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Driver v. State10/22/1999
rofessional opinion that Driver was under the influence of alcohol to the extent that she was less safe to drive. Driver urges that the officer's opinion testimony addressed the ultimate issue and thus invaded the jury's province. Setting aside whether Driver waived this issue by not objecting when the officer first gave this opinion, we hold that a court in its discretion may allow a trained and experienced officer, such as the officer here, to render such an opinion based on the officer's personal observations of the defendant.
4. Driver argues that the court erred in allowing the State to introduce her two prior DUI convictions. She claims that the State did not make the three affirmative showings required by Williams v. State to introduce similar transactions. This argument is without merit.
The first affirmative showing is that the State seeks to introduce the similar transactions for an appropriate purpose. Here the prosecution stated that it sought to show bent of mind and course of conduct, which are appropriate purposes for introducing prior DUI convictions in a pending DUI charge.
The second affirmative showing is that the accused committed the prior DUI. Here the prosecution had an officer testify as to the circumstances of each prior DUI conviction and confirm that Driver was the defendant in both cases.
The third affirmative showing is that there is sufficient similarity between the prior DUIs and the current charge. Here the prosecution cited to Kirkland v. State, which held that in a pending DUI charge a prior DUI conviction is "essentially committed under the same factual circumstances" as the DUI offense at issue, regardless of any slight variance of facts such as the type of vehicle driven or the degree or source of intoxication. Subsequent cases have confirmed that regardless of the circumstances surrounding its commission, a prior DUI offense is logically connected to a pending DUI charge, for the prior charge is relevant to establish that the perpetrator has the bent of mind to drive after consuming alcohol.
Here the prosecution showed additional similarities between the prior and pending DUI charges, in that in each Driver was driving the same Toyota truck in the late night or early morning hours. The court did not abuse its discretion in finding the State made the Williams showings and in admitting the prior transactions.
5. Driver complains that the court erred in charging the jury that police may search a driver arrested for DUI for both drugs and alcohol which could be the basis for the driver's intoxication. She does not claim that the charge was an inaccurate statement of law, but that the charge did not fit the facts of the case. She points to the officer's testimony that the only search was of Driver's purse, which search was for inventory purposes and which resulted in the discovery of the marijuana. Because this alleged error pertains to Driver's possession of marijuana, it was mooted by her voluntary admissions at trial that her purse contained marijuana.
Moreover, the charge was not reversible error. Police may search an arrestee and items in her possession for inventory purposes or for the purpose of discovering evidence of the charged crime. Because either would have been acceptable here, the jury charge referencing the "discovering evidence" purpose but not the inventory purpose was, if anything, favorable to Driver. The jury was left with the impression that police could search only to discover evidence of the charged crime, not that the police could search for inventory purposes as was the purpose police testified to here. Thus, the error was harmless as to Driver.
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