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Abelson v. State9/15/2004
Following a bench trial, the trial court found Brett Ashton Abelson guilty of driving under the influence of alcohol to the extent it was less safe for him to drive, driving with an unlawful alcohol concentration, driving with an unlawful alcohol concentration while under the age of 21, and driving too fast for conditions. [FN1] Abelson appeals, arguing that the evidence was insufficient to support his convictions. For the reasons that follow, we affirm in part, reverse in part, and remand for re-sentencing.
"The standard of review for an appeal from a criminal bench trial requires us to view the evidence in a light most favorable to support the trial court's judgment and determine whether a rationale trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes charged." [FN2] So viewed, the evidence shows that on June 19, 2002, Officer Ryan Wheeler of the Stone Mountain Park police department was dispatched to the scene of an automobile wreck. When he arrived, he saw Brett Abelson standing behind a car that had a bent rear tire wheel. Wheeler noted a distinct odor of alcohol "in the air" and redness in Abelson's eyes. He also noted that Abelson "was slightly swayed but that's not unusual for someone who just had an accident." Another officer who responded to the scene testified that Abelson appeared disoriented, had bloodshot eyes, a strong odor of alcohol on his breath, and did not "seem to be too comfortable with standing." Officer Wheeler also observed skid marks measuring approximately 216 feet. And approximately ten feet from the car, officers found two partially empty bottles of alcohol in a bag containing prescription medication belonging to Abelson.
Abelson, who was 19 years old, admitted to Wheeler that he lost control of the car when he was "showing off for his girlfriend by driving fast." He also admitted consuming two and a half or three alcoholic drinks that night, although there is no indication in the record as to when he started drinking. After Abelson exhibited signs of intoxication in the walk-and-turn test and in the horizontal gaze nystagmus field sobriety test, Officer Wheeler placed him under arrest, read him the implied consent warning, and asked him to submit a breath sample.
Following the arrest, Officer Wheeler transported Abelson to the Dekalb County Sheriff's office. Abelson subsequently performed a breath test on the Intoxilyzer 5000, which produced two breath samples registering 0.139 and 0.136 respectively. Abelson did not testify at trial.
The trial court found Abelson guilty of driving under the influence to the extent it was less safe for him to drive, driving with an unlawful alcohol concentration, driving with an unlawful alcohol concentration while under the age of 21, and driving too fast for conditions. For purposes of sentencing, the trial court merged all three alcohol convictions.
1. First, Abelson challenges the sufficiency of the evidence as to driving with an unlawful alcohol concentration, asserting that the State failed to prove that his alcohol concentration exceeded the legal limit within three hours after he ceased driving his car. We agree.
*2 Georgia law provides, in relevant portion, that
[a] person shall not drive or be in actual physical control of any moving vehicle while ... [t]he person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended. [FN3]
We acknowledge, as the parties do, that "such offense may be proved by circumstantial evidence, which need not exclude every inference and hypothesis except guilt, but only those reasonable inferences and hypotheses." [FN4] He
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