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Birnbrey6/12/2000
ut Fox also testified that Campbell did not seem confused and admitted he did not conduct any field testing of him. Nor was any blood/alcohol testing ever performed. Based on his brief encounter with Campbell, Fox deduced that he had a blood alcohol level well over .10. But these observations about Campbell's condition occurred several hours after Campbell left the luncheon. While this testimony constituted circumstantial evidence that Campbell may have been intoxicated earlier in the day, it did not demand such a finding. McElroy, supra.
Tombassa also offered the affidavit of J. Phillip Hancock as an expert witness. Hancock, a former employee of the State Crime Lab, stated that between 1972-1983 he had studied the metabolism, effect, and absorption of alcohol. This expert surmised that at the time Campbell left the luncheon, he would have had a level of intoxication of .15 or greater, assuming that Campbell did, in fact, have a blood alcohol level of .10 or greater 3.75 hours later. Hancock opined that " f Defendant Campbell was showing manifestations of having a blood alcohol level of .15, the people with him should have noticed a level of substantial intoxication."
Again, such circumstantial evidence would not defeat positive, direct testimony to the contrary. Tombassa's effort to impute constructive knowledge to the persons with Campbell is unpersuasive. Drawing an inference premised on a nonexistent fact, " f Defendant Campbell was showing manifestations," cannot surmount positive direct testimony that Campbell appeared and acted "normal" to the attendees of the luncheon. Rather, the uncontroverted evidence of record demonstrates that while at the luncheon, Campbell did not appear to be in a "state of noticeable intoxication."
Nor can OCGA § 3-3-22 save Tombassa's case. OCGA § 3-3-22 provides that " o alcoholic beverage shall be sold, bartered, exchanged, given, provided, or furnished to any person who is in a state of noticeable intoxication." But in the absence of evidence that Campbell appeared noticeably intoxicated, this claim lacks a required element. Compare Whelchel v. Laing Properties, 190 Ga. App. 182, 183 (1) (378 SE2d 478) (1989). In these circumstances, we find that Birnbrey was entitled to judgment as a matter of law. Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 779 (n.1) (257 SE2d 186) (1979); Brewer v. Southeastern Fidelity Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) (1978).
2. In light of this holding, we need not reach Birnbrey's remaining enumerations of error.
Judgment reversed. Ruffin and Ellington, JJ., concur.
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