Long v. State

• Decision Date: 06 December 2004
• Docket Number: No. A04A2193.,A04A2193.
• Citation: 271 Ga. App. 565,610 S.E.2d 74
• Parties: LONG v. The STATE.
• Court: Georgia Court of Appeals

610 S.E.2d 74

271 Ga. App. 565

LONG v. The STATE.

No. A04A2193.

Court of Appeals of Georgia.

December 6, 2004.

Reconsideration Denied February 10, 2005.

Marny J. Heit, Robert W. Chestney, Atlanta, for Appellant.

David L. Cannon, Jr., Solicitor-General, Barry W. Hixson, Assistant Solicitor-General, for Appellee.

BLACKBURN, Presiding Judge.

Following her conviction of driving under the influence of alcohol to the extent she was a less safe driver¹ and failure to dim headlights,² and the denial of her motion for new trial, Teresa A. Long appeals, arguing that: (1) the evidence was insufficient to support her conviction for less safe driver DUI; and that the trial court erred in (2) refusing to exclude evidence of her refusal to submit to a voluntary field sobriety test, and (3) denying her right to concluding argument at trial. For the reasons which follow, we affirm.

1. Long maintains that the evidence was insufficient for the jury to find her guilty of driving under the influence of alcohol to the extent she was a less safe driver. We disagree.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.³ The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ricks v. State.⁴

Viewed in the light most favorable to upholding the verdict, the record shows that, at approximately 10:30 p.m. on July 3, 2003, Deputy Michael Wells saw Long repeatedly flashing her high beam headlights as she drove down the highway toward him. Turning around, Wells pursued her. When Long changed lanes for a left turn, Wells turned on his blue lights, but Long continued in the left lane; Wells then activated his siren, and Long returned to the right lane and pulled into a school parking lot.

When Wells approached Long, he noticed that her eyes were glassy and bloodshot, and he could smell alcohol on her person. Wells asked Long if she had had anything to drink, but she denied that she had. Wells told Long that he could smell alcohol on her breath, but Long insisted that she had had nothing to drink. At this point, Wells asked Long to take an alco-sensor test. Long replied, "No, Sir."

Wells asked Long to turn off the engine and exit the vehicle; Long complied. Wells then asked Long if she would submit to field sobriety tests. Long said, "No." After this refusal, Wells arrested and handcuffed Long. He read her the implied consent warning and then asked if she would submit to a chemical test. Long replied, "No." Long was taken to the detention center, where she again was offered, and chose to refuse, an opportunity to take a chemical test.

We find that the evidence was sufficient to allow a rational trier of fact to find Long guilty of less safe DUI beyond a reasonable doubt.

A conviction under OCGA § 40-6-391(a)(1) does not require proof that a person actually committed an unsafe act while driving; it only requires sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to drive. Circumstantial evidence may be sufficient to meet this burden of proof.

(Citation omitted.) Self v. State.⁵

Wells testified that there was an odor of alcohol on Long's breath and that her eyes were bloodshot. Though this testimony alone would have been insufficient to support her conviction, see, e.g., Bowen v. State⁶ ("evidence which only shows that a defendant's eyes were `red and glassy, and he had an odor of (marijuana) about his breath' is insufficient to support a conviction for driving under the influence to the extent that it was less safe for him to drive"), there was additional evidence supporting the conviction. Besides the evidence of Long's appearance and odor, the jury was authorized to consider Long's refusal, prior to her arrest, to submit to the field sobriety tests. Bravo v. State⁷ ("[e]vidence that an accused, who was not in custody at the time, refused to take field sobriety tests is admissible in a trial for DUI"). In addition, her "refusal to take the state-administered chemical test was admissible as circumstantial evidence of [her] intoxication," Johnson v. State,⁸ and, together with the other evidence discussed above, would support an inference that she was an impaired driver. Compare Baird v. State⁹ ("the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver") (emphasis omitted). Finally, Wells's testimony that Long had flashed her high beam lights at him as he approached her from the opposite direction was evidence of Long's impaired state. Given this evidence, a rational trier of fact could have found Long guilty of driving under the influence of alcohol to the extent that she was a less safe driver.

2. In her second enumeration of error, Long contends that the trial court erred in refusing to exclude evidence of her refusal to submit to voluntary field sobriety tests. Citing Mallory v. State,¹⁰ Long first argues that her exercise of her right to decline voluntary field tests is analogous to an exercise of her right to remain silent and to choose not to perform potentially incriminatory acts. This argument lacks merit.

In Mallory, our Supreme Court took the "opportunity to hold that in criminal cases, a comment upon a defendant's silence or failure to come forward is far more prejudicial than probative." Id. at 630, 409 S.E.2d 839. However, in Keenan v. State,¹¹ a case decided two years after Mallory, the Supreme Court rejected the very argument Long now makes. Under the express holding in Keenan, there was no violation of Long's right not to incriminate herself under either the Fifth Amendment or the Georgia Constitution because she was not in custody at the time the field sobriety test was requested. Id. at 572, 436 S.E.2d 475 ("It follows that the trial court did not err in admitting evidence of appellant's pre-arrest refusal to undergo the alco-sensor test. There was no violation of appellant's right not to incriminate himself under the fifth amendment [or] the Georgia Constitution . . . because he was not in custody at the time the field sobriety test was requested"). See also Forsman v. State ¹² ("[s]ince Forsman was not arrested until after he failed the HGN and refused to take additional field sobriety tests, there was no violation of his constitutional right against self-incrimination"); Arce v. State ¹³ ("[n]o Miranda warnings are required before administering field sobriety tests during a traffic stop unless the suspect is in custody").

Long next argues that the administration of field sobriety tests is an invasion of an individual's reasonable expectation of privacy under the Fourth Amendment, and that commenting on her refusal to submit to the field tests is equivalent to commenting on the failure to consent to a warrantless search. This argument, too, is meritless.

Georgia law recognizes three tiers of police-citizen encounters: (1) consensual encounters; (2) brief detentions that must be supported by reasonable suspicion; and (3) arrests, which must be supported by probable cause. During a second-tier encounter, an officer is permitted to question a suspect to gather evidence of possible intoxication. Additionally, an officer may conduct field sobriety tests, even in the absence of Miranda warnings.

(Footnotes omitted.) State v. Oliver. ¹⁴

When Wells saw Long flashing her high beam lights, he acquired reasonable suspicion of criminal conduct authorizing him to briefly detain her in order to proceed with appropriate additional investigation. As that investigation began, he smelled alcohol on her and observed her glassy, bloodshot eyes. Contrary to Long's contentions, "Georgia law recognizes that law enforcement officers may briefly detain suspects for the purpose of continued investigation based upon reasonable suspicion without violating the Fourth Amendment." Id. Accordingly, the officer's reasonable articulable suspicion that Long was intoxicated provided a legal basis for asking her to submit to field sobriety tests, and her rights under the Fourth Amendment were not violated.

In a third argument, Long invokes the rule of statutory construction that the express mention of one thing implies the exclusion of another thing (expressio unius est exclusio alterius), and concludes that the legislature did not intend for a defendant's refusal to submit to field sobriety tests to be admissible in evidence against her since OCGA § 40-6-392(d) provides only that the refusal to submit to a chemical test is admissible against a defendant. We disagree.

The doctrine of expressio unius est exclusio alterius means that when particular things are enumerated in a statute, things not mentioned are excluded from application of the statute. Thus, for the doctrine to apply, it must appear that a complete enumeration or list normally would have included that which was omitted, thus making omission from the statute significant or indicative of legislative intent. OCGA § 40-6-392 deals only with "[c]hemical tests for alcohol or drugs in blood;" it does not concern any other tests for sobriety, including the alco-sensor test and field sobriety tests. In short, OCGA § 40-6-392 is inapplicable to field sobriety tests. Keenan, supra. Accordingly, the legislature's failure to state in OCGA § 40-6-392 that the refusal to submit to field sobriety tests is admissible in evidence against a defendant is neither significant nor an indication of legislative intent, and the doctrine has no application.

3. Long complains that the trial court erred in denying her the right to...