☢ test - Í

admission of evidence showing that the defendant refused to take such a test after the implied consent warnings were administered. Keenan v. State, 263 Ga. 569, 571-572(2), 436 S.E.2d 475 (1993). It follows, therefore, that the warnings themselves need not inform of such a privilege .” 3. AND STATEMENTS DURING STOP See EVIDENCE – STATEMENTS BY DEFENDANT, below P. OPINION TESTIMONY See WITNESSES – OPINION TESTIMONY – INTOXICATION, below Q. PER SE 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).” Smith v. State, 325 Ga.App. 405, 750 S.E.2d 758 (November 15, 2013). DUI-per se conviction affirmed; evidence supported finding that test was performed within three hours of driving. Officers responded to 911 call of a one- vehicle accident, but no one purported to see defendant driving. “[Officer] Teague testified on direct that the test was done within three hours of Smith's driving. He further explained that this was based on the computer-recorded time of the 911 call about the automobile accident (10:45 p.m.) and the time recorded on the Intoxilyzer test (11:44 p.m.). There was evidence that paramedic first responders were still treating Smith while the initial responding officer was on the scene, so this supports a finding that the accident scene was ‘fresh’ at that time. Compare Norton v. State, 280 Ga.App. 303, 304, 640 S.E.2d 48 (2006). Further, Teague interacted with Smith for ‘30 minutes at the most’ before transporting him to the pretrial detention center.” State v. Gaggini, 321 Ga.App. 31, 740 S.E.2d 845 (March 28, 2013). In DUI prosecution, trial court erred in suppressing intox results based on lack of probable cause for arrest. 1. Trial court erroneously ruled that State was required, and failed, to prove that defendant “had driven within three hours of consuming alcohol.” “But the test is not whether Gaggini ‘had driven within three (3) hours of consuming alcohol. ’ The test is found in OCGA § 40–6–391(a)(5), which provides that: ‘A person shall not drive or be in actual physical control of any moving vehicle while: (5) The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.’” 2. Trial court also erred in holding that probable cause for arrest couldn’t be shown by hearsay. State v. Loy, 251 Ga.App. 721, 722, 554 S.E.2d 800 (2001). Holowiak v. State, 308 Ga.App. 887, 709 S.E.2d 887 (March 29, 2011). Per se DUI conviction affirmed; 1. trial court properly admitted “evidence of his being a less safe driver, his alcohol impairment, and of the field sobriety tests” as relevant to his per se DUI charge. “‘Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information’ about the quantity of alcohol in the system. Kirkland v. State, 253 Ga.App. 414, 416, 559 S.E.2d 161 (2002) (officer's testimony that HGN test correlated with Intoxilyzer results was relevant and admissible). Moreover, we have held that police officers may give opinion testimony regarding the state of a DUI suspect's sobriety. Wrigley v. State, 248 Ga.App. 387, 392(4), 546 S.E.2d 794 (2001) (officer's testimony of his specific conclusions following each field test admissible to show defendant was less safe driver). Here, Holowiak attacked the accuracy and reliability of the Intoxilyzer 5000. The officer testified that, based on his years of training and experience, he concluded that Holowiak's performance on the field sobriety tests was consistent with a test result of .125 from the Intoxilyzer. Thus, the evidence of his field sobriety test was relevant to counter Holowiak's attacks on the accuracy of the breath test. Likewise, the evidence of Holowiak's impairment was relevant to establish the facts that were the basis for the DUI arrest .” 2. Trial court properly admitted evidence that defendant “had declined an independent test;” such admission did not violate defendant’s right against self-incrimination. “Here, Holowiak's defense was largely based on the unreliability of the test results from Intoxilyzer 5000; thus, such evidence would be relevant to show Holowiak's failure to adduce rebuttal evidence. See Dupont v. State, 204 Ga.App. 262, 264(4), 418 S.E.2d 803 (1992).” State v. Damato, 302 Ga.App. 181, 690 S.E.2d 478 (January 29, 2010). Trial court properly granted motion to suppress breath test results, could find that evidence didn’t support DUI arrest. “[T]here is no evidence in the record showing that