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Viau v. State2/21/2003
After a bench trial, Shearron Viau was convicted of driving under the influence of alcohol to the extent it was less safe for her to drive, driving with an alcohol concentration of 0.08 grams or more, and failing to maintain lane. On appeal, she challenges the sufficiency of the evidence to support her convictions, the exclusion of certain expert testimony, and the admission of the results of the State-administered breath test. Finding no reversible error, we affirm.
1. Viau contends that the evidence was insufficient to support her convictions. On appeal from a criminal conviction, we view the evidence in the light most favorable to the judgment, and the defendant no longer enjoys the presumption of innocence.
An appellate court does not weigh the evidence or determine witness credibility but only determines that the evidence to convict is sufficient under the standard of Jackson v. Virginia . Conflicting testimony is a matter of credibility for the finder of fact to resolve. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State's case, we will uphold the factfinder's verdict. [Cit.]
The State presented the testimony of a police officer who had been assigned to a DUI Task Force for about six years. At approximately 1:00 a.m. on August 31, 2001, the officer saw Viau's car drive in and out of its lane and followed it for about two miles, during which time it continued to weave, and at times, occupied more than one lane. The officer stopped the car, approached Viau, and questioned her. He noticed that Viau's speech was slurred, that her eyes were bloodshot, and that she emitted a strong odor of alcohol when she spoke. Viau told the officer that she had consumed three glasses of wine that evening and was "drunk." She asked whether the officer could follow her or take her home. He told her that would not be an option. After exiting her vehicle, she was unsteady on her feet. Viau refused to take the alco-sensor test. Based on his observations, training, and experience, the officer concluded that Viau was under the influence of alcohol to the extent that she was a less safe driver and placed her under arrest. He then read Viau the implied consent notice, and she agreed to submit to a breath test. An Intoxilyzer 5000 registered her alcohol concentration at 0.161 and 0.171 grams.
(a) OCGA § 40-6-391 (a) (1) makes it unlawful for a person to drive a car while under the influence of alcohol to the degree that it is less safe for that person to drive. The evidence as set forth above was sufficient to allow a rational trier of fact to conclude that Viau was a less safe driver than she would have been had she not been under the influence of alcohol.
(b) OCGA § 40-6-391 (a) (5) makes it unlawful for a person to drive a car while that person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving. Ample evidence supported Viau's conviction for violating that Code section.
(c) OCGA § 40-6-48 (1) provides that " vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." Arguing that she did not violate that Code section, Viau points to the arresting officer's testimony that her driving had not compromised the safety of any other car. Further, pointing to her trial testimony that condominiums were being constructed at the point where she was stopped, Viau claims that she was driving outside her lane to avoid barrels placed along the edge of the road.
Weaving without reason into nearby l
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