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Casey v. State10/8/1999
Mc-098C
Defendant was tried before a jury and convicted of driving under the influence of alcohol.
Officer Christopher McGrath of the Gwinnett County Police Department testified that, after stopping defendant for speeding at about 10:00 in the evening on August 15, 1997, he smelled alcohol on defendant's breath and noticed that defendant's speech was slurred, that defendant's eyes were red and glassy, and that defendant's face was flushed. Officer McGrath testified that defendant was unsteady on his feet; that defendant failed several field sobriety tests, and that defendant admitted that he had consumed a couple of alcoholic beverages before driving. Officer McGrath opined that, based on his on-the-scene observations and his experience, defendant was under the influence of alcohol to an extent that it was less safe for him to drive.
Defendant testified on his own behalf at trial and admitted that he had consumed two glassfuls of straight liquor and a "couple of sips" of another alcoholic beverage less than three hours before driving. Defendant also admitted that these drinks caused him to feel relaxed, but he opined that the drinks did not cause him to be a less safe driver.
This appeal followed the denial of defendant's motion for new trial. Held:
1. Defendant contends the trial court erred in denying his motion for directed verdict, arguing that there is insufficient evidence to support his conviction. We do not agree. Defendant's admissions that he had consumed straight liquor within three hours before driving and that this alcohol caused him to feel somewhat relaxed, along with Officer McGrath's testimony concerning defendant's intoxicated appearance and traffic violation (exceeding the posted speed limit by 20 miles per hour), overwhelmingly supports the jury's finding that defendant is guilty, beyond a reasonable doubt, of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).
2. Defendant contends in his first enumeration of error that the trial court should have granted his motion for new trial because the trial court's clerk did not file an accusation against him for the charged offense until four days after he was sentenced. Defendant reasons that this purported deficiency means that the trial of the case against him was a nullity because "issue never properly joined" under OCGA § 17-7-94.
Although this enumeration of error does not appear to be supported by symmetrical logic or controlling authority, we need not address the substance of defendant's claim because the record does not support his assertions. The record citations which defendant's appellate counsel provides in support of this enumeration of error are counsel's own application for leave of absence in the trial court and a trial transcript excerpt where the trial court excuses the jury for a lunch break and admonishes them not to discuss the case. The relevant portions of the record show that the accusation against defendant was filed in the trial court on December 4, 1997; that a form reflecting defendant's waiver of arraignment and not guilty plea was filed on January 6, 1998; that a trial transcript was filed showing that defendant was tried before a jury on November 18 & 19, 1998, and that defendant's judgment of conviction and sentence was filed on November 20, 1998.
3. Defendant contends the trial court erred in admitting evidence of the results of his breath test (.97 grams) because the law enforcement officer who administered the test admitted that he did not operate the breath testing machine ("Intoxilyzer 5000") according to the manufacturer's operating directions. While we
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