Miller v. the State.

• Decision Date: 02 February 2011
• Docket Number: No. A10A2269.,A10A2269.
• Citation: Miller v. the State., 307 Ga.App. 701, 706 S.E.2d 94 (Ga. App. 2011)
• Parties: MILLERv.The STATE.
• Court: Georgia Court of Appeals

307 Ga.App. 701

706 S.E.2d 94

11 FCDR 254

MILLER

v.The STATE.

No. A10A2269.

Court of Appeals of Georgia.

Feb. 2, 2011.

James K. Luttrell, Woodstock, for appellant.David Lee Cannon Jr., Solicitor–General, Carrie A. McCurdy, Assistant Solicitor–General, for appellee.BARNES, Presiding Judge.

A Cherokee County jury found Kenneth A. Miller guilty of driving under the influence of alcohol, failure to maintain lane, speeding, and improper left turn.On appeal, Miller challenges the sufficiency of the evidence and contends that the trial court erred in permitting the arresting deputy to testify regarding how diabetes might affect the results of a State-administered breath test and in failing to give his requested jury charge regarding opinion testimony.For the reasons set forth below, we affirm.

1.Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant is no longer presumed innocent.Vadde v. State,296 Ga.App. 405, 674 S.E.2d 323(2009).We neither weigh the evidence nor assess the credibility of the witnesses, but only determine whether the evidence was sufficient to support the conviction under the standard of Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).Stone v. State,248 Ga.App. 190, 546 S.E.2d 787(2000).“The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”Id.

Viewed in the light most favorable to the verdict, the evidence showed that at approximately 10:00 p.m. on August 17, 2007, a deputy with the Cherokee County Sheriff's Department was traveling northbound on Bells Ferry Road approaching Kellogg Creek Road.Bells Ferry Road was comprised of four lanes of travel, with two northbound lanes and two southbound lanes.At the intersection of Bells Ferry Road and Kellogg Creek Road, there was a traffic light and an additional center lane for turning left onto Kellogg Creek Road.As the deputy merged into the center turn lane, a vehicle traveling on Bells Ferry Road in the adjacent northbound lane suddenly swerved in front of him, swerved back into its previous position, and stopped at the intersection even though the traffic light was green.Without first merging into the center lane, the vehicle then turned left onto Kellogg Creek Road from the northbound lane, cutting in front of the deputy's patrol car and almost striking a curb.

The deputy turned on the video recording equipment inside his patrol car and followed the vehicle down Kellogg Creek Road, a two-lane roadway.He observed the vehicle cross over the double yellow line in the middle of the road on several occasions, at one point almost striking the curb on the opposite side of the road.The deputy visually estimated the speed of the vehicle at 52–55 mph in a 35 mph zone.Based upon these observations, the deputy stopped the vehicle.

When the deputy approached the vehicle, the driver identified himself as Kenneth Miller and claimed that he had been engaged in a conversation with the passenger in the front seat that had caused him to become inattentive to the road.The deputy could smell alcohol emanating from the vehicle, but Miller denied having consumed any alcoholic beverages.Miller also told the deputy that he was diabetic and sometimes had trouble with his vision.Based upon his training and experience with diabetic drivers, however, the deputy did not believe that Miller's appearance and behavior were consistent with someone suffering from an impairment caused by diabetes.

The deputy attempted to have Miller blow into his portable alco-sensor, but Miller refused to blow directly into the machine or to blow with sufficient volume, and thus prevented a reading of his breath for the presence of alcohol.Nevertheless, during the attempts with the alco-sensor, the deputy could smell alcohol coming from Miller's breath.At that point, the deputy had Miller exit from his vehicle and performed a series of field sobriety tests.The deputy administered the horizontal gaze nystagmus test, noting six out of six clues of impairment; the walk and turn test, noting five out of eight clues of impairment; and the one leg stand test, noting two out of four clues of impairment.The deputy also administered the Romberg test, noting that Miller was unsteady on his feet and failed to follow all of the instructions.

Ultimately, Miller admitted to the deputy that he had been drinking that night.Based upon his observations of Miller and the field sobriety tests, the deputy arrested Miller for driving under the influence of alcohol.After securing Miller's consent to a State-administered breath test, the deputy transported Miller to a mobile command center at a nearby traffic roadblock that housed an Intoxilyzer 5000.Both of Miller's breath samples indicated a blood alcohol concentration of greater than 0.08 grams.The breath test was administered approximately 30 minutes after the initial traffic stop.

Miller was charged by accusation with driving under the influence of alcohol to the extent it was less safe for him to drive (“DUI—Less Safe”); driving with an alcohol concentration of 0.08 grams or more within three hours of driving (“DUI—Per Se”); failure to maintain lane; speeding; and improper left turn.At trial, the deputy testified to the events as set out above, and the State introduced into evidence the results from the breath test and the video recording of the traffic stop.Miller did not testify or present any witnesses on his own behalf.After hearing all of the evidence, the jury found Miller guilty of the charged offenses.The trial court merged the DUI—Less Safe conviction into the DUI—Per Se conviction and sentenced Miller accordingly.This appeal followed.

Miller contends that the State failed to prove his guilt beyond a reasonable doubt.His primary contention is that there was insufficient evidence that he was driving under the influence of alcohol.We disagree.¹A person is guilty of DUI—Per Se if he drives a car while his blood alcohol concentration is 0.08 grams or more at any time within three hours after such driving.OCGA § 40–6–391(a)(5).SeeViau v. State,260 Ga.App. 96, 97(1)(b), 579 S.E.2d 52(2003).The Intoxilyzer 5000 test results, combined with the deputy's testimony, provided ample evidence to support Miller's conviction of DUI—Per Se. See Jacobson v. State, 306 Ga.App. 815, 816(1), 703 S.E.2d 376(2010);Totino v. State,266 Ga.App. 265, 266(1)(a), 596 S.E.2d 749(2004);Viau,260 Ga.App. at 97(1)(b), 579 S.E.2d 52;Bagwell v. State,248 Ga.App. 806, 809(3), 547 S.E.2d 377(2001).

Miller suggests that the test results from the Intoxilyzer 5000 may have been affected by potential interference from other electronic devices, given that the machine was housed in a mobile command center.Miller provides no evidence to support his speculative assertion, and the deputy testified without contradiction that the Intoxilyzer 5000 displays an error message if the test is affected by radio interference and that no such message was displayed in this case.In any event, “evidence of the possibility of error or circumstances that might have caused the machine to malfunction ... would relate to the weight rather than the admissibility of breathalyzer...