Clay v. State, A89A1984
| Decision Date | 01 November 1989 |
| Docket Number | No. A89A1984,A89A1984 |
| Citation | 193 Ga.App. 377,387 S.E.2d 644 |
| Parties | CLAY v. The STATE. |
| Court | Georgia Court of Appeals |
Bentley C. Adams III, Thomaston, for appellant.
W. Fletcher Sams, Dist. Atty., for appellee.
The appellant was charged with two counts of driving under the influence of alcohol. See generally OCGA § 40-6-391(a). Count 1 alleged simply that he had, on a specified date and at a specified location, operated a motor vehicle "under the influence of alcohol, contrary to the laws of [this] state...." Count 2 alleged that he had, on the same date and at the same location, operated a motor vehicle with "0.12 percent or more by weight of alcohol in his blood...." A jury acquitted him on the latter charge but found him guilty on the former. This appeal followed.
Two sheriff's deputies were dispatched to the appellant's residence at around noon on the date alleged in the accusation in response to a telephone report that a family disturbance was in progress there. While en route, they observed the appellant pass them going in the opposite direction, and they turned around to follow him. Seeing that he had pulled his vehicle into the parking lot of a food store, they entered the store and found him inside paying for a cup of coffee. According to the arresting officer, the appellant's "eyes were red and glassy, and he had an odor of alcoholic beverage about his breath." This officer asked the appellant if he had been drinking that morning, and he responded that "he hadn't been drinking that morning, that he had been working, but that he had consumed a quantity of alcoholic beverage the night before."
The arresting officer testified that on the basis of his "observation of [the appellant], and the different information [he was] able to gather together as [he] talked to him ...," he formed the opinion that the appellant was "less safe to operate that vehicle ... as a result of being under the influence of alcohol" and that he accordingly arrested him for DUI. However, the officer further testified that the appellant's speech was not slurred, that he was not staggering, that there was nothing unusual or erratic about the way he had been driving and that no field sobriety tests were administered to him.
Following his arrest, the appellant was taken to the sheriff's office, where a breath test was administered to him on an Intoximeter 3000 breathalyzer machine to determine his blood-alcohol concentration. The machine returned a reading of .18 grams; however, the appellant presented expert testimony to the effect that this reading was unreliable because it was based on the assumption that each subject's "blood-air ratio" was 1 to 2100, whereas the appellant's blood-air ratio, as determined by infrared analysis, was "considerably under ... 2100 to 1, which means that he will continually read too high on these Intoximeter 3000 machines." The expert further testified that false readings could be generated on the machine if a subject's skin or clothing had been exposed to hydrocarbons prior to a test; and it was established without dispute that during the morning prior to his arrest the appellant had been spreading roofing tar with his hands in connection with his work as a roofer and that he had used gasoline to thin this tar as well as to clean it from his skin.
Various co-workers and members of the appellant's family testified that they had been with him at different times during the morning prior to his arrest and that they had not seen him consume any alcoholic beverages or exhibit any signs of intoxication during that period. In addition, several of these witnesses testified that the appellant's eyes appeared bloodshot all the time, and the arresting officer conceded during the trial that the appellant's eyes appeared "somewhat" red even as he sat in the courtroom. Held:
1. The appellant initially contends that the offense of driving under the influence of alcohol no longer exists, having been effectively repealed by Ga.L.1988, p. 1893, § 2, which added the following italicized language to OCGA § 40-6-391(b): "The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use." (Emphasis supplied.)
An identical contention was made and rejected in Proo v. State, 192 Ga.App. 169, 384 S.E.2d 197 (1989). For the reasons...
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...rise to an inference that he/she was intoxicated." We disagree. Swain's requested charge was taken almost verbatim from our decision in Clay v. State.26 But it is not always appropriate to use language from appellate decisions in a jury charge, even though the language "may embody sound pri......
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