☢ test - Í
coming home from work at his garage. The deputy detected the odor of an alcoholic beverage on Mr. Raby’s breath and noticed that Raby’s eyes were glazed. Raby admitted that he had ‘three to four beers’ that evening.” Hendrix v. State, 273 Ga.App. 792, 616 S.E.2d 127 (June 21, 2005). “The state may show proof of impairment under OCGA § 40-6-391(a) ‘by evidence of (i) erratic driving behavior, (ii) failure to pass field sobriety tests, and (iii) the officer’s own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that [the drug] made it less safe for the defendant to drive.’ (Punctuation omitted.) Bradshaw v. State, 269 Ga.App. 97, 98, 603 S.E.2d 494 (2004); see also Drogan v. State, 272 Ga.App. 645, 613 S.E.2d 195 (April 6, 2005).” “Hendrix appeared to be asleep in the driver’s seat of his vehicle with the engine running, in drive, with the lights on, with his foot on the brake. There was no one else present. ‘Although the officer[s] did not see the car moving, [they] observed circumstances from which a jury could infer that [Hendrix] was in actual physical control of the car when it was moved to the location where the officer[s] found it, and that [Hendrix] was intoxicated while moving it there.’ DUI may be proven by circumstantial evidence, and ‘[i]t is well settled that being found slumped over the steering wheel with the engine running constitutes such evidence.’” Accord, McDevitt v. State , 286 Ga.App. 120, 648 S.E.2d 481 (June 25, 2007) (quoting factors that may show impairment); Grodhaus v. State , 287 Ga.App. 628, 653 S.E.2d 67 (September 11, 2007) (same). Jones v. State, 273 Ga.App. 192, 614 S.E.2d 820 (May 6, 2005). “‘Methods of proof [to show impairment] may include evidence of (i) erratic driving behavior, (ii) refusal to take field sobriety tests and the breath or blood test, and (iii) the officer’s own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that the alcohol made it less safe for the defendant to drive.’ Drogan v. State, 272 Ga.App. 645, 613 S.E.2d 195 (slip op. at 5(1)(b); April 6, 2005).” As to erratic driving behavior, “[r]ear-ending a clearly-visible vehicle may … demonstrate intoxicated impairment. [Cit.]” Accord, Sistrunk v. State , 287 Ga.App. 39, 651 S.E.2d 350 (July 31, 2007) (quoting factors; smell of alcohol, running stop sign, officer’s opinion of impairment were sufficient to convict of less-safe DUI); Young (October 14, 2015), above (quoting Jones). Stephens v. State, 271 Ga.App. 634, 610 S.E.2d 613 (February 15, 2005). “[Defendant] was found passed out behind the steering wheel of a haphazardly parked vehicle with the engine running and the lights on. [Defendant], who had apparently vomited, admitted driving after taking an anti-anxiety medication, failed field sobriety tests and refused to submit to State-administered chemical testing. ‘Although the officer did not see the car moving, he observed circumstances from which a jury could infer that [defendant] was in actual physical control of the car when it was moved to the location where the officer found it, and that [defendant] was intoxicated while moving it there.’ Johnson v. State, [194 Ga.App. 501, 502, 391 S.E.2d 132 (1990)]; See also Phillips v. State, [185 Ga.App. 54, 363 S.E.2d 283 (1987)]; Stearnes v. State, [ 261 Ga.App. 522(1), 583 S.E.2d 195 (2003)].” Further, ‘the refusal to submit to a blood alcohol test [creates] an inference that the test would reveal the presence of a prohibited substance and bears directly on the issue of the sufficiency of the evidence. Fairbanks v. State, [244 Ga.App. 123, 124, 534 S.E.2d 529 (2000) ].’ Stearnes v. State, supra at 523(1) .” Accord, Alewine v. State , 273 Ga.App. 629, 616 S.E.2d 472 (May 31, 2005). Long v. State, 271 Ga.App. 565, 610 S.E.2d 74 (December 6, 2004). Evidence was sufficient to support less-safe DUI conviction: odor of alcohol on defendant’s breath; bloodshot eyes; defendant’s “refusal, prior to her arrest, to submit to the field sobriety tests;” and refusal to submit to implied consent testing, “together with the other evidence discussed above, would support an inference that she was an impaired driver.” Also, evidence that defendant “had flashed her high beam lights at [officer] as he approached her from the opposite direction was evidence of Long’s impaired state. Given this evidence, a rational trier of fact could have found Long guilty of driving under the influence of alcohol to the extent that she was a less safe driver.” Accord, Jones v. State , 273 Ga.App. 192, 614 S.E.2d 820 (May 6, 2005). Shaheed v. State, 270 Ga.App. 709, 607 S.E.2d 897 (December 1, 2004). Defendant’s conviction of DUI-less safe reversed; admission that defendant had been drinking, smell of alcohol, and refusal to submit to testing were insufficient to convict. Proof of a less safe act while driving not required. Distinguished, Lee (July 26, 2006), above (additional evidence supported conviction). Mullady v. State, 270 Ga.App. 444, 606 S.E.2d 645 (November 15, 2004). “[T]he trial court properly found that the jury’s verdict was amply supported by the following circumstantial evidence: Mullady’s red, glassy eyes, his unsteady stance, the presence of the odor of alcohol, his mumbled speech, his admission of consuming two beers, as well as his statement that he was driving to a bar. Further, the results of the field sobriety tests and Mullady’s repeated refusals to submit to chemical breath testing also support the jury’s verdict.”
Made with FlippingBook Ebook Creator