☢ test - Í

affirmed; “instruction [which] informed the jury that, in its discretion, it could infer from Blankenship's refusal to submit to state-administered chemical tests of his blood and breath that Blankenship would have tested positive for alcohol,” is authorized by OCGA § 40-5-67.1(b)(2), citing Alewine v. State, 273 Ga.App. 629, 631(1) (616 S.E.2d 472) (2005). Walker v. State, 262 Ga.App. 872, 586 S.E.2d 757 (August 25, 2003). Approves this charge on refusal: “[a] person has the right to refuse to take the state administered breath test. Evidence of that person’s refusal is admissible in court and creates a rebuttable inference that the test would have shown that he had consumed alcohol.” Baird v. State, 260 Ga.App. 661, 580 S.E.2d 650 (March 28, 2003). Court erred in charging the jury as follows: “‘the refusal itself may be considered as positive evidence creating an inference that the test would show the presence of alcohol or other prohibited substances which impaired his driving ” (emphasis in original). Accord, Wagner (September 7, 2011), above (this charge is reversible “plain error” even if not objected to at trial). M. LESS SAFE 1. BAC LEVEL New case! Cash v. State, A16A0269, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 3044111 (May 27, 2016). Following bench trial, DUI – per se conviction reversed where State never tendered Intoxilyzer results into evidence. DUI – less safe conviction also reversed and remanded because of the trial court’s consideration of the untendered Intoxilyzer results. “Although the properly admitted evidence was sufficient to support the less safe finding, the evidence was not overwhelming, particularly since the deputy did not encounter Cash until after Cash had stopped his vehicle on the side of the road. The breath test results, on the other hand, showed that Cash had an alcohol concentration well above the legal limit following his arrest. Under these circumstances, we find it highly probable that the test results, which were never admitted into evidence, influenced the verdict. Cash, therefore, is entitled to a new trial on Count 2 (less safe).” Jaffray v. State, 306 Ga.App. 469, 702 S.E.2d 742 (October 14, 2010). Defendant’s convictions for less-safe DUI, child endangerment, and speeding affirmed; no improper argument where prosecutor argued, based on defendant’s BAC an hour after stop, that he was over the legal limit at the time of driving. “Contrary to Jaffray's assertion, this Court has previously held that evidence of a driver's numerical BAC is probative of a DUI less safe charge. ” Argument was a reasonable inference from the evidence, and was relevant although defendant wasn’t charged with per se DUI. Norton v. State, 280 Ga.App. 303, 640 S.E.2d 48 (July 6, 2006). “At the time the officer discovered her [an undetermined time after her one-vehicle accident], Norton’s blood alcohol level was well above the legal limit, which constitutes circumstantial evidence that she was a less safe driver.” Webb v. State, 277 Ga.App. 355, 626 S.E.2d 545 (January 24, 2006). Defendant refused state testing and thus was charged only with DUI – less safe. She moved in limine to prevent State from eliciting testimony from officer that, based upon her HGN results, she probably had a blood alcohol content above .10. Defendant contends that the numerical measurement is irrelevant, given that she was only charged with less safe DUI. Held, trial court properly denied motion in limine; “the evidence directly addressed whether Webb was ‘under the influence,’ and her blood alcohol level shed light on whether she was less safe to drive.” Although statute no longer contains a presumption of impairment for any level of alcohol, “the numerical evidence of Webb’s blood alcohol level was one factor which could be considered by the jury in determining if Webb was less safe to drive.” Expressly does not determine “whether the HGN test has reached a state of verifiable certainty in the scientific community as a basis for determining the numerical level of a driver’s blood alcohol level” or thus whether “a trial court must always admit numerical evidence of a defendant’s blood alcohol content adduced by an HGN test,” as the only objection raised here by defendant was relevancy. 2. EVIDENCE – ARTICULABLE SUSPICION FOR STOP See also Search and Seizure – Articulable Suspicion for Stop/Terry Stops, below Prado-Navarette v. California, 12-9490, ___ U.S. ____, 134 S.Ct. 1683, 188 L.Ed.2d 680, 2014 WL 1577513 (April 22, 2014). Affirming California Court of Appeal; trial court properly denied motion to suppress, as officers had articulable suspicion for stop. Stop was based on call to 911 from anonymous source, who said she’d been forced from the road at a certain location, giving a description of the offending vehicle including make, model and tag number. The officer encountered the described vehicle about 18 minutes later, about 19 miles away on the same highway. The officers smelled marijuana as they approached the vehicle, and ultimately found 30 pounds of marijuana in the truck. 1. Anonymous tip “was sufficiently reliable to credit the allegation that [defendant’s] truck ‘ran the [caller] off the roadway.’”