Travis v. State

Citation314 Ga.App. 280,12 FCDR 702,724 S.E.2d 15
Decision Date22 February 2012
Docket NumberNo. A11A1941.,A11A1941.
PartiesTRAVIS v. The STATE.
CourtUnited States Court of Appeals (Georgia)

OPINION TEXT STARTS HERE

Herman Maddox Kilgore, for appellant.

Robert Stokely, Sol.–Gen., Stephen James Tuggle, Sandra Nadeau Wisenbaker, Asst. Sols.–Gen., for appellee.

MILLER, Judge.

Following a jury trial, Kaitlin Travis was convicted of driving under the influence (DUI) (OCGA § 40–6–391(k)(1)), reckless driving (OCGA § 40–6–390(a)), and speeding (OCGA § 40–6–181(b)(5)). Travis filed a motion for new trial, which the trial court denied. Travis appeals, arguing that (1) there was insufficient evidence to support her convictions; she further argues that the trial court erred by (2) failing to exclude the results of a state-administered breath test, because the implied consent notice was misleading, inaccurate, and ambiguous; (3) denying Travis's motion for mistrial where the jury heard the numeric result of Travis's alco–sensor test; (4) denying Travis's motion for mistrial after the prosecutor expressed his personal opinion as to the evidence; (5) failing to instruct the jury on the statutory presumption of sobriety; (6) permitting the jury to view a law enforcement training video that depicted a horizontal gaze nystagmus (“HGN”) sobriety test; and (7) failing to merge her speeding and reckless driving convictions in sentencing. We agree with respect to Travis's last enumeration insofar as the offense of speeding should have merged into that of reckless driving, and we therefore vacate Travis's speeding conviction and sentence. As to Travis's other six enumerations of error, however, we discern no error and affirm.

Viewed in the light most favorable to the jury's verdict, see Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that after midnight on September 13, 2009, when Travis was 20 years old, she was stopped by a Georgia State Patrol trooper for exceeding the posted speed limit in a construction zone. During the traffic stop, the trooper detected an odor of alcohol emanating from Travis. He asked her step out of her vehicle in order to perform a HGN sobriety test and have Travis blow into a portable alco-sensor device, both of which indicated the presence of alcohol. Although Travis initially told the trooper that she had not had anything to drink, she later admitted to having consumed alcohol earlier in the day. Travis consented to a state-administered breath test, which resulted in blood alcohol readings of 0.037 and 0.036 grams. Travis was arrested for speeding and DUI, and was later charged with reckless driving.

1. Travis argues that there was insufficient evidence to support her reckless driving conviction.1 On appeal from a criminal conviction, we view the evidence in a light most favorable to the jury's verdict to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Jackson, supra, 443 U.S. at 319(III)(B), 99 S.Ct. 2781.

“Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” OCGA § 40–6–390(a). “The offense of reckless driving may be committed in a variety of ways, and whether a defendant's manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury.” (Citation omitted.) Bautista v. State, 305 Ga.App. 210, 212(1), 699 S.E.2d 392 (2010).

On appeal, Travis concedes that she was speeding, but challenges the absence of evidence showing any specific reckless acts committed by Travis. Even when unaccompanied by other traffic violations, however, speeding “can form the basis for a reckless driving conviction if the [S]tate presents evidence that a defendant was driving at an excessive rate of speed given the posted speed limit and the driving conditions existing at the time.” (Punctuation, footnote and emphasis omitted.) Fraser v. State, 263 Ga.App. 764, 765–766(1), 589 S.E.2d 329 (2003). Here, the state trooper testified that Travis was driving 32 miles per hour above the posted speed limit on a portion of the highway designated as a construction zone and along which construction barrels were situated. In addition, Travis was driving her vehicle late at night after having admittedly consumed alcohol. This evidence was sufficient to show that Travis was driving her vehicle in a manner exhibiting a reckless disregard for the safety of others. Therefore, we affirm Travis's reckless driving conviction.

2. Travis contends that the trial court erred by denying her motion to exclude the results of a state-administered breath test, arguing that the state trooper's implied consent warning was misleading, inaccurate, and ambiguous.

When we review a trial court's decision on ... motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court's findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga.App. 874, 611 S.E.2d 139 (2005).

One who operates a motor vehicle on Georgia's highways is deemed to have given consent to chemical testing of a bodily substance to determine the presence of alcohol or other drugs. Although consent is implied, before test results may be admitted into evidence the state must show that the accused had been advised of his rights under the Implied Consent Statute.

(Footnotes omitted.) State v. Peirce, 257 Ga.App. 623, 625(1), 571 S.E.2d 826 (2002); see OCGA § 40–5–67.1(b). For suspects under the age of 21, OCGA § 40–5–67.1(b)(1) requires the arresting officer to give an implied consent notice stating in pertinent part that [i]f you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.” The statute further provides that the implied consent notice “need not be read exactly so long as the substance of the notice remains unchanged.” OCGA § 40–5–67.1(b).

Here, the videotape of the stop and arrest shows that the state trooper read Travis the appropriate implied consent notice for an underage suspect, but initially misstated the legal limit as “0.082,” before correcting himself within one second to indicate the legal limit as 0.02.2 Travis thereafter agreed to submit to a state-administered breath test, which registered blood alcohol readings of 0.037 and 0.036. The trial court denied Travis's motion to exclude the results of her breath test, finding that the implied consent notice was properly read in light of the trooper's correction.

“The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” (Punctuation and footnote omitted.) In the Interest of R.M., 305 Ga.App. 483, 485(1), 699 S.E.2d 811 (2010). In arguing that the state trooper's implied consent notice was not substantively accurate in this case, Travis relies primarily on Kitchens v. State, 258 Ga.App. 411, 574 S.E.2d 451 (2002). However, that case is distinguishable. There, the arresting officer “drastically overstat[ed] the legal limit of blood alcohol concentration as 10 grams instead of 0.10 grams. Kitchens, supra, 258 Ga.App. at 412–414(1), 574 S.E.2d 451. The officer made this overstatement twice—once when he read the implied consent notice and again in response to the defendant's confusion about the officer's implied consent. Id. at 412(1), 574 S.E.2d 451. Significantly, the officer in Kitchens not only repeatedly overstated the legal limit, but also misinformed the defendant that her Alabama driver's license would be suspended if she refused to submit to the breath test. Id. at 412–413, 414(1), 574 S.E.2d 451 ([E]ven assuming that drastically overstating the legal limit of alcohol concentration had no effect on [the defendant's] decision to submit to the state's test, the record discloses a clearer causal connection between the officer misinforming [the defendant] about the consequences of her refusal to take the test and her decision to submit to the test.”).

Here, unlike the implied consent notice in Kitchens, the state trooper's misstatement of the legal limit amounted to a single slip of the tongue; he immediately corrected himself to indicate the legal limit as 0.02 and otherwise provided no additional misstatements. Moreover, the videotape recording demonstrates that before the trooper read the implied consent notice, Travis told the trooper that she knew 0.08 grams was the legal limit applicable to individuals over the age of 21. Under the circumstances of this case, we cannot say that the trooper's initial overstatement of the legal blood alcohol concentration, which he corrected immediately, was so misleading that it rendered Travis incapable of making an informed decision about whether to submit to chemical testing. Therefore, the trial court did not err in denying Travis's motion to exclude the breath test results.

3. Travis argues that the trial court erred by denying her motion for mistrial after the jury heard the numerical result of the alco-sensor test. “The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial.” (Citation omitted.) Underwood v. State, 218 Ga.App. 530, 534(3), 462 S.E.2d 434 (1995).

An alco-sensor is used only as an initial screening measure that gives a positive/negative result and aids the police officer in determining probable cause to arrest a motorist suspected of DUI of alcohol. Heller v. State, 234 Ga.App. 630, 632(...

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7 cases
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    • February 22, 2012
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    ...alcohol. It is not a tool used to determine the amount of alcohol in a person's blood[.]" (Citation omitted.) Travis v. State , 314 Ga. App. 280, 283 (3), 724 S.E.2d 15 (2012).3 In relevant part, OCGA § 40-6-391 provides: "(a) A person shall not drive or be in actual physical control of any......
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    • James Publishing Practical Law Books Is It Admissible? Part IV. Demonstrative Evidence
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