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Stephens v. State10/22/2004
xclude every reasonable inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt." (Citations and punctuation omitted; emphasis in original.) Johnson v. State, 194 Ga.App. 501, 501- 502(1), 391 S.E.2d 132 (1990). That a person is found behind the wheel with the engine running, the lights on, and passed out or otherwise apparently intoxicated constitutes circumstantial evidence from which a jury could infer the operation of a motor vehicle while intoxicated. Phillips v. State, supra; Johnson v. State, supra at 502, 391 S.E.2d 132. Further, "the refusal to submit to a blood alcohol test [creates] an inference that the test would reveal the presence of a prohibited substance and bears directly on the issue of the sufficiency of the evidence. Fairbanks v. State, [244 Ga.App. 123,] 124 [534 S.E.2d 529 (2000) ]." Stearnes v. State, supra at 523(1), 583 S.E.2d 195.
Stephens was found in a parked vehicle not entirely in the parking lot in issue and occupying two parking spaces inside it. He was then behind the steering wheel passed out with the engine running and the lights on, apparently having vomited. Moreover, he failed the field sobriety tests administered at the scene; drove after medicating himself for anxiety; had wine with him on his day trip; and refused to submit to State-administered chemical testing. Such circumstantial evidence was sufficient to authorize a rational trier of fact to find Stephens guilty beyond a reasonable doubt of DUI--less safe driver. Phillips v. State, supra; Johnson v. State, supra at 501-502(1), 391 S.E.2d 132; Stearnes v. State, supra. That the trial court obviously rejected Stephens's denials and hypothesis to the contrary was not error. This it was authorized to do. Childress v. State, supra; Fuller v. State, 166 Ga.App. 734, 735(1), 305 S.E.2d 463 (1983).
Finally, we point out that the State has failed to file an appellate brief in this case notwithstanding our order to do so under Court of Appeals Rule 26(b) entered on September 15, 2004. Accordingly, we find the State in contempt and impose a sanction of $500 against the Solicitor of the Municipal Court of East Ellijay for the foregoing violation of our September 15 order.
Judgment affirmed.
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