Moss v. State

• Decision Date: 08 January 1990
• Docket Number: No. A89A1672,A89A1672
• Citation: Moss v. State, 390 S.E.2d 268, 194 Ga.App. 181 (Ga. App. 1990)
• Parties: MOSS v. The STATE.
• Court: Georgia Court of Appeals

Page 268

390 S.E.2d 268

194 Ga.App. 181

MOSS v. The STATE.

No. A89A1672.

Court of Appeals of Georgia.

Jan. 8, 1990.

Randall G. Levine, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., Leonard Geldon, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Victor Leroy Moss appeals from his convictions, following a bench trial, of driving under the influence and driving without insurance. Moss enumerates as error the entering of a conviction when the weight of the evidence did not support the guilty verdict, the denial of his motion for a directed verdict, and the application of OCGA § 40-6-391 to the evidence. The basis for all three enumerations of error is Moss' contention that a conviction for driving under the influence must be based on evidence that the defendant actually operated his vehicle in an unsafe or less safe manner, and on other evidence showing that he was under the influence of alcohol when he did so. Held:

The trial was not transcribed and, while a transcript of evidence from recollection pursuant to OCGA § 5-6-41(g) may have been prepared, that transcript was not provided with the record submitted to this court. Further, Moss' brief cannot be used to add evidence to the record (Leathers v. Timex Corp., 174 Ga.App. 430, 431, 330 S.E.2d 102; see Patterson v. State, 256 Ga. 740(2), 353 S.E.2d 338), and we cannot consider factual allegations in the brief that are not supported by the record. Behar v. Aero Med Intl., 185 Ga.App. 845, 366 S.E.2d 223. Accordingly, Moss has failed to satisfy his burden by showing error affirmatively in the record. Moye v. State, 127 Ga.App. 338, 341, 193 S.E.2d 562.

Moreover, Moss' arguments are incorrect as a matter of law. 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. See Williams v. State, 190 Ga.App. 361, 362, 378 S.E.2d 886; Campbell v. State, 189 Ga.App. 303, 375 S.E.2d 654; Boose v. State, 185 Ga.App. 728, 365 S.E.2d 534; Howell v. State, 179 Ga.App. 632, 634, 347 S.E.2d 358.

Judgment affirmed.

DEEN and McMURRAY, P.JJ., concur.