Lewis v. State

• Decision Date: 14 October 1994
• Docket Number: No. A94A2122,A94A2122
• Citation: 449 S.E.2d 535,214 Ga.App. 830
• Parties: LEWIS v. The STATE.
• Court: Georgia Court of Appeals

Page 535

449 S.E.2d 535

214 Ga.App. 830

LEWIS v. The STATE.

No. A94A2122.

Court of Appeals of Georgia.

Oct. 14, 1994.

Robert W. Chestney, Lawrenceville, for appellant.

Gerald N. Blaney, Jr., Sol., Richard E. Thomas, Jeff P. Kwiatkowski, Asst. Solicitors, for appellee.

BIRDSONG, Presiding Judge.

Matthew J. Lewis appeals his conviction of driving under the influence of alcohol (Count 1), driving with an open container (Count 2), driving with an expired license (Count 3), and driving with no insurance (Count 4). He pled guilty to Counts 2 and 3 and was convicted on a jury verdict of Counts 1 and 4. Held:

1. The trial court did not err in denying appellant's motion for directed verdict; the evidence was legally sufficient to support appellant's conviction of driving under the influence of alcohol (Count 1). Appellant's first and second enumerations of error are without merit.

"OCGA § 40-6-391(a)(1) makes it unlawful for a person to 'drive or be in actual physical control of any moving vehicle while: Under the influence of alcohol to the extent that it is less safe for the person to drive....' There is no requirement that the person actually commit an unsafe act." Moss v. State, 194 Ga.App. 181, 182, 390 S.E.2d 268. "Public drunkenness requires proof that a person is and appears to be in an intoxicated condition, which is manifested by boisterousness, indecent condition or act, or by vulgar, profane, loud or unbecoming language"; "[t]he offense of driving under the influence of alcohol to the extent it is less safe to drive does not require that any of these facts be alleged and proved." (Emphasis supplied.) State v. Tweedell, 209 Ga.App 13, 432 S.E.2d 619. Moreover, driving a motor vehicle while under the influence of alcohol may be established by circumstantial evidence. Schoicket v. State, 211 Ga.App. 636, 637(2), 440 S.E.2d 65.

The police were investigating a male juvenile on a bicycle who was loitering at a Big H store; the store had been closed for some time and there were no lights on. While the investigation was continuing, appellant pulled up to the store's gas pump in his Maverick automobile. The arresting officer approached and asked appellant what he was doing there; appellant replied that he wanted to get gasoline. While asking to see appellant's license and proof of insurance card, the officer noticed an open container of Keystone beer sitting beside appellant. Appellant had a strong odor of alcoholic beverage upon his breath and body. Appellant was asked to get out of the vehicle. Both appellant's driver's license and insurance card had expired. Appellant was given an alphabet field sobriety test; he started to recite the alphabet but "around the letter 'M' he started losing his place, started transposing in the middle of the letters." Appellant took the alphabet test twice; he could not complete it successfully. When asked to take a "heel to toe test," appellant became kind of defiant and refused to cooperate. At that point, appellant appeared to become frustrated and "just leaned back against his car" and would not do anything else. Appellant was then placed under arrest for DUI. Prior to his arrest appellant exhibited the following additional manifestations of being under the influence of alcohol: watery eyes, paleness of face, and slurred speech. Two unopened cans of Keystone beer subsequently were found in the car in addition to the one open can. At the county jail, appellant refused to submit to intoximeter testing after being given a second implied consent warning. At trial the arresting officer opined, based on the evidence of appellant's manifestations of alcohol, his performance and nonperformance of certain field sobriety evaluations, and his refusal to submit to intoximeter breath testing, that appellant was a less safe driver. The arresting officer, who had approximately 10 years service, had received training at the police academy regarding sobriety testing and had received training based on the National Highway Traffic Safety Administration Manual. The officer also testified he found it strange that appellant would pull up to the gas pump of a closed store that was "pretty dark."

A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive. Church v. State, 210 Ga.App. 670, 436 S.E.2d 809; Grant v. State, 195 Ga.App. 463, 464(1), 393 S.E.2d 737; Chance v. State, 193 Ga.App. 242, 387 S.E.2d 437; compare McFarland v. State, 210 Ga.App. 426, 436 S.E.2d 541. Whether a police officer qualifies as an expert for such purposes rests in the discretion of the trial court. See Smith v. State, 210 Ga.App. 451, 452(3), 436 S.E.2d 562. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, supra. Further, when as in this case, sufficiency of the evidence also is challenged by a motion for directed verdict, the proper appellate test is that of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Review of the transcript reveals ample evidence from...