O.C.G.A. § 40-6-391 (2019)

Annotations

Cross references. - Confinement of juvenile violators of subsection (k) of this Code section, § 15-11-35. Compensation of victims of violation of this Code section, § 15-21-110 et seq. Intoxication as relieving person from criminal responsibility for actions, § 16-3-4. Public drunkenness, § 16-11-41. Seizure and disposition of driver’s license of persons charged with driving under influence of alcohol or drugs, § 40-5-67. Notices of implied consent to chemical tests and rights of motorists, § 40-5-67.1. Ignition interlock device limited driving permits, § 40-5-64.1. Ignition interlock devices, § 42-8-110 et seq. Navigating vessels while intoxicated, § 52-7-12. Suspension, revocation, and cancellation forms based on violations, Official Compilation of the Rules and Reg-

ulations of the State of Georgia, Department of Driver Services, Driver License Services, § 375-3-3-.06.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, ‘‘this Code section’’ was substituted for ‘‘Code Section 40-6-391’’ in paragraph (c)(1) and in the first sentence of paragraph (d)(2). Pursuant to Code Section 28-9-5, in 1987, ‘‘and’’ was deleted at the end of subparagraph (c)(2)(B) and ‘‘Code section’’ was substituted for ‘‘Code’’ in the first sentence of paragraph (d)(2). Pursuant to Code Section 28-9-5, in 1990, ‘‘section’’ was inserted following ‘‘Code’’ the first time that word appears in the first sentence of paragraph (d)(2) due to its inadvertent omission from Ga. L. 1990, p. 2048, § 5.

Pursuant to Code Section 28-9-5, in 1991, ‘‘this chapter’’ was substituted for ‘‘Chapter 6 of Title 40’’ in paragraph (h)(2). Pursuant to Code Section 28-9-5, in 1999, subparagraphs (c)(1)(D), (c)(2)(D), and (c)(3)(D) as enacted by Ga. L. 1999, p. 391, § 7, were redesignated as (c)(1)(E), (c)(2)(F), and (c)(3)(F), respectively, and punctuation was revised accordingly. Editor’s notes. - Ga. L. 1994, p. 1600, § 11, not codified by the General Assembly, provides that the provisions of the Act shall apply only to cases arising out of arrests occurring on or after January 1, 1995, except that the provisions amending subsection (a) of Code Section 40-6-391.1, restricting the acceptance of a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the provisions amending subsection (c) of Code Section 40-6-391, changing the criminal penalties for violations of the section, shall become effective July 1, 1994, and except that the provisions amending subsection (g) of Code Section 40-5-67.1, relating to the time for requesting a hearing on an administrative suspension, the stay of a suspension pending such hearing, and the early termination of an administrative suspension under certain conditions shall apply to cases pending on July 1, 1994. Ga. L. 1996, p. 1413, § 2, not codified by the General Assembly, provides: ‘‘This Act shall become effective July 1, 1996, and shall apply with respect to offenses committed on or after that effective date. This Act shall not apply to or affect offenses committed prior to that effective date.’’ Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: ‘‘This Act shall be known and may be cited as the ‘Teen-age and Adult Driver Responsibility Act.’ ’’ Ga. L. 1997, p. 760, § 27, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and shall not apply to offenses committed prior to that date. Ga. L. 1999, p. 391, § 2, not codified by the General Assembly, provides that: ‘‘This Act shall be known and may be cited as ‘Heidi’s Law.’ ’’ Ga. L. 2008, p. 498, § 5/HB 336, not codified by the General Assembly, pro-

vides, in part, that the amendment to this Code section, by that Act, shall be applied to offenses occurring on or after July 1, 2008; provided, however, that for purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of subsection (c) of Code Section 40-6-391, only those offenses for which a conviction or a plea of nolo contendere is obtained on or after July 1, 2008, shall be considered. Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: ‘‘This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions.’’

Law reviews. - For article, ‘‘Challenges to Humanitarian Legal Approaches for Eliminating the Hazards of Drunk Alcoholic Drivers,’’ see 4 Ga. L. Rev. 251 (1970). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For article, ‘‘The Harper Standard and the Alcosensor: The Road Not Traveled,’’ see 6 Ga. St. B.J. 8 (2000). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For article, ‘‘No Second Chances: Immigration Consequences of Criminal Charges,’’ see 13 Ga. St. B.J. 26 (2007). For article, ‘‘The Experiential Future of the Law,’’ see 60 Emory L.J. 585 (2011). For note discussing operation of Ga. L. 1968, p. 448 (see now O.C.G.A. § 40-6-392) and constitutional issues raised by the concept, see 20 Mercer L. Rev. 489 (1969). For note on the 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 129 (1992). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992). For note, ‘‘Rodriguez v. State: Addressing Georgia’s

Implied Consent Requirements for Non-English-Speaking Drivers,’’ see 54 Mercer L. Rev. 1253 (2003). For comment on Harper v. State, 91 Ga. App. 456, 86 S.E.2d 7 (1955), holding that one is under the influence of alcohol when

it appears that it is less safe for him to operate a motor vehicle than it would be if he were not so affected, see 18 Ga. B.J. 190 (1955). For comment on Flournoy v. State, 106 Ga. App. 756, 128 S.E.2d 528 (1962), see 14 Mercer L. Rev. 442 (1963).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION NOTICE TESTING EVIDENCE INSTRUCTIONS TO JURY ENDANGERING A CHILD SENTENCE AND PUNISHMENT General Consideration 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).

General Consideration (Cont’d) ‘‘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, No. A18A0800, 2018 Ga. App. LEXIS 163 (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 speci-

General Consideration (Cont’d) fied 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) and 40-6-391(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.

General Consideration (Cont’d) 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 Section 40-6-391’’ 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 driv-

General Consideration (Cont’d) ing 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

General Consideration (Cont’d) 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).

General Consideration (Cont’d) 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 a 9-1-1 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 the 9-1-1 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 sup-

port 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, No. 1:12-CV-1487-TWT, 2013 U.S. Dist. LEXIS 152569 (N.D. Ga. Oct. 23, 2013). 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, No. A18A0800, 2018 Ga. App. LEXIS 163 (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

General Consideration (Cont’d) 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

General Consideration (Cont’d) 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 call 9-1-1, 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, No. 12-15631, 2013 U.S. App. LEXIS 20296 (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

General Consideration (Cont’d) 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 B.R. 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 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 un-

steady 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,

Notice (Cont’d) 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 defen-

dant’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). Testing 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).

Testing (Cont’d) 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) and 17-16-23(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 intoxilyzer 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.

Testing (Cont’d) § 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. § 40-6391(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 and 3-3-23(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

Testing (Cont’d) 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, No. A17A2085, 2018 Ga. App. LEXIS 116 (Feb. 21, 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

Testing (Cont’d) 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 hori-

zontal 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, No. A17A2085, 2018 Ga. App. LEXIS 116 (Feb. 21, 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 defen-

dant 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,

Testing (Cont’d) 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). 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). Evidence Construed with O.C.G.A. § 40-6-394. - State was not required to prove that a defendant was committing any traffic violation or unsafe act, in addition to a violation of paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391; it is sufficient that the evidence showed that the defendant’s violation of that section caused an injury such as described in O.C.G.A. § 40-6-394, which specifies various types of serious injuries. Jones v. State, 195 Ga. App. 569, 394 S.E.2d 387 (1990). Evidence was sufficient to convict the defendant of serious injury by vehicle because the defendant told a police officer

and a nurse that the defendant had been driving the vehicle; although the defendant later recanted that admission, the jury was authorized to believe the defendant’s earlier statements; the victim testified about the injuries to the victim’s leg, that it was essentially useless for months, and that the victim still used leg braces; and the state met the state’s burden of establishing a causal connection between the defendant’s violation of the driving under the influence statute and the serious injury by vehicle statute as the defendant admitted to driving the car and to drinking in the car. Fitzpatrick v. State, 339 Ga. App. 135, 793 S.E.2d 446 (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

Evidence (Cont’d) 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

Evidence (Cont’d) 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, No. CR208-09, 2008 U.S. Dist. LEXIS 72916 (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 autho-

Evidence (Cont’d) rized 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 a 9-1-1 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 de-

Evidence (Cont’d) fendant’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 di-

rected verdict, given a properly admitted 9-1-1 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

Evidence (Cont’d) 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 state-

ments 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

Evidence (Cont’d) 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,

No. A18A0771, 2018 Ga. App. LEXIS 251 (May 7, 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

Evidence (Cont’d) 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-conducted 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 a 9-1-1 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

Evidence (Cont’d) 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)

Evidence (Cont’d) 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) and 40-6-391(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

Evidence (Cont’d) defendant to drive and possession of an open container of alcohol in violation of O.C.G.A. §§ 40-6-391(a)(1) and 40-6-253(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

Evidence (Cont’d) 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 and