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Yount v. State5/9/2001
Arthur White Yount was convicted after a jury trial for driving under the influence of alcohol to the extent that it was less safe to drive and driving under the influence with an unlawful alcohol concentration. Yount enumerates three errors on appeal: (1) the exclusion of his expert witness' testimony; (2) the denial of his motion for mistrial based on the fact that jurors were sleeping during the trial; and (3) the admission of the Intoxilyzer 5000 inspection certificates in the absence of the proper foundation. We affirm.
On appeal, "this court views the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence." Further, " here the evidence is uncontroverted and there is no issue as to witness credibility, . . . we review de novo the trial court's application of the law to the undisputed facts."
The uncontroverted evidence presented at trial shows that at approximately 1:11 a.m. on April 26, 1997, Yount stopped at a roadblock on East Paces Ferry Road in Atlanta. Officer Michael Pulliam, who was working the roadblock, testified that when he asked Yount for his driver's license and proof of insurance, "[Yount] was slow and listless like he was being impaired in some manner." Pulliam also smelled alcohol coming from Yount's window and noticed that Yount's eyes were glassy, his speech was slurred, and his skin was flushed. Consequently, Pulliam told Yount to pull over to the side of the road.
Pulliam asked Yount to participate in field sobriety tests, and Yount agreed to do so. Pulliam administered the horizontal gaze nystagmus, walk-and-turn, and leg-raise tests. On the horizontal gaze nystagmus test, Yount exhibited six out of six clues, which indicated the possibility of impairment. On the walk-and-turn test, Yount exhibited six out of a possible eight clues of impairment. Finally, Yount exhibited four out of four clues of impairment on the leg-raise test. Yount also had a positive alco-sensor reading.
As a result of Yount's performance on the sobriety tests and Pulliam's observations, Pulliam determined that Yount was a less safe driver and arrested him for driving under the influence of alcohol. Pulliam read the implied consent warning to Yount, who then agreed to take a breath test. Officer A. M. Corroto of the City of Atlanta Police Department administered Yount's breath test. Officer Corroto testified that the Intoxilyzer 5000 was in good working order and that he followed the correct procedures as he administered the breath test. Yount had an alcohol concentration of .164 grams on the first breath sample and .165 grams on the second breath sample.
1. In Yount's first enumeration of error, he argues that his convictions should be reversed because the trial judge excluded the testimony of his expert witness, Kenneth Habben. We disagree.
Yount's counsel offered Habben as an expert on infrared breath- testing machines, on the use of the machines to estimate breath alcohol, and in the fields of chemistry and toxicology. Habben testified that he had a bachelor's degree in chemistry and had retired as the chief toxicologist from the South Carolina State Law Enforcement Division approximately eighteen months earlier. As the chief toxicologist, Habben was the head of the section that checked blood and urine samples for alcohol and drugs. Further, Habben was familiar with infrared breath-testing methods.
During his voir dire, Habben testified that South Carolina uses infrared breath-testing devices that are different from those used in Georgia, though he thought the machines were basically the same. Also, he was not certified to perform breath tests in Georgi
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