Cash v. State, A16A0269
| Decision Date | 27 May 2016 |
| Docket Number | A16A0269 |
| Parties | Cash v. The State. |
| Court | Georgia Court of Appeals |
337 Ga.App. 511
786 S.E.2d 560
Cash
v.
The State.
A16A0269
Court of Appeals of Georgia.
May 27, 2016
Reconsideration Denied June 22, 2016
Robert Parker McFarland Jr., Banks, Stubbs & McFarland, for Appellant.
William Aubrey Finch, Sol.-Gen., Jenna Nicole Thomas, Asst. Sol.-Gen., for Appellee.
Phipps, Presiding Judge.
After a bench trial, Joshua William Cash was convicted of driving under the influence of alcohol. He appeals, challenging the sufficiency of the evidence. He also argues that the trial court erred in denying his motion to suppress. For reasons that follow, we reverse and remand for further proceedings.
1. In reviewing Cash's sufficiency challenge, we construe the evidence in the light most favorable to the verdict, and Cash no longer enjoys a presumption of innocence.1 We neither weigh the evidence nor assess witness credibility, but merely determine whether the trial court was authorized to find Cash guilty beyond a reasonable doubt.2
So viewed, the evidence shows that on the night of October 12, 2014, a deputy with the Forsyth County Sheriff's Office observed a car stopped on the shoulder of State Route 400. The vehicle appeared to be occupied, and the deputy became concerned that the occupants might need assistance. He activated his patrol car's blue lights, pulled behind the vehicle, and approached it. Inside, the deputy found Cash in the driver's seat and one passenger. Cash told the deputy that they had stopped on the side of the road to figure out where they were going that night.
As the deputy spoke to Cash, he smelled a strong odor of alcoholic beverage coming from the vehicle. He also noticed that Cash's eyes were glassy, bloodshot, and watery, manifestations consistent with alcohol consumption. He asked whether Cash had consumed any alcohol, and Cash admitted to drinking two beers several hours earlier. At the deputy's request, Cash stepped out of the vehicle. Cash was unsteady on his feet, and the deputy detected an odor of alcohol on his person. The deputy performed the horizontal gaze nystagmus field sobriety test on Cash, who exhibited six out of six clues, indicating impairment. He asked Cash to participate in several other
field sobriety evaluations, but Cash declined, requesting instead to take a breathalyzer test at the police station.
Based on the odor of alcohol about Cash's person, his physical manifestations, and his performance on the horizontal gaze nystagmus test, the deputy determined that Cash was under the influence of alcohol to the extent he was less safe to drive and placed him under arrest. The deputy then read Cash Georgia's implied consent warning. Cash agreed to submit to a state-administered breath test on the Intoxilyzer 5000, which the deputy conducted at the county detention center. Although the deputy identified a copy of the breath test results at trial, the state never tendered the results into evidence, and they were not admitted.
At the conclusion of the evidence, the trial court found Cash guilty of driving with a blood alcohol concentration of 0.08 grams or more (a per se violation) and driving under the influence of alcohol to the extent he was less safe to drive (a less safe violation). After merging the two counts for purposes of sentencing, the trial court convicted Cash of driving under the influence (per se). Cash now appeals, arguing that his conviction cannot stand because the state did not tender the breath test results into evidence.
(a) Count 1 of the accusation alleged that Cash committed a per se DUI violation by driving “while his breath alcohol concentration was .08 grams or more within 3 hours after such driving ended, due to alcohol consumed before such driving ended.”3 Given its failure to tender the Intoxilyzer 5000 test results into evidence, the state admits—and we find—that it presented insufficient proof
of this charge. Accordingly, Cash's conviction for driving under the influence must be reversed,4 and Cash cannot be retried on Count 1.5
(b) The state's mishandling of the breath test results also undermines the trial court's finding of guilt as to Count 2 of the accusation, which charged Cash with the less safe violation. We first note that the evidence with respect to this charge was sufficient. Testimony regarding Cash's location that night, appearance, smell, unsteadiness on his
feet, admitted consumption of alcohol, and performance on the horizontal gaze nystagmus test supported the trial court's determination that Cash had driven his vehicle while under the influence of alcohol to the extent he was less safe to drive.6 The record further shows, however, that the Intoxilyzer 5000 test results were given to the trial court to review with the other exhibits, even though the test results were never tendered or admitted into evidence. Those results indicated that Cash provided two breath samples, which registered alcohol concentrations of 0.114 and 0.117 grams.
The state concedes that the test results were considered by the trial court in reaching its verdict, inappropriately and harmfully contributing to the finding of guilt on Count 2.7 We agree. 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).8
2. Cash also claims that the trial court erred in denying his motion to suppress. Because this issue likely would be raised during any retrial of the less safe charge, we address it here.
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