☢ test - Í

Guild v. State, 236 Ga.App. 444, 512 S.E.2d 343 (February 12, 1999). Drug incidents were sufficiently similar: “both incidents occurred at night, in the same area, involved the same drug in amounts greater than that generally possessed for personal use and tended to show that Guild would deny all knowledge of contraband when caught in its proximity. Insofar as Guild denied that the cocaine at issue belonged to him, the prior transaction was clearly probative of his intent. [Cit.]” Accord, McNair v. State , 240 Ga.App. 324, 523 S.E.2d 392 (October 8, 1999) (two incidents of selling cocaine on same street corner, involving cocaine wrapped in plastic, which defendant attempted to conceal or destroy); Carson v. State , 314 Ga.App. 515, 724 S.E.2d 821 (March 1, 2012) (“both the 1996 conviction and the present case involved Carson hiding a significant amount of crack cocaine in a small compartment in an area under his control, his person and his home”). Molaro v. State, 236 Ga.App. 35, 510 S.E.2d 886 (January 14, 1999). Defendant in subject case was accused of throwing 19 grams of amphetamines in a parked car in Georgia when confronted by police. At trial, similar transaction evidence was introduced showing “[a]n Ohio incident in which Molaro had tossed a duffle bag containing over two pounds of marijuana and a set of scales out a car window during a high speed chase.” Held, despite differences in type and amount of substance and different locations, evidence was properly admitted “to show Molaro’s similar course of conduct and bent of mind in that while possession of illegal drugs with an intent to distribute, when confronted or cornered by police, Molaro would throw the drugs away.” 36. SIMILARITY OF OFFENSES -- DUI See new OCGA § 24-4-417 State v. Frost, 297 Ga. 296, 773 S.E.2d 700 (June 15, 2015). Reversing 328 Ga.App. 337, 761 S.E.2d 875 (2014). In DUI prosecution under 2013 Evidence Code, trial court properly admitted evidence of prior DUI convictions to show knowledge under OCGA § 24-4-417(a)(1). In the present case and both prior cases, defendant refused implied consent testing. Defendant also refused all field sobriety testing in the current case. 1. Contrary to Court of Appeals, 417(a)(1) isn’t limited to cases where defendant took State test in first prosecution, then refused in the case on trial, and “offers evidence at trial to suggest that his refusal is attributable to a lack of knowledge, misunderstanding, inadvertence, accident, or mistake”; rather, it applies in any case where the defendant refused testing, and evidence of a prior DUI “is relevant to prove … ‘knowledge, plan, or absence of mistake or accident. Although Rule 417(a)(1) may have a far more limited application than Rule 404(b), it too is a ‘rule of inclusion,’” all the moreso because “Rule 417(a)(1) speaks of evidence that ‘shall be admissible.’” No explanation by defendant is required as a prerequisite to admission of the evidence; compare “Rule 417(a)(3) [which] is limited explicitly to cases in which ‘[t]he identity of the driver is in dispute.’” The ten-day notice requirement of 417(b)(2) also makes little sense if the evidence will only be admissible after the defendant offers an explanation of his behavior. “We conclude that the ‘specific situation’ that Rule 417(a)(1) was enacted to address is precisely that situation identified explicitly in the text of Rule 417(a)(1): a case in which ‘[t]he accused refused ... to take the state administered test required by Code Section 40–5–55.’ Regardless of whether the accused disputes the reasons for his refusal, such a situation presents special problems of proof for the prosecution.” 2. Admission of prior DUIs based on a present refusal supports the permissible inference juries may draw from a refusal. “When an accused refuses the required test, his refusal generally is admissible, see OCGA § 40–6–392(d), and a trier of fact may infer from such a refusal that, if the accused had submitted to the test, it would have shown some presence of an intoxicant. See Bravo v. State, 249 Ga.App. 433, 434–435(2) (548 S.E.2d 129) (2001). Such an inference, however, is permissive, not mandatory, see Crusselle v. State, 303 Ga.App. 879, 883(2)(b) (694 S.E.2d 707) (2010), and even in the absence of any evidence from the accused to explain or excuse his refusal, the trier of fact may decline to draw any inference at all. If the trier of fact elects to draw the inference, its weight is indeterminate and left to the discretion of the trier of fact. Cf. Leverett v. State, 254 Ga. 691, 691–692(2) (333 S.E.2d 609) (1985) (weight to be given to a permissive inference of consciousness of guilt from evidence of flight is left to the discretion of the jury). And standing alone, a refusal permits an inference only that a prohibited intoxicant was present to some degree, not that the intoxicant worked the impairment required under OCGA § 40–6–391(a)(1), (2), (3), or (4) [cits.] Proof that the accused on prior occasions had driven under the influence of the same or a similar intoxicant may strengthen substantially the inference about the presence of an intoxicant. … [I]t might properly be inferred from evidence of prior occasions on which the accused had driven under the influence that the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely. Such awareness, in turn, would offer an explanation for why the accused refused the test on this occasion, namely, that he was conscious of his guilt and knew that the test results likely would tend to show that he was, in fact, under the influence of a prohibited substance to an extent forbidden by OCGA § 40–6–391(a),” citing Jones (June 1, 2015), below . “Prior occasions on which the accused was arrested and charged with driving under the influence also could permit an inference in some circumstances