Hunt v. State, A00A2054.

• Decision Date: 21 November 2000
• Docket Number: No. A00A2054.,A00A2054.
• Parties: HUNT v. The STATE.
• Court: Georgia Court of Appeals

542 S.E.2d 591

247 Ga. App. 464

HUNT v. The STATE.

No. A00A2054.

Court of Appeals of Georgia.

November 21, 2000.

Reconsideration Denied January 5, 2001.

Steven Hunt, pro se.

Spencer Lawton, Jr., District Attorney, Allison E. Bailey, Assistant District Attorney, for appellee. MIKELL, Judge.

Steven L. Hunt was charged with driving under the influence of alcohol to the extent that he was a less safe driver ("DUI") obstruction of an officer, driving with an open container, following another automobile too closely, having no proof of insurance and driving without a license. At trial, Hunt admitted his guilt in all of the charges except DUI and obstruction of an officer. The trial court directed a verdict of acquittal on the obstruction charge, and the jury returned a guilty verdict on the remaining counts. Hunt appeals his DUI conviction, contending that the evidence was insufficient, that the trial court erred in admitting certain evidence and by improperly expressing its opinion to the jury and that he was denied effective assistance of counsel. We find no merit in these contentions and affirm the judgment.

1. First, Hunt contends that the evidence at trial was insufficient to sustain his conviction of driving under the influence of alcohol to the extent that it was less safe for him to drive. OCGA § 40-6-391(a)(1).

On appeal, Hunt no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Paul v. State, 231 Ga. App. 528, 499 S.E.2d 914 (1998). Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga.App. 217(1), 504 S.E.2d 53 (1998).

So viewed, the evidence shows that on August 18, 1996, at approximately 1:30 a.m., Hunt's vehicle struck the rear of Addie Kirkland's car, which was stopped at a red light. Kirkland testified that the force of the impact caused her car to strike the car in front of her, which was also stopped at the light. Kirkland further testified that Hunt attempted to drive around her car, but he struck it again. According to Jacob Grant, a passenger in the vehicle struck by Kirkland, Hunt attempted to leave the scene, but Grant stopped him and escorted him back to his car. Next, Hunt again fled the scene, jumping two fences before he was apprehended by Corporal Keith Sisco of the Savannah Police Department.

Corporal Sisco testified that Hunt smelled of alcohol, was unsteady on his feet and had bloodshot eyes. Two open containers of beer were discovered in Hunt's vehicle. At trial, Hunt admitted consuming alcohol prior to the accident.

After Hunt's arrest, Corporal Gregory S. Ernst read him the implied consent notice, and Hunt agreed to submit to breath testing. Corporal Sisco testified that when Corporal Ernst attempted to administer the test, Hunt pretended to blow into the instrument by puffing out his cheeks, but that he failed to "fog up" the tube. According to Corporal Ernst, Hunt suggested that the instrument was not working properly; however, the officer successfully completed a test cycle. Corporal Ernst again attempted to administer the test, but Hunt gave a series of small puffs that were insufficient to register on the instrument, despite the officer's repeated instructions to exhale continuously. Hunt was charged with DUI by refusal to submit to testing.

We conclude that the evidence clearly supports the jury's verdict and would enable any rational trier of fact to find Hunt guilty of driving under the influence of alcohol to the extent that he was a less safe driver. See Harding v. State, 242 Ga.App. 609, 610, 530 S.E.2d 514 (2000). 2. Next, Hunt argues that the trial court erred in denying his pretrial motion to permit the jury to test the Intoxilyzer 5000. Hunt requested that the jurors "be allowed to blow into said breath machine" in order for them to determine "the volume of air and breathing effort required to operate such a machine."

It is well settled that "[g]enerally, whether courtroom demonstrations will be permitted rests within the sound discretion of the trial court." Grant v. State, 239 Ga. App. 608, 611(3), 521 S.E.2d 654 (1999). Appellate courts will not interfere with the admission of evidence absent an abuse of that discretion. Hartman v. Shallowford Community Hosp., 219 Ga.App. 498, 501(3), 466 S.E.2d 33 (1995). It is certainly within the trial court's discretion to deny a request that the jury conduct its own experiment. Hunt has failed to establish an abuse of discretion in the court's denial of the motion.

3. Hunt enumerates as error the court's admission of evidence of his refusal to submit to breath testing. We conclude, however, that the court did not err in admitting such evidence.

OCGA § 40-6-392(d) provides that "[i]n any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his ... breath ... at the time of his arrest shall be admissible in evidence against him." Hunt argues that he did not refuse to submit to testing; rather, he was unable to provide a sample.

In two cases involving similar facts, we held that evidence of a defendant's failure to provide an adequate breath sample was admissible to demonstrate a refusal to submit meaningfully to testing. Komala v. State, 237 Ga.App. 236, 237(2), 515 S.E.2d 185 (1999); Allen v. State, 229 Ga.App. 435, 437-438(1), 494 S.E.2d 229 (1997). "Unless encumbered by a physical or medical limitation, a person submitting to the breathalyzer test may be considered to have refused to comply if an adequate breath sample has not been provided." Komala, supra, 237 Ga.App. at 237(2), 515 S.E.2d 185. An adequate breath sample is defined in OCGA § 40-6-392(a)(1)(B) as "a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis."

Hunt contends that he failed to provide an adequate sample because he suffers from Bell's palsy and because he hit his head in the accident. We conclude, however, that Hunt failed to meet his burden of establishing that he was unable to provide an adequate breath sample due to a medical condition. See Bartnick v. State, 203 Ga.App. 369, 370, 416 S.E.2d 739 (1992). Hunt testified that he suffers from Bell's palsy; however, he did not present the testimony of a physician or any medical evidence of the effect the disorder might have on his ability to produce an adequate breath sample. Similarly, Hunt did not present any medical evidence that hitting his head on the windshield rendered him unable to submit meaningfully to the test.

Furthermore, evidence of Hunt's behavior and medical condition immediately following the accident contradicts his argument that he was unable to provide a breath sample. Witnesses testified that Hunt was able to run from the scene of the accident twice and to jump two fences. The police officers testified that Hunt refused medical treatment at the scene of the accident, and that he was taken to the hospital where he was examined and released. At the time Corporal Ernst administered the test, Hunt told the officers that he did not have any medical conditions that would interfere with his ability to perform a breath test.

Based on Hunt's failure to establish his medical inability to provide an adequate breath sample and on evidence of his behavior following the accident, we conclude that the trial court did not abuse its discretion in admitting evidence of Hunt's refusal to submit to the test.

4. In a related argument, Hunt contends that the court erred in admitting any evidence of the breath test, alleging that the state failed to show that the Intoxilyzer 5000 was in proper working order. We disagree.

OCGA § 40-6-392(a)(1)(A) provides that, in order for evidence of chemical analysis of a person's breath to be admissible, [the] analysis ... shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine... in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.

In the case sub judice, the state presented evidence that use of the Intoxilyzer 5000 has been approved by the Georgia Bureau of Investigation and certification that the instrument was in good working order at the time of Hunt's attempted test. Furthermore, Corporal Ernst possessed a valid permit to operate the Intoxilyzer 5000. Thus, because the state met all of the statutory requirements, the trial court did not err in admitting evidence of the officers' attempt to test Hunt's breath.

5. Next, Hunt argues that the trial court erred by improperly expressing its opinion when it instructed the jury on the law of implied consent. Specifically, during cross-examination of Corporal Ernst, the court instructed the jury as follows in overruling a defense objection:

Well, I think yours has been a misstatement of the law, too, counselor, in your questioning. I will instruct the jury at this time that the law says that the police officer may make the designation of what test shall be made, and he only has to make one request. Whatever he designates, that is the one the defendant has to take, under the law. If he fails to take it, under the circumstances, then he has refused. He has no right to another test until he takes the first test requested by the officer. That's the law.

According to OCGA § 17-8-57, it is error for a judge to "express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused." Until a recent Supreme Court decision, the question of...