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George v. State3/2/2000
A jury found Gabriel George guilty of driving under the influence. George appeals, challenging evidentiary rulings and asserting that the trial court damaged his credibility with the jury. We have examined George's claims and determined that no reversible error occurred.
Therefore, we affirm.
On July 11, 1998, at approximately 2:00 p.m., Officer Anthony Dubois of the Forest Park Police Department went to George's residence in response to George's report that someone had stolen his van. Officer Dubois testified that George's clothes were disheveled, his eyes were glassy, he smelled of alcohol, his speech was slurred, and he was having difficulty maintaining his balance. He testified that George told him that he had been drinking alcoholic beverages earlier at a neighbor's apartment, and that one of his neighbors had taken his van. Officer Dubois went to the neighbor's apartment, where the door was answered by a man who "could barely walk" and where he saw evidence of recent consumption of alcoholic beverages. Someone there told the officer that two men had taken George's van to visit a family member.
Moments later, two men drove up in George's van. Because the two men spoke limited English, Officer Dubois summoned a police officer who could translate. After talking with the two men, the translating officer reported to Officer Dubois that George had charged them $20 to use the van to take family members shopping. Officer Dubois testified that George then admitted that he had charged the two men for using his van and said that he no longer wanted to pursue the matter. As Officer Dubois completed his police report at approximately 3:00 p.m., he observed George drinking beer.
Two hours later, Officer Dubois saw George driving his van. After observing him cross the yellow centerline, Officer Dubois stopped George because he knew that he had been drinking earlier that day. Officer Dubois noticed George's red eyes, difficulty in maintaining balance, slurred speech, and strong odor of alcohol.
Officer Buchtenic, who was present at the arrest scene and who had special DUI training, including certification to use the Intoxilyzer 5000, testified that George had a strong odor of alcohol, that his eyes were bloodshot, that his speech was slurred, that his walk was unsteady, and that George's alkosensor test results indicated the presence of alcohol. Officer Buchtenic determined that George was under the influence and a less safe driver, arrested him, and transported him to a police station where he conducted a breath test using the Intoxilyzer 5000.
At trial, both officers stated that George did not blow enough breath into the Intoxilyzer for them to obtain a valid sample. They testified that although George appeared to fill his lung cavity with air, he then sucked on the tester, exhaled to the side of the tester, or stopped exhaling before the required five to eight seconds. After two insufficient samples, George's results were considered to be a refusal, and he was charged with DUI to the extent that it was less safe for him to drive.
1. George asserts that the trial court erroneously overruled his objection to Officer Dubois's testimony that someone at a neighbor's apartment told him that two men had taken the van to visit a family member.
(a) George argues that because the testimony was hearsay, it should not have been admitted. But George testified to the same fact, i.e., that Officer Dubois had been told that George's van had been taken. Therefore, even if the admission of the complained-of testimony was error, the error was harmless.
(b) George also urges that the trial court damaged his credibility b
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