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Duvall v. State6/13/2001
y offense arising out of the acts concerning which the officer had at least reasonable grounds to believe that a violation of OCGA § 40-6-391 occurred." In this instance, the arresting officer knew that Duvall was driving with a revoked license. Thus, Duvall was arrested in connection with this driving- related offense as well as the outstanding warrants. Although Burke makes it clear that driving with a suspended license alone is not grounds for invoking the implied consent law, Burke is distinguishable because in that case the defendant displayed no outward sign of possible intoxication, including no odor of alcohol. Here, however, the officer identified a strong odor of alcohol on Duvall's person.
We find Clay v. State, upon which Duvall also relies, to be inapposite. Clay stands for the proposition that a "less safe" DUI conviction cannot be supported solely on evidence that the defendant smelled of alcohol. Here, the strong odor of alcohol on Duvall's person was part of the state's justification for commencing the implied consent testing procedure. The results of the tests supported Duvall's per se DUI conviction.
3. Finally, Duvall argues that the evidence was insufficient to convict him for driving under the influence to the extent he was a less safe driver. However, we need not address this enumeration. The trial court merged this count into the OCGA § 40-6-391 (a) (4) conviction for driving with an unlawful blood-alcohol content. The only DUI sentence was entered on that count. We need not consider an enumeration of error which addresses the sufficiency of the evidence to convict on a count on which the trial court failed to enter judgment.
Judgment affirmed.
Blackburn, C. J., and Pope, P. J., concur.
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