.C.G.A. §§ 40-6-390(a) and40-6-391(a)(1), were proven by evidence that the defendant drove 15 to 20 miles over the speed limit in the rain, weaving in and out of traffic, with a blood alcohol level of 0.135, ultimately crossing a median into oncoming traffic and killing a victim. Prather v. State, 303 Ga. App. 374, 693 S.E.2d 546 (2010).

Evidence was sufficient for a a conviction of vehicular homicide, O.C.G.A. § 40-6-393(a), based on the defendant's driving while impaired by alcohol and taking a fast turn in a door-less jeep, causing the defendant's passenger to be thrown onto the highway where the passenger was struck by another vehicle; the jury could conclude that the defendant's conduct played a substantial part in bringing about the passenger's death. A few hours after the accident the defendant's blood-alcohol content was .19 grams, more than twice the legal limit. Hartzler v. State, 332 Ga. App. 674, 774 S.E.2d 738 (2015).

Evidence of prior conviction as character evidence.

- Although the evidence was sufficient to support defendant's convictions for vehicular homicide under O.C.G.A. § 40-6-391(b), the court's admission of similar-transaction evidence, consisting of a prior methamphetamine conviction, was erroneous as irrelevant character evidence under former O.C.G.A. § 24-2-2 (see now O.C.G.A. § 24-4-404), and the conviction was reversed. McMullen v. State, 316 Ga. App. 684, 730 S.E.2d 151 (2012).

Evidence sufficient to support adjudication of delinquency based on charge of driving under influence. In re C.P.M., 213 Ga. App. 761, 446 S.E.2d 242 (1994).

Admission of similar transaction evidence appropriate.

- Notwithstanding a defendant's argument that the admission of similar transaction evidence at the defendant's trial for driving under the influence to show bent of mind violated state and federal due process, the court had to affirm the judgment as only the Georgia Supreme Court or the legislature had the authority to depart from the state's established rule on the admissibility of such evidence. Wade v. State, 295 Ga. App. 45, 670 S.E.2d 864 (2008), cert. denied, No. S09C0568, 2009 Ga. LEXIS 265 (2009).

Relevant evidence admissible.

- Defendant was properly convicted of DUI per se in violation of O.C.G.A. § 40-6-391(a)(5) because the trial court did not err in admitting evidence of the defendant being a less safe driver, the defendant's alcohol impairment, and of the field sobriety tests; the evidence of the defendant's field sobriety test was relevant to counter the defendant's attacks on the accuracy of the breath test, and the evidence of the defendant's impairment was relevant to establish the facts that were the basis for the DUI arrest. Holowiak v. State, 308 Ga. App. 887, 709 S.E.2d 39 (2011), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011), vacated in part, 316 Ga. App. 328, 729 S.E.2d 486 (2012).

Cell phone evidence inadmissible in DUI case.

- Trial court erred by denying the defendant's motion to suppress the digital contents of the defendant's cell phone following the defendant's arrest for driving while under the influence because no exigent circumstances existed, particularly since the defendant was arrested, handcuffed, and the keys secured. Specifically, warrantless searches of a cell phone, even one that is seized incident to an arrest, is illegal, unless the state can show that exigent circumstances made the needs of law enforcement so compelling that a warrantless search was objectively reasonable under U.S. Const., amend. IV. Brown v. State, 330 Ga. App. 488, 767 S.E.2d 299 (2014).

Failure to show breath test machine manufacturer was a material witness.

- In 10 driving under the influence cases, because the defendants failed to present any evidence of facts supporting the existence of an error in their breath test results as required by case law, the trial court did not abuse the court's discretion when the court determined that the defendants failed to show that the machine's manufacturer was a material witness under the Uniform Act to Secure Attendance of an Out-of-State Witness Act, O.C.G.A. § 24-13-94(a). Young v. State, 324 Ga. App. 127, 749 S.E.2d 423 (2013).

Suppression motion to exclude breath test results properly denied.

- Because the evidence sufficiently showed that the defendant asked for a blood test in response to the officer's request to submit to the state-administered breath test, clearly attempting to designate the state-administered test, not request an independent test, and the defendant understood that the type of test that would be done was solely of the state's choosing, the trial court properly denied a motion to suppress the breath test results obtained. Brooks v. State, 285 Ga. App. 624, 647 S.E.2d 328 (2007).

Fact that a defendant did not have sufficient breath to complete the second of two breath tests did not require suppression of the first test which indicated a blood alcohol level of .146. Thrasher v. State, 292 Ga. App. 566, 666 S.E.2d 28 (2008).

Trial court did not err in admitting the results of the defendant's portable alco-sensor test because even though the defendant was in custody for purposes of Miranda, the portable test was administered in response to a demand from the defendant, not the officer; thus, the situation was more akin to a spontaneous outburst from an unwarned suspect or a test conducted pursuant to the Georgia implied consent statute, O.C.G.A. § 40-6-392. Hale v. State, 310 Ga. App. 363, 714 S.E.2d 19 (2011).

It constitutes negligence for motorist to operate a car while under influence of intoxicating liquors when the liquor contributes to and is a cause of the motorist's running into and striking another's car. Hammond v. Young, 89 Ga. App. 669, 80 S.E.2d 825 (1954) (decided under former Code 1933, § 68-307).

Quantification of controlled substance not required.

- Amounts of controlled substances in urine sample did not have to be quantified to prove charges of driving under the combined influence of marijuana and cocaine and drug possession. Kerr v. State, 205 Ga. App. 624, 423 S.E.2d 276, cert. denied, Tempo Mgt., Inc. v. Lewis, 210 Ga. App. 390, 436 S.E.2d 98 (1993).

Trial court did not err by allowing evidence of the defendant's urine test's results even though the laboratory report did not quantify the cocaine detected in the defendant's urine. Woityra v. State, 213 Ga. App. 89, 443 S.E.2d 867 (1994).

Evidence of drugs insufficient.

- When the evidence at trial that a defendant had ingested cocaine was the only evidence adduced to show defendant's violation of O.C.G.A. § 40-6-391, there was nothing from which the jury could have inferred that the defendant was under the influence of cocaine to the extent that the defendant was a less safe driver; thus, the evidence was not sufficient to convict the defendant of driving under the influence. Sparks v. State, 195 Ga. App. 589, 394 S.E.2d 407, overruled on other grounds, Green v. State, 260 Ga. 625, 398 S.E.2d 360 (1990).

Mere fact that the defendant had ingested marijuana as shown by a positive urine sample was not sufficient to support a conviction under paragraph (a)(2) of O.C.G.A. § 40-6-391 because that provision did not prohibit driving after ingesting any quantity of drugs. Webb v. State, 223 Ga. App. 9, 476 S.E.2d 781 (1996).

Admissibility of field sobriety tests.

- Because the defendant: (1) was not in custody for the purposes of Miranda when asked to perform field sobriety tests; (2) did not make any statement or take any overt act which would have caused a reasonable person to believe that the encounter was anything more than a temporary detention; and (3) voluntarily submitted to the field sobriety tests, suppression of the results of the tests was properly denied. McDevitt v. State, 286 Ga. App. 120, 648 S.E.2d 481 (2007).

Trial court did not err in denying the defendant's motion to suppress evidence of the results of field sobriety tests on the ground that the tests were administered without the defendant having the benefit of a Miranda warning because the defendant was not in custody until after the field sobriety tests were complete; the defendant was allowed to walk around and was not put into handcuffs or a patrol car while the defendant and the first officer awaited the arrival of the second officer, and a reasonable person in the defendant's position could conclude that the person's freedom of action was only temporarily curtailed and that a final determination of the person's status was simply delayed. DiMauro v. State, 310 Ga. App. 526, 714 S.E.2d 105 (2011).

Guest's knowledge of host-driver's intoxication.

- Mere fact that, in an action by a guest against the host-driver of an automobile in which the plaintiff was riding, it is alleged, as one of the grounds of negligence, that the host was driving the automobile under the influence of intoxicating liquors, does not require the conclusion that the plaintiff knew of such intoxication at the time plaintiff entered the automobile or in time to have avoided any injury resulting from such negligence. Stephenson v. Whiten, 91 Ga. App. 110, 85 S.E.2d 165 (1954) (decided under former Code 1933, § 68-307).

Criminality partly dependent upon place where committed.

- Since the statute makes it a misdemeanor to operate a motor vehicle while under the influence of intoxicants, upon any "public street or highway, or any private way, private street, or private property in this state," the criminality of the act depends, in part, upon the place where it is committed and, this being so, the allegation of place is material, and any variance between the allegation and the proof is fatal. Isenhower v. State, 88 Ga. App. 762, 77 S.E.2d 834 (1953) (decided under former Code 1933, § 68-307).

Proving defendant committed offense at exact point alleged.

- In a prosecution, upon a charge that the defendant in Floyd County, Georgia, drove and operated an automobile upon "a certain public street and public highway of said state and county, to wit: on U.S. Highway No. 27 at a point three miles south of Rome, Georgia," while in an intoxicated condition and while under the influence of intoxicating liquors, it was not necessary to prove that the defendant committed the offense at a point three miles south of Rome, Georgia, such allegation being mere surplusage. Robinson v. State, 76 Ga. App. 313, 45 S.E.2d 717 (1947) (decided under former Code 1933, § 68-307).

No reversal when state testified to only one breath test.

- Appeals court rejected the defendant's argument that the evidence was insufficient to support a conviction for driving under the influence of alcohol per se because only one breath test was testified to by the state and O.C.G.A. § 40-6-392(a)(1)(B) mandated that two breath tests had to be given; moreover, even if the court were to agree with this contention, the defendant waived this argument by failing to make any objection at trial to the admission of the single breath test. Annaswamy v. State, 284 Ga. App. 6, 642 S.E.2d 917 (2007).

Alco-sensor test results not admissible to demonstrate blood-alcohol content.

- Because the defendant attempted to use an alco-sensor test result to show a blood-alcohol amount, and such a result was not admissible for that purpose, but instead was used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol, the trial court did not err in excluding such evidence for the purpose sought by the defendant. Trull v. State, 286 Ga. App. 441, 649 S.E.2d 571 (2007).

Intervening failed breath test results admissible.

- Because an intervening failed breath test, due to the defendant's inability to provide an adequate sample, did not render otherwise valid breath alcohol test results inadmissible, and given that the fact of an intervening failed breath test went to the weight, not the admissibility, of the test results, suppression of the results was properly denied. Davis v. State, 286 Ga. App. 443, 649 S.E.2d 568 (2007).

Witness' observation as to person's intoxication.

- In a prosecution for operating a motor truck on the public highway while intoxicated, since the answer of a witness is that the defendant was under the influence of intoxicating liquor, the jury is authorized to say that since the observed matter in issue cannot be so fully and accurately described as to put the jury completely in the place of the testifying witness, thus enabling the jurors to draw the inference equally as well as the witness, the jury may determine the condition of the defendant from the direct testimony of the witness who observed the defendant, rather than from a subsequent description of the defendant's conduct by the witness. Grier v. State, 72 Ga. App. 633, 34 S.E.2d 642 (1945) (decided under former Code 1933, § 68-307).

In a prosecution for driving an automobile under the influence of intoxicating liquor it is proper for a witness who had, and can prove that the witness had, suitable opportunities for observation to state whether a person was intoxicated or that the witness appeared to be drinking. Spence v. State, 83 Ga. App. 588, 63 S.E.2d 910 (1951) (decided under former Code 1933, § 68-307).

Recording of 9-1-1 call.

- In a trial for driving under the influence of alcohol to the extent of being a less safe driver in violation of O.C.G.A. § 40-6-391(a)(1), admission of a recording of a9-1-1 call made by a caller who was following the defendant's vehicle was proper. Admission of the call did not violate the Confrontation Clause of the Sixth Amendment because the call's primary purpose was to prevent immediate harm to the public, not to establish evidentiary facts for a future prosecution, and the call was admissible under former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803) because the caller had not deliberated about the statement and had personal knowledge of what the caller described to the9-1-1 operator. Key v. State, 289 Ga. App. 317, 657 S.E.2d 273 (2008).

Failure to include trial transcript in record on appeal.

- Because the defendant failed to include the trial transcript in the record for the appellate court to review an order denying the defendant's motion to suppress, that court had to assume as a matter of law that the evidence presented supported the trial court's findings, and that the court properly exercised the court's judgment and discretion. Pittman v. State, 286 Ga. App. 415, 650 S.E.2d 302 (2007).

Error as to blood test results waived on appeal.

- In a prosecution for DUI, the trial court did not err in denying the defendant's motion to suppress the blood test evidence as the trial court properly allowed the discovery of notes, memoranda, graphs, or computer printouts pertaining to the blood sample taken as well as all chain of custody documentation because they were the only items deemed relevant to the prosecution; suppression of the blood test results was not required as the defendant waived error on appeal as to the absence of one of the two lab testers. Cottrell v. State, 287 Ga. App. 89, 651 S.E.2d 444 (2007), cert. denied, No. S07C1894, 2007 Ga. LEXIS 816 (Ga. 2007).

Error in admitting chemical test results harmless in light of other evidence.

- While the appeals court agreed that the trial court erred in denying the defendant's motion to suppress the results of the chemical test of the defendant's blood, the error was harmless as other evidence presented by the state, specifically the defendant's admission to being intoxicated and the testimony of other witnesses describing their observations, proved the defendant's intoxication. Harrelson v. State, 287 Ga. App. 664, 653 S.E.2d 98 (2007).

Expert testimony.

- Trial court did not err in not allowing an ophthalmologist to testify as an expert that a driving-under-the-influence defendant had two surgeries in the past, which could have affected the defendant's performance on walk-and-turn and one-leg-stand tests. The witness had no personal knowledge of the surgery in question or of the medical records referring to the surgeries; moreover, the defendant's live-in companion was permitted to testify at length regarding the defendant's medical issues arising from the surgery and the surgery's effect on the defendant's ability to walk normally at the time of the arrest. Aal v. State, 290 Ga. App. 252, 659 S.E.2d 609 (2008).

Sitting in driver's seat sufficient.

- Arresting officer's testimony that the defendant was sitting in the driver's seat of the vehicle with the keys in the ignition and the dashboard lights on when the officer arrived less than three hours before administering the breath test was sufficient to support the charge for DUI per se. State v. Gaggini, 321 Ga. App. 31, 740 S.E.2d 845 (2013).

Charge correct on witness' ability to judge intoxication.

- In a proceeding the defendant was convicted of driving under influence of alcohol, the trial court's charge that "a witness who had and was able to improve suitable opportunities for observation may state whether a person was intoxicated and the extent of his intoxication" was proper and stated a correct principle of law and there was no harmful error in the charge given. Smitherman v. State, 157 Ga. App. 526, 278 S.E.2d 107 (1981).

Language to the effect that "a witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based" is suitable for use as a jury charge. Luke v. State, 177 Ga. App. 518, 340 S.E.2d 30 (1986).

Inappropriate jury charge.

- Trial court erred in the court's charge to the jury because the charge had the effect of eliminating the jury's consideration of defendant's defense to the violation of O.C.G.A. § 40-6-391. The charge did not allow for the defendant's defense that the car's movement was "an accident" caused by the defendant's falling headfirst onto the floorboard. Virgil v. State, 227 Ga. App. 96, 488 S.E.2d 694 (1997).

It was reversible error when the judge instructed the jury that "if there was at that time an alcohol concentration of 0.08 grams or more, it shall be inferred that the person was under the influence of alcohol as prohibited by Code Section40-6-391" since, although this paraphrased the language of former subparagraph (b)(3) of O.C.G.A. § 40-6-392, it impermissibly shifted the burden to the defendant to prove the defendant's innocence of the driving under the influence charge under paragraph (a)(1) of O.C.G.A. § 40-6-391. Davis v. State, 236 Ga. App. 32, 510 S.E.2d 889 (1999).

Charge as to witness' testimony constituting fact rather than opinion.

- Charge that a witness in a driving-under-the-influence case states a fact rather than an opinion when the witness testifies that a defendant was under the influence of intoxicating liquors could easily mislead a jury to a defendant's prejudice and reversal of a conviction is required. New v. State, 171 Ga. App. 392, 319 S.E.2d 542 (1984).

Charge did not impermissibly shift burden of proof to defendant.

- Charging the jury that if a person has .12 percent or more by weight of alcohol in the person's blood while driving, that the person shall be in violation of Georgia law, did not impermissibly shift the burden of proof to the defendant. The charge created no such presumption but merely proscribed driving with a blood alcohol level of .12 percent. Koulianos v. State, 192 Ga. App. 90, 383 S.E.2d 642 (1989).

Trial court's jury charge on blood alcohol contents over .10 percent and .12 percent under former subparagraphs (b)(3) and (b)(4) of O.C.G.A. § 40-6-392, when the defendant was formally charged with violating paragraph (a)(1) of O.C.G.A. § 40-6-391, did not impermissibly shift the burden of proof and allow the jury to convict the defendant of an offense different than the one charged. Waters v. State, 195 Ga. App. 288, 393 S.E.2d 280 (1990), cert. denied, 498 U.S. 970, 111 S. Ct. 437, 112 L. Ed. 2d 420 (1990).

Trial court's instruction to the jury on the definition of blood-alcohol concentration, derived from O.C.G.A. § 40-1-1(1), did not unconstitutionally shift the burden of proof from the state to the defendant. Brannan v. State, 261 Ga. 128, 401 S.E.2d 269 (1991).

Burden of proving defendant's lung capacity was not unconstitutionally shifted to the defendant since the court considered the weight to be given to the intoximeter results as well as other evidence regarding the defendant's condition at the time of the arrest. Walker v. State, 204 Ga. App. 559, 420 S.E.2d 17, cert. denied, 204 Ga. App. 922, 420 S.E.2d 17 (1992).

Charges regarding the use of the blood to alcohol ratio have been held to be harmless so long as the charges are given in conjunction with a qualifying instruction regarding the inconclusiveness of the ratio. Therefore, the burden of proof was not shifted to the defendant. Walker v. State, 204 Ga. App. 559, 420 S.E.2d 17, cert. denied, 204 Ga. App. 922, 420 S.E.2d 17 (1992).

In a prosecution of defendant for driving under the influence, to the extent that the defendant was a less safe driver, a charge that the jury might infer that a person was under the influence of alcohol if there was a blood alcohol concentration of 0.08 grams or more was not impermissible. Animashaun v. State, 216 Ga. App. 104, 453 S.E.2d 126 (1995).

Charge to the jury that the defendant's refusal to take a requested chemical test "may be considered as positive evidence creating an inference that the test would show the presence of alcohol. However, such an inference may be rebutted" did not improperly shift the burden of proof to the defendant. Bravo v. State, 249 Ga. App. 433, 548 S.E.2d 129 (2001).

In convictions of driving while under the influence, a jury charge stating that if the jury found that the officer erred in administering or interpreting the results of a field sobriety test, the evidence was to be given only the weight deemed appropriate, did not impermissibly shift the burden of proof to the defendant to prove that the tests were wrongly administered or analyzed. Duprel v. State, 301 Ga. App. 469, 687 S.E.2d 863 (2009), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

Mandatory instruction that the influence of alcohol "shall be inferred" (rather than the permissive "may infer") was impermissibly burden-shifting; however, the erroneous charge did not require reversal since it was not relevant to any elements of the crime of driving with a blood-alcohol level in excess of the legal limit. Ellerbee v. State, 215 Ga. App. 102, 449 S.E.2d 874 (1994).

Charge in the language of O.C.G.A. § 40-6-392(b) that if the blood level exceeds certain amounts there shall be a presumption that the person was under the influence of alcohol as prohibited by provisions of subsection (a) of O.C.G.A. § 40-6-391 is impermissible burden shifting but, even if improperly given, it is not relevant to the determination of any crime defined in subsection (a) and does not require reversal. Knapp v. State, 229 Ga. App. 175, 493 S.E.2d 583 (1997).

No instruction on accident required.

- In a defendant's trial for reckless driving and driving under the influence of alcohol to the extent that it was less safe to drive, arising out of an incident in which the defendant's car spun out of control and struck another car, the trial court did not err in refusing to give a jury instruction on the defense of accident under O.C.G.A. § 16-2-2; the defendant was not entitled to a jury instruction on that affirmative defense because the defendant did not admit to driving recklessly or under the influence of alcohol to the extent that it was less safe to drive. Rutland v. State, 282 Ga. App. 728, 639 S.E.2d 628 (2006).

Trial court did not err by refusing to give the defendant's requested charge on misfortune or accident because the defendant, who was charged with driving under the influence, reckless driving, and failure to maintain lane, was not entitled to a charge that the accident was unavoidable; because the defendant did not admit to committing any act that constituted the offenses with which the defendant was charged, the defendant was not entitled to an instruction on accident. Davis v. State, 301 Ga. App. 484, 687 S.E.2d 854 (2009), cert. dismissed, No. S10C0633, 2010 Ga. LEXIS 339 (Ga. 2010).

Instruction regarding "inference" was error.

- In a prosecution for driving under the influence -- less safe driver, it was error to charge to the jury that if the jury believed the defendant's alcohol concentration was .08 percent or more "it shall be inferred" that the defendant was under the influence of alcohol, and the giving of generalized instructions regarding the state's burden and the jury's responsibilities was insufficient to overcome the mandatory nature of the instruction. Stepic v. State, 226 Ga. App. 734, 487 S.E.2d 643 (1997).

Charge required on sufficiency of circumstantial evidence.

- Entirely circumstantial evidence requires a charge on the sufficiency of circumstantial evidence to authorize the defendant's conviction in the absence of a timely written request. Lyons v. State, 90 Ga. App. 25, 81 S.E.2d 890 (1954) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Circumstantial evidence.

- In a prosecution for driving under the influence of alcohol, the defendant was entitled to defendant's requested instruction on circumstantial evidence based on a reasonable hypothesis from the defendant's use of Benadryl that the defendant was not guilty of the crime charged. Cato v. State, 212 Ga. App. 417, 441 S.E.2d 900 (1994).

In a prosecution for driving under the influence of alcohol, evidence upon which an officer based the officer's opinion that the defendant was impaired and a less safe driver was circumstantial, and the failure to give a requested charge on former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) was reversible error. Tomko v. State, 233 Ga. App. 20, 503 S.E.2d 300 (1998).

After the court read the indictment to the jury as well as the entire Code section, and when there was circumstantial evidence of marijuana metabolites in the blood, there was no reason to give so little credence to the ability of the jury to select that portion of the statute obviously applicable to the facts and issues presented for the jury's determination that a mistrial should be declared. Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999).

Right to refuse tests.

- Defendant's requested instruction regarding the defendant's right to refuse to take chemical or other tests and the exercise of that right was properly refused since other instructions relayed the same principles to the jury as covered in the requested charge. White v. State, 233 Ga. App. 276, 503 S.E.2d 891 (1998).

Horizontal gaze nystagmus test.

- Charge on the scientific efficacy of the horizontal gaze nystagmus test in a prosecution for driving under the influence was not an erroneous expression of the court's opinion in violation of O.C.G.A. § 17-8-57. Waits v. State, 232 Ga. App. 357, 501 S.E.2d 870 (1998).

Defendant's challenge to horizontal gaze nystagmus (HGN) failed, and the conviction for drunk driving was upheld on appeal, because the HGN is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol. Mullady v. State, 270 Ga. App. 444, 606 S.E.2d 645 (2004).

Charge that field sobriety tests could not be used to quantify blood alcohol properly refused.

- In the defendant's DUI trial, the trial court did not err in refusing the defendant's requested charge to the effect that the horizontal gaze nystagmus and field sobriety tests could not be used to quantify a blood alcohol content over 0.10 grams because the state trooper's testimony that "just by the field sobriety alone, it is between [a] 93 and 95 percent success rate of them being a .1 or higher on the side of the road at that particular time" was admissible and not improper. Scott v. State, 332 Ga. App. 559, 774 S.E.2d 137 (2015).

Failure to charge on the presumption on nonimpairment contained at O.C.G.A. § 40-6-392(b)(1) was not harmful as that provision did not apply to the crime of driving with a blood-alcohol level in excess of the legal limit. Ellerbee v. State, 215 Ga. App. 102, 449 S.E.2d 874 (1994).

Failure to charge that manner of driving not unsafe not error.

- It was not error to fail to charge that "it is a defense to a prosecution for driving under the influence that the person's manner of driving was not unsafe." Cunningham v. State, 221 Ga. App. 341, 471 S.E.2d 273 (1996).

Use of words "some alcohol" in jury instruction.

- In the context of the entire trial court's charge in proceeding when the defendant was convicted of driving under the influence of alcohol, the use of the word "some" in the jury instruction that "the essential ingredients of the offense are the driving or being in control of a moving vehicle by the accused at a time while under the influence of some alcohol" did not constitute harmful error since that instruction was followed by the instruction that "the operator of a motor vehicle is under the influence of alcohol when he is so affected by it as to make it less safe for him to drive, operate, or be in control of the vehicle than it would be if he were not affected by such alcohol." Smitherman v. State, 157 Ga. App. 526, 278 S.E.2d 107 (1981).

Although the word "some" is not found in O.C.G.A. § 40-6-391, the trial court does not err in charging that in order to find the defendant guilty, the jury must find "that at the time and place, he was under the influence of some intoxicating beverages." Jones v. State, 168 Ga. App. 106, 308 S.E.2d 209 (1983).

Charge on affect of alcohol appropriate.

- Charge that the jury had to find "that the operator of a motor vehicle is under the influence of alcohol when he or she is so affected by the alcohol as to make that person a less safe driver than they would have been had they not consumed any alcohol at all" was a correct statement of law. Brownlee v. State, 225 Ga. App. 311, 483 S.E.2d 370 (1997).

Charge on effect of alcohol not required.

- Trial court did not err in refusing to give the defendant's requested jury instruction that, to convict the defendant of driving under the influence of alcohol to the extent that it was less safe to drive in violation of O.C.G.A. § 40-6-391(a)(1), the defendant had to be so affected by the alcohol that the alcohol adversely affected the defendant's operation of the motor vehicle; § 40-6-391(a)(1) did not require that the defendant actually committed an unsafe act in order to be convicted of violating the statute. Moran v. State, 257 Ga. App. 236, 570 S.E.2d 673 (2002).

Non-moving vehicle.

- It is not error to refuse to give a charge that "a defendant cannot be convicted of driving under the influence for operating a non-moving vehicle." Melendy v. State, 202 Ga. App. 638, 415 S.E.2d 62 (1992).

Charging defendant for operating nonmoving vehicle.

- Former proscription against merely operating a vehicle while under the influence of intoxicating liquor has been replaced by a proscription against driving or being "in actual physical control of any moving vehicle" while under the influence of alcohol or drugs; thus, a jury charge indicating the defendant could be convicted for operating a nonmoving vehicle was in error. Carr v. State, 169 Ga. App. 679, 314 S.E.2d 694 (1984).

Charge allowing conviction for nonmoving vehicle correct.

- Court's failure to give a jury charge on the requirement that a driver be in actual physical control of a moving vehicle while under the influence of alcohol is proper when the court charges the jury on the subject matter of the requested charge and when the requested charge is argumentative and an incorrect interpretation of the law. Phillips v. State, 185 Ga. App. 54, 363 S.E.2d 283 (1987).

Court properly denied defendant's instruction on involuntary intoxication since, although the defendant produced evidence that the defendant was not aware that a prescribed medication could affect the defendant's ability to drive, there was no evidence that the defendant did not have sufficient mental capacity to distinguish between right and wrong by reason of the defendant's intoxication. Flanders v. State, 188 Ga. App. 98, 371 S.E.2d 918 (1988).

Charge on greater offense only.

- Trial court properly refused to give a charge on reckless driving submitted by the defendant when the uncontradicted evidence showed completion of the greater offense of driving under the influence so that the charge on the lesser offense was not required. Howard v. State, 182 Ga. App. 403, 355 S.E.2d 772 (1987).

In convictions of driving while under the influence, a jury charge for the lesser included offense of attempted DUI was not required because the evidence showed the commission of the completed offense. Duprel v. State, 301 Ga. App. 469, 687 S.E.2d 863 (2009), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

Charge as to criminal intent.

- Because a defendant was charged with driving under the influence, the trial court properly instructed the jury that criminal intent had to be proved by the state in every prosecution and that criminal intent did not mean an intention to violate the law or to violate a penal statute, but simply meant to intend to commit the act which was prohibited by statute. Viewed in the statute's entirety, the charge was sufficient to inform the jury that the jury had to find that the defendant intended to evade the duty imposed by O.C.G.A. § 40-6-391 and that the jury had to find that the defendant knowingly drove while under the influence. Cornwell v. State, 283 Ga. 247, 657 S.E.2d 195 (2008).

In a prosecution for driving with an alcohol concentration greater than 0.08 grams, O.C.G.A. § 40-6-391(a)(5), a jury instruction that the state did not have to prove that the defendant intended to drive under the influence, nor that the defendant knew that the defendant was doing so, was proper viewed in the context of the charge as a whole which stated that criminal intent meant the intent to do the act which resulted in a violation of the law. Goethe v. State, 294 Ga. App. 232, 668 S.E.2d 859 (2008).

Jury in a defendant's trial for DUI in violation of O.C.G.A. § 40-6-391(a) was correctly charged that the defendant's intent to drive while intoxicated was immaterial because the evidence was undisputed that the defendant intentionally ingested alcohol, Xanax, and Ambien, then drove in an intoxicated state in the defendant's pajamas, although the defendant did not remember driving. Myers v. State, 302 Ga. App. 753, 691 S.E.2d 650 (2010).

Incomplete charge.

- Trial court's charge to the jury "that a person shall not drive or be in actual physical control of any motor vehicle while under the influence of alcohol" was harmfully incomplete because the charge did not inform the jury that being under the influence of alcohol meant that consumption of alcohol had rendered the person a less safe driver. Taylor v. State, 184 Ga. App. 368, 361 S.E.2d 667, cert. denied, 184 Ga. App. 911, 361 S.E.2d 667 (1987).

Totality of charges were deemed adequate.

- Because, in their totality, the jury charges given by the trial court covered substantially and adequately the principles contained in the two requested instructions cited by the defendant, the trial court did not err in refusing to give them in the exact language the defendant requested; hence, the appeals court rejected the defendant's contention that the jurors were left with insufficient guidance to evaluate the blood tests results or the quality of the blood test chain of custody. Steinberg v. State, 286 Ga. App. 417, 650 S.E.2d 268 (2007), cert. denied, No. S07C1725, 2008 Ga. LEXIS 113 (Ga. 2008).

Charging entire section.

- Given defendant's crime scene admission of driving under the influence, there was no reasonable probability that the jury convicted the defendant of the offenses upon a basis not charged in the accusation; accordingly, that the superior court charged O.C.G.A. § 40-6-391(a) as a whole was no more than harmless error under the circumstances. Marryott v. State, 263 Ga. App. 65, 587 S.E.2d 217 (2003).

Crime committed prior to indictment.

- Trial court did not err in instructing that the jury could find the defendant guilty if the jury found the defendant committed the charged offenses "at any time within two years immediately preceding the date of the swearing out of" the charges. Horner v. State, 240 Ga. App. 1, 522 S.E.2d 483 (1999).

Superfluous language in jury charge not harmful.

- Although jury instructions concerning being a less safe driver under paragraph (a)(1)-(3) of O.C.G.A. § 40-6-391 and the inferences listed in O.C.G.A. § 40-6-392(b)(1) (see now O.C.G.A. § 40-6-392(b)(1), (2)) are superfluous in a prosecution under § 40-6-391 for driving while under the influence by having .12 percent or more alcohol in the blood, the additional language is not harmful when the jury is informed of the legal ramifications of a blood-alcohol content of over .12 percent and there is evidence that the defendant's blood-alcohol content was greater than .12 percent. Courson v. State, 184 Ga. App. 793, 363 S.E.2d 41 (1987).

Since the defendant was charged with driving under the influence by having 0.1 percent or more by weight of alcohol in the defendant's blood, jury instructions concerning being a less safe driver and the inferences derived therefrom were superfluous; however, since the jury was also informed of the legal ramifications of a blood-alcohol content of over 0.1 percent and there was evidence that the defendant's blood-alcohol content was greater than 0.1 percent, the additional language in the charge was not harmful to the defendant. Frazier v. State, 267 Ga. App. 682, 601 S.E.2d 145 (2004).

Repeated portions of jury charges covering legal principles relating to two different counts for which the defendant was prosecuted under O.C.G.A. § 40-6-391 did not confuse or mislead the jury or in any manner result in an unfair statement of the law. Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (1996).

"Recharge" not error.

- Repetition of a sentence from paragraph (a)(5) (now (a)(6)) of O.C.G.A. § 40-6-391 in response to a jury request for such did not serve to prejudice the minds of the jury, requiring no reversal. Hill v. State, 207 Ga. App. 65, 426 S.E.2d 915 (1993).

Burden of proof.

- Trial court did not err by charging that the prosecution was not required to prove the prosecution's case to a mathematical certainty under paragraph (a)(4) of O.C.G.A. § 40-6-391 since the jury was not misled by a charge instructing the jury that the state was required to prove each material allegation of the accusation and every essential element of the crime beyond a reasonable doubt before the defendant could be convicted of the charge. Brown v. State, 201 Ga. App. 441, 411 S.E.2d 286 (1991).

Special verdict.

- When an accusation was drawn in the conjunctive, charging the defendant with being a less safe driver and with having a blood alcohol count over 0.10, providing a verdict form that listed separately each of the two methods by which the defendant was accused of violations and instructing the jury to indicate "guilty" or "not guilty" as to each method, such verdict form was not a request for a special verdict in violation of O.C.G.A. § 17-9-2. Dean v. State, 232 Ga. App. 390, 501 S.E.2d 895 (1998).

Preliminary instruction was harmless error.

- Trial court erred in mentioning the excluded results of a breath test when instructing the jury because the preliminary instruction was both unnecessary and improper, but the error was harmless; there was no reasonable probability that the preliminary instruction impacted the jury's verdict because the jury was presented with overwhelming evidence that the defendant was a less-safe driver including: (1) a video of the traffic stop, which showed the defendant's less-than-stellar performance on the field sobriety tests, the defendant's difficulty following instructions, and the defendant's occasionally belligerent demeanor; (2) the defendant's admission to consuming alcohol; (3) the officer's testimony regarding the defendant's traffic violation, the officer's observations during the stop, and the positive results of the alco-sensor test; and (4) similar-transaction evidence. Hale v. State, 310 Ga. App. 363, 714 S.E.2d 19 (2011).

Correct jury charge.

- When the court charged the jury: "If you find . . . that the defendant was . . . at the time of the operation of such automobile, under the influence of intoxicating liquors to the extent that it rendered his operation of such automobile less safe, then he would be deemed to be under the influence of intoxicating liquors," this is a correct statement of the law. Maxwell v. State, 97 Ga. App. 334, 103 S.E.2d 162 (1958) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Equal protection clause was not violated in charging the jury to convict if the defendant was under the influence of alcohol to the extent that it was "less safe" for defendant to drive, rather than if defendant was "rendered incapable of driving safely"; the standards were legally equivalent. Johnson v. State, 268 Ga. App. 426, 602 S.E.2d 177 (2004).

Trial court did not err in giving jury instructions in defendant's trial for DUI as an unsafe driver, in violation of O.C.G.A. § 40-6-391(a)(1), and in refusing to give the defendant's requested jury instruction as the charge by the court did not differ in substance from that requested by the defendant, and the standard used for offenses under O.C.G.A. § 40-6-391(b) had been held "equivalent," such that there was no disparate treatment suffered by the defendant when the court gave the "less safe" jury charge rather than the "rendered incapable of driving safely" jury charge. Drogan v. State, 272 Ga. App. 645, 613 S.E.2d 195 (2005).

Trial court properly charged the jury with respect to driving under the influence that "a person (should) not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it (was) less safe for that person to drive." Furlow v. State, 276 Ga. App. 332, 623 S.E.2d 186 (2005).

In a prosecution for driving with an alcohol concentration greater than 0.08 grams, O.C.G.A. § 40-6-391(a)(5), the trial court properly instructed the jury that equipment used to measure alcohol content that was approved by the Georgia State Crime Lab was considered accurate if properly operated as this was simply an explanation of O.C.G.A. § 40-6-392(a)(1)(A). Goethe v. State, 294 Ga. App. 232, 668 S.E.2d 859 (2008).

Trial court did not err in charging the jury during the defendant's trial for driving under the influence of alcohol to the extent that it was less safe for the defendant to drive because the challenged charge immediately followed a proper charge regarding the implications of a defendant's refusal to submit to tests, and the defendant failed to show what harm the defendant suffered as the result of the giving of the jury instruction; the charge was adjusted to the evidence because the testimony adduced at trial showed that the defendant was speeding immediately prior to the defendant's arrest, and the charge properly left the determination of whether the defendant was impaired in the hands of the jury. Crusselle v. State, 303 Ga. App. 879, 694 S.E.2d 707 (2010).

Trial court did not err in refusing to give the defendant's requested charges concerning the reliability and possible malfunctioning of breath testing machines because the trial court's general charge on the state-administered test adequately instructed the jury on the fallibility of those machines. Holowiak v. State, 308 Ga. App. 887, 709 S.E.2d 39 (2011), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011), vacated in part, 316 Ga. App. 328, 729 S.E.2d 486 (2012).

Jury instruction for serious injury by vehicle as given was not plain error because the charge that the defendant's counsel requested was substantially similar to the charge that the trial court gave; the trial court charged the jury that no person could be convicted of any crime unless and until each element of the crime as charged was proven beyond a reasonable doubt; and a conviction under the serious injury by vehicle statute as charged did not require a conviction under the driving under the influence statute. Fitzpatrick v. State, 339 Ga. App. 135, 793 S.E.2d 446 (2016).

Charges that were not misleading or confusing were not reversible error.

- Failure to instruct on issues that were not material to the case and slips of the tongue in instructions that did not clearly mislead or confuse the jury were not reversible error regarding the defendant's convictions for driving while under the influence of alcohol to the extent that the defendant was a less safe driver. Worthman v. State, 266 Ga. App. 208, 596 S.E.2d 643 (2004).

Defendant's less-safe DUI conviction was upheld on appeal as a jury charge on criminal intent, and the trial court's use of the term "sober," was not confusing or erroneous, and the appeals court refused to speculate that the instruction led the jury to believe that it could convict based on the defendant's consumption of any amount of an alcoholic beverage. McWilliams v. State, 287 Ga. App. 585, 651 S.E.2d 849 (2007).

In convictions of driving while under the influence, a jury charge did not create ambiguity and confusion, requiring reversal, by using the word "anywhere" rather than the word "elsewhere" because under O.C.G.A. § 40-6-3(a)(3), the provisions of O.C.G.A. § 40-6-391 applied anywhere in Georgia. Duprel v. State, 301 Ga. App. 469, 687 S.E.2d 863 (2009), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

Trial court did not err in refusing to charge the jury that the presence of alcohol in the body did not support an inference that the defendant was impaired and that the jury had to evaluate evidence of how a preexisting condition could affect physical appearance or performance on roadside sobriety evaluations because the trial court's charges did not mislead or confuse the jury, nor did the trial court commit error by declining to give the defendant's requested charges; the trial court instructed the jury that DUI per se required no proof of impairment, which substantially covered the same principle contained in one of the defendant's requested charges, and the trial court adequately covered the evidentiary principles underlying the defendant's other requested charge in the court's general instructions regarding the definition of evidence, how to evaluate conflicting evidence, and impeachment. Holowiak v. State, 308 Ga. App. 887, 709 S.E.2d 39 (2011), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011), vacated in part, 316 Ga. App. 328, 729 S.E.2d 486 (2012).

Contingent jury charges on first- and second-degree vehicular homicide upheld.

- Trial court did not err in charging the jury on vehicular homicide, specifically explaining that if the jury found the defendant guilty of either DUI or reckless driving, and if the jury also found the defendant guilty of vehicular homicide, it followed that the defendant had to be guilty of first-degree, and not second-degree, vehicular homicide. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).

Justification and accident instructions not warranted.

- In a prosecution for driving under the influence and making an improper lane change, because the defendant did not request instructions on accident and justification, the trial court did not err in failing to give the instruction; moreover, because the jury was charged on involuntary intoxication, the failure to charge on accident was not harmful as a matter of law. Walker v. State, 280 Ga. App. 393, 634 S.E.2d 177 (2006).

Disclosure by jury of section upon which verdict based.

- There was no error in the court's failure to instruct the jury to disclose whether their guilty verdicts (of vehicular homicide) were premised upon the defendant's violation of O.C.G.A. § 40-6-390 or O.C.G.A. § 40-6-391, or both, since there was evidence to warrant the jury's finding of a violation of either section, or both. Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980).

Refusal not evidence of the presence of alcohol.

- Trial court erred in instructing the jury that the defendant's refusal to submit to a chemical test of defendant's breath could be considered as positive evidence creating an inference that the test would show the presence of alcohol or other prohibited substances which impaired the defendant's driving as the instruction improperly allowed the jury to infer impaired driving from the mere presence of alcohol; the error was not harmless since the evidence of impairment was not overwhelming and since the charge could have misled the jury into thinking that the state met the state's burden of proving impaired driving under O.C.G.A. § 40-6-391(a)(1) simply by showing the refusal of chemical testing. Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003).

Intoxication by toxic vapors instruction.

- Trial court did not improperly instruct the jury on each of the elements of O.C.G.A. § 40-6-391, including intoxication by toxic vapors, as the charge stated the law accurately, and the complained-of language concerning toxic vapors was mere surplusage. Rylee v. State, 288 Ga. App. 784, 655 S.E.2d 239 (2007).

Merger with endangering a child prohibited.

- Despite the defendant's contrary contention, the trial court did not err in failing to merge a DUI conviction with a conviction for endangering a child by DUI for the purposes of prosecution and sentence as O.C.G.A. § 40-6-391(l) specifically prohibited the merger, and O.C.G.A. § 16-12-1(d) provided independent provisions for punishment. Slayton v. State, 281 Ga. App. 650, 637 S.E.2d 67 (2006).

With regard to a defendant's convictions for reckless driving, less safe driving while intoxicated (DUI), and child endangerment by DUI, the trial court properly refused to merge the two counts for sentencing purposes because O.C.G.A. § 40-6-391 unambiguously prevented merger and the rule of lenity did not apply since the two code provisions did not prohibit the same conduct. Monahan v. State, 292 Ga. App. 655, 665 S.E.2d 387 (2008).

Enhanced sentencing provisions not applied retroactively.

- Defendant, who committed a DUI offense on November 11, 1990, was improperly subjected to the enhanced sentencing provisions contained in subparagraph (c)(3)(A) of O.C.G.A. § 40-6-391, which did not become effective until January 1, 1991. Holtapp v. City of Fayetteville, 208 Ga. App. 606, 431 S.E.2d 403 (1993).

Construed with

§ 40-5-63(a). - O.C.G.A. § 40-5-63(a) effectuates suspension or revocation of a driver's license automatically upon a conviction for driving under the influence, notice of suspension being the trial for the driving offense. Eppinger v. State, 236 Ga. App. 426, 512 S.E.2d 320 (1999).

O.C.G.A. § 40-6-391(c) is not an enhanced penalty statute because the statute neither increases the maximum confinement authorized nor converts a misdemeanor offense into a felony. Thus, consideration of a person's prior uncounseled convictions for driving under the influence of alcohol in determining an appropriate sentence does not violate any constitutional right to counsel. Moore v. State, 181 Ga. App. 548, 352 S.E.2d 821, cert. denied, 484 U.S. 904, 108 S. Ct. 247, 98 L. Ed. 2d 204 (1987).

Sentence for single violation after more than one conviction.

- Jury may find a defendant guilty of violating both paragraphs (a)(1) and (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 based on a single incident, but a defendant can be sentenced for only one DUI violation. Tomlin v. State, 184 Ga. App. 726, 362 S.E.2d 489 (1987).

Court erred in entering convictions and sentencing the defendant on two DUI charges, under paragraphs (a)(1) and (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 since both charges were predicated on the same conduct. O'Dell v. State, 200 Ga. App. 655, 409 S.E.2d 54, cert. denied, 200 Ga. App. 896, 409 S.E.2d 54 (1991).

Following convictions of defendant on two DUI charges, under paragraphs (a)(1) and (a)(5) of O.C.G.A. § 40-6-391, because it was apparent from the transcript that for purposes of sentencing the trial judge considered the charges alternative and sentenced the defendant for only one offense, the "per se" DUI conviction was vacated and the "less safe" DUI conviction affirmed, with no remand. Hewett v. State, 244 Ga. App. 112, 534 S.E.2d 867 (2000).

O.C.G.A. § 40-6-391(a) establishes a single crime of driving under the influence (DUI) and § 40-6-391(a)(1) through (a)(5) merely define different ways of committing that one crime. Thus, a defendant who was found guilty of violating both § 40-6-391(a)(1) and (a)(5) could only be convicted and sentenced for one DUI violation. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. 2009).

Defendant was prosecuted and found guilty for violating both O.C.G.A. § 40-6-391(a)(1) and (a)(5) but could only be convicted and sentenced for one driving under the influence (DUI) violation; thus, the defendant's conviction for DUI per se was reversed and resentencing was ordered. Smith v. State, 338 Ga. App. 635, 791 S.E.2d 418 (2016).

High misdemeanor charge requires previous convictions within five years.

- State lacked statutory authority to charge a high and aggravated misdemeanor because both of the defendant's previous DUI convictions were not within five years of the present charge. State v. Bangley, 209 Ga. App. 208, 433 S.E.2d 372 (1993).

High misdemeanor charge required.

- Defendant's third conviction within five years for driving under the influence was classified as a high and aggravated misdemeanor, and the defendant could not be sentenced to imprisonment in the state penal system. Floyd v. State, 227 Ga. App. 873, 490 S.E.2d 542 (1997).

Merger into vehicular homicide.

- Defendant's reckless driving, red light, and less safe driving under the influence convictions merged into the defendant's reckless vehicular homicide convictions, which involved two deaths resulting from the defendant's striking a car; however, the failure to exercise due care conviction involving the defendant's striking a pedestrian did not merge into the vehicular homicide conviction as the acts leading to the two charges involved different facts and different victims. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).

Lesser included driving under the influence predicate offense could not stand as a separate conviction because the appellant had been convicted of vehicular homicide. Dickson v. State, 339 Ga. App. 500, 793 S.E.2d 663 (2016).

When offenses merge, later conviction vacated.

- When the offenses charged under paragraphs (a)(1) and (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 were based on the same conduct, the offenses merged under the substantive double jeopardy rule, which limits multiple convictions or punishments for crimes arising from the same criminal conduct, requiring vacating of the conviction obtained under paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391. Hoffman v. State, 208 Ga. App. 574, 430 S.E.2d 886 (1993).

Harmless error because of merger.

- Defendant's count for driving under the influence (DUI) less safe, in violation of O.C.G.A. § 40-6-391(a)(1), was merged into the defendant's DUI per se conviction. In light of the merger, the DUI less safe count was void and any error as to that count was harmless. Greene v. State, 312 Ga. App. 666, 722 S.E.2d 77 (2011), cert. denied, No. S12C0516, 2012 Ga. LEXIS 670 (Ga. 2012).

Error in sentencing defendant on lesser offenses.

- Trial court erred in sentencing the defendant on the lesser offenses of reckless driving and driving under the influence while the trial court also sentenced the defendant on the greater offense of homicide by vehicle in the first degree, which included the lesser offenses. Had the jury revealed which of the lesser offenses served as the foundation for the homicide verdict a sentence on the remaining lesser offense might have been appropriate, but as such information did not appear in the record the defendant may not be sentenced for either of the lesser included offenses of violation of O.C.G.A. §§ 40-6-390 and40-6-391. McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986).

Trial court properly considered mitigating and aggravating circumstances brought to the court's attention for purposes of imposing sentence within the range of punishment allowed by this statute, including driving history, which included several prior misdemeanor traffic accusations to which the defendant had pled guilty even though the defendant had never served time in confinement as a result of those pleas. Dotson v. State, 179 Ga. App. 233, 345 S.E.2d 871 (1986).

In sentencing the defendant on a charge of driving under the influence, a sentence within the range permitted for the first conviction within the previous five years was authorized, and the court properly reviewed the defendant's entire driving record, including two prior DUI convictions that did not occur within the past five years along with three other traffic violations within five years, before accepting the defendant's plea of nolo contendere. Millwood v. State, 213 Ga. App. 419, 447 S.E.2d 343 (1994).

Duty of court to seize license and temporary permit pending appeal.

- Upon conviction for driving under the influence, the defendant was properly required to surrender the defendant's driver's license and temporary permit to the trial court pending appeal; the seizure and forwarding of the license to the Department of Public Safety was not part of the defendant's sentence or a condition of defendant's bond but a requirement imposed by statute on the court. Wells v. State, 212 Ga. App. 15, 440 S.E.2d 692 (1994).

First offender treatment unavailable.

- Phrase "relating to probation of first offenders" in O.C.G.A. § 40-6-391(f) refers to the general title of O.C.G.A. Art. 3, Ch. 8, T. 42, and does not purport to limit the prohibition of first offender treatment only to convictions for driving under the influence when probation is imposed. Sims v. State, 214 Ga. App. 443, 448 S.E.2d 77 (1994).

O.C.G.A. § 40-6-391(f) did not violate equal protection under the Fourteenth Amendment or Ga. Const. 1983, Art. I, Sec. I, Para. II by excluding DUI offenses from First Offender Act, O.C.G.A. § 42-8-60 et seq., coverage. The defendant did not show the absence of a rational relationship between the state's compelling interest in protecting the public's safety and the classification; the defendant's equal protection argument boiled down to no more than the claim that the legislature made a bad policy judgment about which offenders should be eligible for First Offender Act treatment. Rhodes v. State, 283 Ga. 361, 659 S.E.2d 370 (2008).

Sentence to serve 24 hours in jail.

- Since, under a plea agreement, the defendant pled guilty to driving while a less safe driver and the state nolle prosequied the charge of driving with an alcohol concentration (BAC) of 0.10 or greater, the trial court was required to sentence the defendant to serve at least 24 hours in jail pursuant to subparagraph (c)(1)(B) of O.C.G.A. § 40-6-391 because there was lawful evidence that the defendant drove with a BAC greater than .10. Phillips v. State, 241 Ga. App. 689, 527 S.E.2d 283 (1999).

Fines.

- Because the defendant's fine was not assessed as a condition of probation, but as a part of the defendant's DUI sentence, the trial court did not err in denying the defendant's motion to negate or suspend the fine when the defendant's probation was revoked. Rouse v. State, 256 Ga. App. 579, 569 S.E.2d 261 (2002).

Since no fine was imposed on the driving under the influence offense that violated O.C.G.A. § 40-6-391, the $100 brain/spinal cord fee imposed under O.C.G.A. §§ 15-21-149 and15-21-150 and the $25 driving under the influence victim surcharge imposed under O.C.G.A. §§ 15-21-110 and15-21-112(a) should not have been imposed under O.C.G.A. §§ 15-21-112 and15-21-149(a) because those were contingent upon the imposition of a fine. Johnson v. State, 282 Ga. App. 258, 638 S.E.2d 406 (2006).

Crime lab fee of $25 should not have been imposed under O.C.G.A. § 42-8-34(d)(2) in the driving under the influence case under O.C.G.A. § 40-6-391 because the defendant was not sentenced to probation on the driving under the influence count. Johnson v. State, 282 Ga. App. 258, 638 S.E.2d 406 (2006).

Sentence proper.

- Sentence of 12 months' probation, a $1,000 fine, and 300 hours of community service is within the limits established by O.C.G.A. § 40-6-391 for driving under the influence of alcohol. Cothran v. State, 177 Ga. App. 58, 338 S.E.2d 513 (1985).

When the defendant pled guilty to two counts each of driving under the influence of alcohol (DUI) and driving with a suspended license, and one count each of driving without proof of insurance, improper lane usage, unlawful use of a license, giving a false name, impeding traffic, and violation of a county open container ordinance, and was sentenced on the DUI counts to a 12-month consecutive term, a $1,000 fine, and a $25 assessment for costs of publishing defendant's photo and, on the remaining charges, to concurrent 12-month terms and a $200 fine for driving without proof of insurance, the sentence was not unconstitutionally excessive. McClure v. State, 218 Ga. App. 365, 460 S.E.2d 884 (1995).

Sentence of 30 days in custody, 11 months probation, 40 hours of community service, and fines totaling $2,000 on conviction of driving under the influence of alcohol, driving with an unlawful alcohol concentration, and failure to maintain lane was not excessive. Gidey v. State, 228 Ga. App. 250, 491 S.E.2d 406 (1997).

Absent inclusion of a record and an express authority to the contrary, the trial judge was authorized to impose attendance at the Chatham County DUI court treatment program as a condition of the defendant's probation; further, the imposition was not a denial of the defendant's equal protection rights in that nonresidents were not required to attend, especially and in light of the fact that the defendant failed to show any evidence to show the genesis, nature, or content of the program of which the defendant complained. Kellam v. State, 271 Ga. App. 125, 608 S.E.2d 729 (2004).

Defendant's sentence was not excessive because the trial court orally sentenced the defendant to a combination of 100 days of confinement, 60 days of house arrest, and 12 months of probation for misdemeanor driving under the influence; an oral declaration of a sentence was not the sentence of the court and the sentence signed by the trial court properly sentenced the defendant to confinement for 12 months (to serve 100 days) and the remainder probated (60 days thereof in house arrest). Kimbrell v. State, 280 Ga. App. 867, 635 S.E.2d 237 (2006).

House arrest insufficient.

- Upon the defendant's conviction for driving under the influence of alcohol, the trial court erred by not sentencing the defendant to at least 72 hours confinement as required by O.C.G.A. § 40-6-391(c)(2)(B), and house arrest was not incarceration, as such limited confinement did not constitute a continuous and uninterrupted custody in a jail or penitentiary. Pierce v. State, 278 Ga. App. 162, 628 S.E.2d 235 (2006).

Sentence improper.

- Since the court could not determine from the record whether the trial court imposed a permissible fine plus permissible costs and penalties, or whether an impermissible fine was in fact imposed, and because any uncertainty or ambiguity ought to be resolved in favor of imposing the lesser penalty, the portion of the fine in excess of the $1,000 maximum was vacated. Morgan v. State, 212 Ga. App. 394, 442 S.E.2d 257 (1994).

Sentence of 10 days in jail followed by 12 months probation for conviction of driving under the influence was improper. Kovacs v. State, 227 Ga. App. 870, 490 S.E.2d 539 (1997).

Sentence imposed under O.C.G.A. § 40-6-391(a)(5) for driving a moving vehicle while defendant's alcohol concentration was more than 0.10 grams had to be vacated as the trial court neither merged that count into the other charged count nor indicated to which count the court's sentence applied; thus, the sentence imposed under that section was improper. Schoolfield v. State, 251 Ga. App. 52, 554 S.E.2d 181 (2001).

Because the trial court erred in failing to sentence a defendant to the mandatory minimum period of imprisonment of 24 hours, as specified by O.C.G.A. § 40-6-391(c)(1)(B), the sentence imposed was vacated, and a resentencing was ordered. State v. Dyer, 275 Ga. App. 657, 621 S.E.2d 615 (2005).

Given that a charge of DUI served as the predicate act underlying a charge of serious injury by vehicle, thus constituting a lesser included crime of the serious injury by vehicle, O.C.G.A. § 16-1-7(a) barred conviction of and punishment for both; hence, in light of this incongruence, defendant's DUI conviction and sentence, as well as the sentence for serious injury by vehicle, were vacated. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006).

Sentence for homicide by vehicle.

- Upon conviction of the defendant of three counts of homicide by vehicle (O.C.G.A. § 40-6-393) through a violation of O.C.G.A. § 40-6-391, it was not a violation of double jeopardy to sentence the defendant to 15 years for each of the homicide counts. Cox v. State, 243 Ga. App. 668, 533 S.E.2d 435 (2000).

DUI acquittal/vehicular homicide conviction.

- Acquittal on a secondary charge of driving while under the influence of drugs did not preclude conviction for vehicular homicide by reckless driving since sufficient facts were otherwise advanced showing the defendant had attempted to pass in a no-passing lane and was driving on the wrong side of the road. Hill v. State, 207 Ga. App. 65, 426 S.E.2d 915 (1993).

Consecutive sentence/other offenses.

- In sentencing defendant on conviction of two counts of endangering a child, the court erred in imposing sentences of 12 months on the first count, consecutive to defendant's 12-month sentence for driving under the influence, and, on the second count, 12 months' probation consecutive to the sentence on the first count. Guest v. State, 229 Ga. App. 627, 494 S.E.2d 523 (1998).

Sentencing upon multiple convictions.

- Trial court erred in sentencing the defendant to three consecutive twelve month sentences for defendant's three driving under the influence convictions. Taylor v. State, 238 Ga. App. 753, 520 S.E.2d 267 (1999).

Trial court properly sentenced the defendant to a term of imprisonment for 12 months as the instant offense was the defendant's third driving under the influence (DUI) in five years, and the defendant's thirteenth DUI overall, and O.C.G.A. § 40-6-391(c)(3) mandated that for a third or subsequent driving under the influence violation within a five-year period, an individual would be punished by a mandatory period of imprisonment of not less than 120 days nor more than 12 months. Branton v. State, 258 Ga. App. 221, 573 S.E.2d 475 (2002).

DUI probation convictions on non-DUI offenses.

- Special probation conditions requiring that the defendant complete a driving under the influence risk reduction course under O.C.G.A. § 40-6-391(c), perform 40 hours of community service under O.C.G.A. § 40-6-391(c), and pay a $25 photograph fee under O.C.G.A. § 40-6-391(j)(1), (2) were not an abuse of discretion despite the fact that the conditions of probation were not imposed upon the defendant's driving under the influence conviction, for which probation was not imposed, but were instead imposed on the defendant's sentence of probation on the related convictions; while the defendant claimed that the conditions were peculiar to a driving under the influence conviction, the conditions were reasonably related to the nature of the offenses and the rehabilitative goals of probation pursuant to O.C.G.A. § 42-8-35 as all of the conditions had rehabilitative value, the photograph fee also served the purpose of protection of society, and the driving under the influence course was relevant since the defendant was sentenced to a driving under the influence charge in the same case and had a lengthy driving under the influence history. Johnson v. State, 282 Ga. App. 258, 638 S.E.2d 406 (2006).

Imposition of ignition interlock device on second-time DUI offender mandatory.

- O.C.G.A. § 42-8-111 is plain and susceptible of only one natural and reasonable construction, and that is that "shall" means that there is no discretion in the trial court to consider whether to impose an ignition interlock device as a condition of probation for a second time DUI offender, absent a showing of financial hardship; accordingly, a trial court erred in not imposing that condition of probation on the defendant, who had previously been convicted of a DUI offense and who entered a negotiated plea to driving under the influence of alcohol to the extent that the defendant was a less safe driver in violation of O.C.G.A. § 40-6-391(a)(1). State v. Villella, 266 Ga. App. 499, 597 S.E.2d 563 (2004).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1953, Nov.-Dec. Sess., p. 556, are included in the annotations for this Code section.

Time of applicability.

- Provisions of O.C.G.A. § 40-6-391 which merely provide new trial procedures may be applied to all cases tried on or after September 1, 1983, regardless of when the violations occurred. All other provisions can be applied only to defendants whose alleged illegal conduct occurred on or after September 1, 1983. 1983 Op. Att'y Gen. No. U83-52.

Venue.

- Motorist is subject to charges of violating Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-391) wherever in Georgia the motorist happens to be operating a motor vehicle while the motorist is intoxicated, including on a federal military installation, provided, of course, that federal law does not preempt the operation of state and local laws. 1976 Op. Att'y Gen. No. 76-13.

Right to counsel.

- Defendants who receive active sentences in accordance with subsection (c) of O.C.G.A. § 40-6-391 are constitutionally entitled to counsel, but may voluntarily waive this right. 1984 Op. Att'y Gen. No. U84-2.

Suspension or cancellation of licenses of those convicted.

- Although not authorized under Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-391) or former Code 1933, § 27-2506 (see now O.C.G.A. § 17-10-3) to suspend or cancel licenses of those convicted of driving under the influence of drugs or intoxicants, a judge may still do so by virtue of authority granted in former Code 1933, § 92A-9908; furthermore, a judge may sentence a defendant to either, but not both, a suspended or probated sentence, which may be properly conditioned upon payment of a fine. 1974 Op. Att'y Gen. No. U74-78 (see O.C.G.A. § 40-5-54).

Judge may probate fine and sentence.

- That portion of subsection (c) of Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-391) which used the word "shall," authorizing the imposition of a 90-day penalty, was mandatory and cannot be construed to mean that the court is vested with discretion in imposing the minimum 90-day sentence; however, former Code 1933, § 27-2506 (see now O.C.G.A. § 17-10-3), relating to punishment of misdemeanors, permitted a judge to impose, in addition to or instead of any other penalty provided for the punishment of a misdemeanor involving a traffic offense, probation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge; therefore, a judge imposing sentence pursuant to subsection (c) may probate either the fine or the sentence, as well as both the fine and the sentence. 1974 Op. Att'y Gen. No. U74-102 (rendered prior to 1983 amendment).

Shortest serveable jail term.

- Shortest period of imprisonment which must actually be served in jail pursuant to subsection (c) of O.C.G.A. § 40-6-391 is that period of time which may not be suspended, stayed, or probated according to the statute. 1984 Op. Att'y Gen. No. U84-2.

Probation for violations of local ordinances.

- Municipal and recorder's courts are without authority to place individuals on state supervised probation for violations of local ordinances adopting the provisions of O.C.G.A. § 40-6-391, although probate courts hearing cases brought pursuant to the state statute do have the power to probate as a limited exception to the prohibition of O.C.G.A. § 42-8-34. 1983 Op. Att'y Gen. No. 83-73.

Payment of fine.

- Defendant is obligated to pay the total amount of the defendant's fine imposed pursuant to subsection (c) of O.C.G.A. § 40-6-391, regardless of the length of the sentence of imprisonment imposed contemporaneously or the portion of that sentence of imprisonment which is actually served in jail. 1984 Op. Att'y Gen. No. U84-2.

Person who removes intoxicated driver from the scene before the officers can investigate can be charged as an accessory after the fact and as a principal in the crime of driving under the influence of intoxicating liquor. 1963-65 Op. Att'y Gen. p. 473.

Revocation for out-of-state convictions.

- Department of Public Safety is within the department's authority to revoke driver's license for out-of-state convictions; provided, however, such convictions are for offenses which would be grounds for revocation if committed in Georgia. 1963-65 Op. Att'y Gen. p. 524.

For legal status and effect of alcolyzer test, see 1972 Op. Att'y Gen. No. 72-46.

Reporting of convictions.

- Convictions for violations of O.C.G.A. §§ 40-6-391(2), (4), (6), and40-5-151 should be reported by the superior court clerk to Department of Driver Services (DDS) and violations of O.C.G.A. §§ 16-13-30(b),16-13-31, and16-13-31.1 should be reported to DDS only upon the clerk's determination that the conviction meets the mandate of O.C.G.A. § 40-5-54(a)(2). 2017 Op. Att'y Gen. No. 17-4.

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 335, 337, 362.

Defense to Charge of Driving Under the Influence of Alcohol, 17 POF2d 1.

Punitive Damages in Motor Vehicle Litigation - Intoxicated Driver, 1 POF3d 1.

Negligent Failure to Detain Intoxicated Motorist, 1 POF3d 545.

Liability of Social Host for Negligent Driving of Intoxicated Adult Guest, 3 POF3d 697.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Breath Alcohol Testing, 4 POF3d 229.

Unreliability of the Horizontal Gaze Nystagmus Test, 4 POF3d 439.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 POF3d 459.

Punitive Damages in Motor Vehicle Litigation - Intoxicated Driver, 18 POF3d 1.

Proof that Driver Was "Operating" Motor Vehicle While Intoxicated, 61 POF3d 115.

The Impaired Driver - Ascertaining Physical Condition, 4 Am. Jur. Trials 615.

Defense on Charge of Driving While Intoxicated, 19 Am. Jur. Trials 123.

Failure to Protect Public From an Intoxicated Driver, 34 Am. Jur. Trials 499.

Driving Under the Influence: Tactical Considerations in Sobriety Checkpoint Cases, 59 Am. Jur. Trials 79.

Trial Defenses to a Breath Test Score, 70 Am. Jur. Trials 1.

Litigating a Driving While Intoxicated Case, 76 Am. Jur. Trials 213.

C.J.S.

- 61A C.J.S., Motor Vehicles, § 1574 et seq.

ALR.

- Driving automobile while intoxicated as a substantive criminal offense, 42 A.L.R. 1498; 49 A.L.R. 1392; 68 A.L.R. 1356; 142 A.L.R. 555.

Constitutionality and effect of statute relating to civil liability of person driving automobile while under influence of liquor, 56 A.L.R. 327.

What conduct in driving an automobile amounts to wantonness, willfulness, or the like, precluding defense of contributory negligence, 119 A.L.R. 654.

What is a "motor vehicle" within statutes making it an offense to drive while intoxicated, 66 A.L.R.2d 1146.

Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373.

Automobiles: driving under the influence, or when addicted to the use, of drugs as criminal offense, 17 A.L.R.3d 815.

Applicability, to operation of motor vehicle on private property, of legislation making drunken driving a criminal offense, 29 A.L.R.3d 938.

Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.

What amounts to violation of drunken-driving statute in officer's "presence" or "view" so as to permit warrantless arrest, 74 A.L.R.3d 1138.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance, 93 A.L.R.3d 7.

Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 A.L.R.3d 572.

Reckless driving as lesser included offense of driving while intoxicated or similar charge, 10 A.L.R.4th 1252.

Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant's objections or refusal to submit to test, 14 A.L.R.4th 690.

Failure to restrain drunk driver as ground of liability of state or local government unit or officer, 48 A.L.R.4th 320.

Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 A.L.R.4th 149.

Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.

Horizontal gaze nystagmus test: use in impaired driving prosecution, 60 A.L.R.4th 1129.

Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.

Passenger's liability to vehicular accident victim for harm caused by intoxicated motor vehicle driver, 64 A.L.R.4th 272.

Driving while intoxicated: "choice of evils" defense that driving was necessary to protect life or property, 64 A.L.R.4th 298.

Cough medicine as "intoxicating liquor" under DUI statute, 65 A.L.R.4th 1238.

Horseback riding or operation of horse-drawn vehicle as within drunk driving statute, 71 A.L.R.4th 1129.

Operation of bicycle as within drunk driving statute, 73 A.L.R.4th 1139.

Operation of mopeds and motorized recreational two-, three-, and four-wheeled vehicles as within scope of driving while intoxicated statutes, 32 A.L.R.5th 659.

Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication - post-Sitz cases, 74 A.L.R.5th 319.

Validity, construction, and application of statute permitting forfeiture of motor vehicle for operating while intoxicated, 89 A.L.R.5th 539.

Clause in life, accident, or health policy excluding or limiting liability in case of insured's use of intoxicants or narcotics, 100 A.L.R.5th 617.

Validity, construction, and operation of school "zero tolerance" policies towards drugs, alcohol, or violence, 117 A.L.R.5th 459.

Vertical gaze nystagmus test: Use in impaired driving prosecution, 117 A.L.R.5th 491.

Claim of diabetic reaction or hypoglycemia as defense in prosecution for driving while under influence of alcohol or drugs, 17 A.L.R.6th 757.

Validity, construction, and application of state "zero tolerance" laws relating to underage drinking and driving, 34 A.L.R.6th 623.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute, regulation, or ordinance - being in physical control or actual physical control - general principles, 92 A.L.R.6th 295.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute, regulation, or ordinance - being in physical control or actual physical control - motorist sleeping or unconscious, 93 A.L.R.6th 207.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute, regulation, or ordinance - being in physical control or actual physical control - passengers, 94 A.L.R.6th 191.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance - being in actual physical control - status of vehicle, 95 A.L.R.6th 1.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance - being in actual physical control - factors and circumstances establishing actual physical control: miscellaneous situations, 96 A.L.R.6th 355.

Assimilation, under assimilative crimes act (18 U.S.C.A. § 13), of state statutes relating to driving while intoxicated or under influence of alcohol, 175 A.L.R. Fed. 293.