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Forshman v. State7/29/1999
In the Court of Appeals of Georgia
EL-057C
Carl A. Forsman appeals his convictions by a Fulton County Traffic Court jury for the following crimes: (1) DUI - less safe driver (OCGA § 40-6-391 (A) (1)); (2) two counts of speeding (OCGA § 40-6-181); and (3) weaving (OCGA § 40-6-48). We affirm.
The facts, viewed in the light most favorable to upholding the verdict, showed that, at approximately 1:45 a.m. on December 15, 1996, Forsman was driving 75 m.p.h. in a 55 m.p.h. speed zone, while "weaving from lane to lane" without using his turn signals. Atlanta Police Department Officer Michael Pulliam observed that, while Forsman was abruptly changing lanes, other drivers were forced to change lanes in order to avoid being hit by Forsman's truck. The officer followed Forsman on Interstate 75-85 north in Atlanta for approximately one to two miles before turning on his blue lights as Forsman's truck exited the interstate. Forsman did not stop right away and passed several areas where he could have pulled over before finally stopping his truck. Forsman immediately exited his vehicle and walked toward the officer; the officer testified that Forsman "was holding onto his vehicle for support." Forsman emitted a strong odor of alcohol, his skin was "blushed," and he appeared unbalanced while standing. Forsman's passenger was "extremely intoxicated." The officer asked Forsman to participate in field sobriety tests, and Forsman complied with and failed the horizontal gaze nystagmus test ("HGN") before deciding that he did not want to take additional tests. At that point, the officer arrested Forsman and placed him in the patrol car, where he gave an implied consent notice. Forsman consented to a blood alcohol test, but the results were not introduced at trial. Forsman was convicted by a jury in July 1998. He timely appeals. Held:
1. As an initial matter, we find that the evidence presented at trial was sufficient for a rational juror to find Forsman guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, supra.
2. Further, Forsman's contention that his convictions were based solely on circumstantial evidence is contrary to the record before us. The State presented both circumstantial and direct evidence, and the trial court properly charged the jury regarding its consideration of such evidence. See Tomko v. State, 233 Ga. App. 20, 21-22 (2) (503 SE2d 300) (1998). Accordingly, this enumeration is without merit.
3. Forsman contends that the trial court's admission of evidence regarding his refusal to perform additional field sobriety tests after the HGN violated his constitutional rights against self-incrimination under the Georgia Constitution. See Ga. Const. of 1983, Art. 1, Sec. 1, Par. 16. However, it is undisputed that Forsman was not in custody at the time of his HGN test or at the time of his refusal to take additional field sobriety tests. Officer Pulliam pulled Forsman over on the basis of the traffic offences and was entitled to temporarily detain Forsman while he determined the nature of the situation and conducted field sobriety tests. Daugherty v. State, 182 Ga. App. 730, 731 (2) (356 SE2d 902) (1987). "Such detentions do not trigger the requirements of Miranda v. Arizona. [Cit.]" Lankford v. State, 204 Ga. App. 405, 406 (2) (419 SE2d 498) (1992). Since Forsman was not arrested until after he failed the HGN and refused to take additional field sobriety tests, there was no violation of his constitutional right against self-incrimination. Id. at 407. Accordingly, the evidence of Forsman's refusal was admissible and there was no error.
4. Forsman claims that the trial court's admission of the results of his bre
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